An independent watchdog has warned public bodies over embarking on costly legal appeals of its decisions after the Scottish Government agreed not to pursue further court action against in a long running freedom of information (FOI) battle.
David Hamilton, the Scottish Information Commissioner, earlier this month rebuked SNP ministers for their three-year legal challenge against releasing documents relating to Nicola Sturgeon’s conduct during the Alex Salmond inquiry.
Mr Salmond died suddenly of a heart attack in North Macedonia on October 12. He was 69.
In a statement to The Herald on October 7, Mr Hamilton accused ministers of having “significantly delayed and frustrated” the “right to access information” and of pursing a "weak" case at a significant cost to the public purse.
Information released separately at the time to The Herald, under FOI laws, revealed the government’s actions had cost Mr Hamilton’s office £30,000 in external legal costs.
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On Tuesday, as the deadline of October 26 approached for ministers to lodge an appeal against Mr Hamilton's ruling, published on September 9, or publish the documents as instructed then, the Scottish Government revealed it will publish the legal advice it took in relation to the FOI request appeal.
It is not known when this week the advice will be made available. Mr Hamilton yesterday published the legal advice his office had received relating to the case.
SNP MSP Fergus Ewing wrote to John Swinney last month warning the First Minister he could be at risk of breaching the ministerial code if he pursued legal action against the watchdog ruling.
In a letter, seen by The Herald, he wrote: "Can consideration be given as to whether to incur such further costs would be a waste of money and a breach of the ministerial code in respect of the rules in the finance manual and in the requirement of financial propriety."
The ministerial code, which sets out the rules for government ministers to work under, makes provision for "an accountable officer", a role which should be held by the permanent secretary.
"The essence of the accountable officer's role is a personal responsibility for the propriety and regularity of the public finances for which they have stewardship and ensuring the economic, efficient and effective use of resources," the ministerial code states.
“A substantial amount of public money has already been spent on previous court action relating to this matter so I welcome the Scottish Government’s decision to comply with my decision and disclose this information," Mr Hamilton told The Herald.
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"In the interests of transparency, I have also published the legal advice I received on this issue. I would, of course, urge all Scottish public authorities to think carefully about the merits of an appeal before pursuing an FOI case through the courts, given both the cost to the public purse and the inevitable delays that will arise for those who seek their information.”
Last night Mr Ewing welcomed the decision by the government to publish its legal advice but took aim at the administration's wider handling of the matter.
"This whole exercise has not only cost huge amounts of taxpayers money but has also raised serious questions about the Scottish Government," he said.
"They have been forced by The Herald's investigatory journalism to reveal their legal advice this week.
"We will see if they exercise their undoubted skills in redactions when the documents are finally made public."
In April 2021, a freedom of information request was made in an attempt to obtain all evidence submitted to the James Hamilton inquiry into whether Ms Sturgeon breached the ministerial code when she was First Minister.
Ms Sturgeon had referred herself to Mr Hamilton – the independent adviser on the ministerial code – in response to allegations she had misled Holyrood in relation to the inquiry into the botched investigation of harassment complaints against her predecessor Mr Salmond.
The Government argued it did not hold the information, claiming it was in a restricted part of its information management system as a result of Mr Hamilton’s inquiry.
The Information Commissioner later ordered ministers to divulge the information, with the Court of Session subsequently rejecting a Government appeal against the decision.
Another freedom of information request was then submitted for the legal advice relating to the decision to appeal.
Through the same process, the Information Commissioner ordered the Scottish Government to publish the advice, despite the ministerial code saying such a move is not normally taken.
But in his report, the commissioner said: “There is a strong public interest in understanding whether the (Scottish Government) proceeded against legal advice (or whether the prospects of success were a prominent consideration in the authority’s decision to appeal the commissioner’s decision).”
On Tuesday, the Scottish Government told the PA news agency it would provide the applicant with the legal advice by the October 26 deadline.
“The Freedom of Information (Scotland) Act 2002 reflects the longstanding convention that government does not disclose legal advice except in exceptional circumstances,” a spokesman for the Scottish Government said.
“This convention, which is also reflected in the Scottish Ministerial Code, is central to the processes of effective government in the public interest.
“It is intended to ensure that government is able to access full, frank and confidential legal advice to support decision-making, just as other organisations and individuals are able to.
“In this specific circumstance, however, all material within the scope of the decision will be released to the requester on or before October 26, as required by the commissioner.
“This decision has been reached after careful consideration, and does not set a precedent for future disclosure.”
Legal advice published on Wednesday that was received by the Commissioner ruled that the Scottish Government did hold the information the member of the public original sought in 2021 and was not restricted.
"In my view, on the basis of the facts and the factors summarised above, the information is held by the Scottish Ministers," the advocate David Johnston KC told the Commissioner in his legal advice.
"The investigation was instructed by the First Minister....Given the particular circumstances of the present referral, the remit in this case provided that the report of the investigation should be submitted to the Deputy First Minister.
"The investigation was subject to ‘ministerial oversight’, albeit it is made clear that secretariat staff should not disclose information outside the secretariat itself. The report was published on the Scottish Government website."
The advice added: "Second, it is clear... that there can be cases in which the access of a public authority to information is restricted, for example by the terms of a contract into which it entered with the person who holds the information. In cases of that kind, the correct conclusion may be that the authority does not hold the information. In my opinion, the situation here is different."
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