Scottish judges have presented a scathing assessment of the Scottish Government's case to withhold information into the investigation surrounding whether Nicola Sturgeon broke the ministerial code.

Earlier this month they threw out an attempt by ministers to keep secret evidence received by James Hamilton, the independent advisor on the ministerial code, who ultimately ruled the former First Minister did not breach the code.

However, shortly after Mr Hamilton's findings were published in March 2021 an FOI request to the government sought the publication of all evidence gathered by him.

READ MORE: Nicola Sturgeon, Scottish Government and FOI row explained

The government refused to release the material prompting the applicant to appeal to the Information Commissioner.

The Commissioner said the information should be released prompting in turn the government to appeal his decision.

During the appeal in the Court of Session the government's lawyer had argued ministers did not hold the information requested because Mr Hamilton was acting independently of and that the material was not their's to share.

However, in their judgement published today the judges said "there should be no scope for the introduction of technicalities and unnecessary legal concepts calculated to over-complicate matters". 

READ MORE: Scottish Government loses Nicola Sturgeon FOI appeal

It added: "Such an approach would be liable to restrict the disclosure of information in ways that run counter to the clear legislative policy." 

The ruling continued: "Whether information is or is not held by a public authority is fundamentally a question of fact.  Sophisticated legal analysis of the meaning of the concept of ‘holding’ information is neither necessary nor appropriate.

"It is clear from his decision that the Commissioner fully understood the law on what was intended by the concept of holding information and that he correctly applied the law to the facts and circumstances of the case. 

"He recognised, in particular, that the issue did not revolve around an interpretation of the arrangements made for Mr Hamilton’s independence from the Scottish Government, but turned instead on the narrower question of whether the information was held by the Scottish Ministers." 

It added: "The Ministers’ submissions seek to attach disproportionate weight to Mr Hamilton’s independence; they fail to acknowledge the wider context in which the investigation took place.  The context was the operation of a system designed to ensure compliance with the Scottish Ministerial Code.  Mr Hamilton’s role was essentially that of an adviser to the Scottish Ministers. 

"It is also significant in considering whether an appropriate connection exists to recall that the information was held on the Scottish Government’s IT systems.  

"In this connection it is notable that in their written submissions the Ministers accept that they (or their officials) could gain access to the information. They acknowledge that some of the email accounts of secretariat members had permission settings which allowed team members access and they accept that those inboxes were accessed on one occasion.

"The Ministers’ argument comes to this.  They are entitled to rely on access restrictions which they unilaterally created and which they could unilaterally retract.  Such an approach would in effect permit them to construct a technical barrier between them and the information with a view to putting the information beyond the reach of the freedom of information regime.  

"This would defeat the objective of open and transparent government."

Delivering the ruling immediately after arguments were made by counsel in the Court of Session last month, Lord Carloway said: “The court is satisfied that the information involved was held by the Scottish ministers in terms of the statute and we will therefore refuse this appeal.”

The ruling means Scottish ministers will have to reconsider the original freedom of information request, which may result in the investigation’s evidence being put into the public domain. 

However, ministers may refuse the request or redact significant sections of the information on other grounds.

Mr Hamilton’s investigation was instigated after Ms Sturgeon made a self-referral under the Scottish ministerial code following suggestions she had breached it by failing to properly record meetings and phone calls with Alex Salmond.

Those meetings took place between March and July 2018 and related to allegations of sexual misconduct made against Mr Salmond. 

The Scottish Government set up an inquiry into the complaints made against Mr Salmond.

But the former FM took the Scottish Government to court over the probe, with the government admitting defeat and that the application of a new process set up to investigate the matter had been unlawful.

Judges ruled the inquiry was "tainted with apparent bias", because the official who carried out the investigation had had contact with the complainers prior to the probe.

While Mr Hamilton’s final report was published in March 2021, the evidence gathered as part of his investigation was not.