An independent watchdog has made an unprecedented attack on the Scottish Government over a three year legal battle in connection with freedom of information requests relating to an inquiry into Nicola Sturgeon.

In an outspoken intervention, David Hamilton, the Scottish Information Commissioner, said appeals by the SNP administration against his rulings had "significantly delayed and frustrated" the "right to access information" and "cost Scottish public finances tens of thousands of pounds of money and hundreds of hours of staff time on what was ultimately shown to be a weak legal argument".

Mr Hamilton's comments come as a freedom of information (FoI) inquiry by The Herald revealed the government's actions had cost his office £30,000 in external legal costs.

Some of the spending was recovered by the Commissioner from the Scottish Government - which he pointed out put extra pressure on public finances.

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Amid previous criticisms of ministers' pursuit of the case, he added "the questions of proportionality in the Scottish Government’s decision to appeal are legitimate".

The long running case revolves around FoI requests dating back to 2021 made to the Scottish Government by a member of the public seeking details about Irish lawyer James Hamilton's report into Ms Sturgeon.

Mr Hamilton's inquiry was into whether Ms Sturgeon broke the ministerial code when her predecessor Alex Salmond was being investigated for sexual harassment by the Scottish Government.

(Image: Niall Carson) He ruled that she had not broken the code, however his report did express frustrations over redactions he was obliged to make because of court orders.

Following its publication a member of the public asked the government for "all of the written evidence submitted to Mr Hamilton as part of his investigation" including evidence from the former First Minister, her chief of staff and any other individuals within the Scottish Government.

His request was refused but the Commissioner overruled the decision - which the government then appealed to the Court of Session. The Court found in favour of the Commissioner in December 2023. 

Following that ruling, the member of the public requested copies of legal advice received by the Scottish Government relating to its decision to go to the Court of Session.

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The Scottish Government refused to provide the legal advice prompting the member of the public to appeal to the Commissioner who again ruled in the applicant's favour.

Ministers must disclose the legal advice by October 26 or make an appeal on the ruling at the Court of Session.

In an exclusive statement to The Herald Scottish Infomation Commissioner David Hamilton expressed his frustration with the Scottish Government's actions.

“Most importantly, this appeal has significantly delayed and frustrated the applicant’s right to access information. It has also cost Scottish public finances tens of thousands of pounds of money and hundreds of hours of staff time on what was ultimately shown to be a weak legal argument," he said.

“While I was able to recover some of my organisation’s £30,000 costs, these now have to be borne by other parts of the Scottish budget and the questions of proportionality in the Scottish Government’s decision to appeal are legitimate.

“It is imperative that public bodies think carefully about the merits of an appeal before pursuing an FoI case through the courts.”

SNP MSP Fergus Ewing, who in relation to the case last month accused the government of using the courts "as a means of keeping the truth from the public on matters of paramount public interest", described the Commissioner's intervention was "coruscating".

(Image: PA) He said: “This criticism , coming as it does from an entirely impartial public servant is coruscating of the Scottish Government.     

"The failure to share the withheld information with the Commissioner is a clear breach of normal process, and the  determination of the Scottish Government to conceal the legal advice - and indeed the unredacted version of report by James Hamilton himself - simply raises this question: 'What exactly has the Scottish Government got to hide?"

"In his decision letter, the Commissioner himself highlights circumstances where the Government must disclose its advice and is not entitled to withhold it from the public domain. These include where the legal advice discloses impropriety, and also where the advice is that there is no real legal basis for taking or defending legal action.

"Surely the Permanent Secretary and the Lord Advocate should now intervene to require that the Government finally discloses both the advice and the unredacted version of the Hamilton Report."

Responding to The Herald's FoI, the Scottish Information Commissioner revealed that its external legal costs in response to the challenge taken by the Scottish Government to the Court of Session came to £30,318.19. Of this sum, £27,470 was subsequently recovered from the Scottish Government.

The Commissioner also revealed it had also incurred a further costs of £6,784.30 in relation to external legal advice it received relating to the case in November 2022.

The costs do not include advice to the Commissioner by in house legal advisors.

James Hamilton’s inquiry 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 her predecessor Mr Salmond.

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

Former First Minister Alex Salmond giving evidence to the Holryood inquiry in February 2021 which set up to examine how the Scottish Government mishandled complaints against him. (Image: PA) Ms Sturgeon initially told Holyrood she first heard of the complaints against her predecessor when they met at her home on April 2 2018.

But it later emerged she discussed the allegations with Mr Salmond’s chief of staff, Geoff Aberdein, in her Holyrood office four days earlier.

Ms Sturgeon said she had forgotten the contents of her discussion with Mr Aberdein and it was her meeting with Mr Salmond which was “seared on her memory”.

Mr Salmond won a judicial review at the Court of Session in 2019 against the Scottish Government over the investigation with the judges ruling it unlawful and “tainted by apparent bias”.

Under the court ruling the Scottish Government had to pay £512,000 to Mr Salmond for his legal costs.

Mr Salmond was later cleared of 13 charges of sexual assault against nine women after a separate High Court trial in Edinburgh in March 2020.

A Scottish Government spokesperson 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.”