The Scottish Government is being urged not take any further legal action against the information watchdog in connection with a long running battle relating to a probe into former First Minister Nicola Sturgeon.

Fergus Ewing, SNP MSP for Inverness and Nairn, has made the appeal after the Scottish Information Commissioner issued a decision on Monday which requires the Scottish Government to disclose the legal advice it received on whether an earlier decision of the Commissioner should be appealed to the Court of Session.

Speaking exclusively to The Herald, the former cabinet secretary accused the administration of using the courts "as a means of keeping the truth from the public on matters of paramount public interest."

In the earlier decision, the Commissioner ruled that information relating to James Hamilton’s investigation into former First Minister Ms Sturgeon under the Ministerial Code was held by the Scottish Government and should therefore be considered by it when responding to freedom of information (FOI) requests. 

This decision was appealed to the Court of Session in March 2023, with the court swiftly finding in favour of the Commissioner in December 2023.  

The commissioner has now issued that legal advice surrounding the decision to appeal to the Court of Session on a case should be disclosed, with certain personal information redacted.

Speaking after the decision, Mr Ewing demanded costs of the dispute with the information commissioner be revealed.

"My conclusions are these: first, the Scottish Government is using the courts and litigation as a means of keeping the truth from the public on matters of paramount public interest. 

"Surely, they must now on principle, reveal the advice that they have fought so hard to keep secret, even from the commissioner himself." he said.

"Second, they must pledge that they will not further “spend, spend, spend” taxpayers money...that they won’t be launching yet another futile appeal to the Court of Session against their further defeat yesterday at the hands of the Commissioner.

He added: "They must also publish and reveal in full the whole legal costs incurred in all of these legal cases or challenges. I am writing to the First Minster to ask for full details of the amounts paid out."

The Scottish Information Commissioner had previously ruled that information relating to Mr Hamilton’s investigation into Ms Sturgeon under the ministerial code was held by the Scottish Government and should therefore be considered by it when responding to freedom of information (FOI) requests. 

This decision was appealed to the Court of Session in March 2023, with the court finding in favour of the commissioner in December 2023. 

In 2021, Mr Hamilton considered whether Ms Sturgeon misled MSPs about when she met Mr Salmond's chief of staff following harassment allegations made against Mr Salmond.

Mr Salmond had been cleared of all sexual assault charges at a criminal trial.

In his report, Mr Hamilton found Ms Sturgeon had not breached the ministerial code, but expressed his frustration that his findings had been heavily redacted by the government.

A member of the public then submitted an FOI to request the Scottish Government publish all the evidence gathered by Mr Hamilton as part of his investigation.

But the Scottish Government rejected the request, claiming it did not hold that information, leading to an appeal to the Information Commissioner.

The Commissioner found SNP ministers had been wrong to reject the request and ruled that they should reconsider the FOI request. But the Scottish Government appealed this ruling to the Court of Session.

A spokesperson for the Commissioner said: “In reaching his decision, the Commissioner recognises the strong public interest in maintaining the confidentiality of communications between a legal adviser and its client.

“However, in the specific circumstances of this case, the Commissioner notes that the appeal involved significant expenditure of public funds, and that the court acted swiftly in its refusal of the appeal. 

“The commissioner therefore considers that there is a strong public interest in understanding whether or not the authority proceeded with its court action against the legal advice received.

“The commissioner also notes that, under FOI law, it is the duty of a public authority to justify its conclusions for the application of any exemption, and to demonstrate where the balance of the public interest lies in cases where this test applies.”

The Commissioner’s decision requires that information be disclosed by 26 October 2024.

A Scottish Government spokesman said:  “The Scottish Government has received the Scottish Information Commissioner’s decision and is considering its contents. It would not be appropriate for us to comment further on a live appeal case.”