Watchdog to appeal to Supreme Court in case linked to Salmond files

The unprecedented move follows a lengthy battle over the release of documents linked to an investigation into whether Nicola Sturgeon breached the ministerial code.

Ms Sturgeon referred herself to independent adviser James Hamilton in 2019 over concerns she failed to record meetings and phone calls with her predecessor Alex Salmond and his former chief of staff after he was the subject of harassment complaints from two civil servants.

Mr Hamilton investigated and issued a report in March 2021 in which he determined the former first minister did not breach the code.

Benjamin Harrop, a member of the public, later submitted freedom of information (FOI) requests relating to this.

READ MORE: Scottish government found in contempt in 'bombshell' Salmond files ruling

The government initially argued information gathered by Mr Hamilton was not “held” by it in a legal sense, but this was rejected by David Hamilton, the Scottish Information Commissioner, and a subsequent appeal to the Court of Session was also refused.

Mr Harrop then requested internal communications relating to this appeal. Some of this information was withheld by the government, which cited legal professional privilege, but the Commissioner said this should be disclosed.

An appeal by the government on this matter was successful, and Mr Hamilton now wants to challenge this at the Supreme Court.

“My decision to seek leave to appeal this ruling to the Supreme Court has not been taken lightly,” the Commissioner said. “It is my view that this ruling runs contrary to the Parliament’s clear intention behind the FOI Act.

“There are significant implications and risks placed on the public’s right to access information because of this ruling – it is therefore clearly in the public interest that I seek to challenge this at the Supreme Court.”

Earlier this year, the Court of Session found the government in contempt of the Commissioner after it failed to comply with an FOI request, despite warnings from the watchdog.

Scottish Labour acting leader Jackie Baillie said: “Too often the SNP operates under a cloak of secrecy.

“Freedom of Information laws provide much-needed accountability in that context and the FOI Commissioner has been a powerful champion for transparency in public life.

“This legal challenge could have significant implications for the disclosure of information.

“However, it should not take lengthy legal disputes to get answers from the SNP government.

“We need to see an end to the culture of cover-up that the SNP has created and a renewed commitment to openness and integrity in government.”

A Scottish government spokesperson said: “As this is subject to live litigation it would not be appropriate to comment”.