Watchdog orders release of withheld Nicola Sturgeon inquiry evidence. as SNP Government called 'disappointing'

David Hamilton, the Scottish Information Commissioner, said the Scottish Government had wrongly kept some material under wraps and criticised its handling of the case.

He said it was only through the “diligence” of his staff that “failures” were uncovered, branding this “particularly disappointing”.

“While there is no evidence of impropriety, this nevertheless reflects poorly on the Scottish Government handling of this case, and I trust it will take urgent action to prevent such occurrences happening again,” he said.

READ MORE: SNP ministers spent £30k in court battle to withhold Nicola Sturgeon inquiry evidence

Ms Sturgeon referred herself to independent adviser James Hamilton in 2019 over concerns she failed to record meetings and phone calls she had 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, then submitted a Freedom of Information (FOI) request to the Scottish Government asking to be provided with all written evidence gathered by Mr Hamilton during his investigation, sparking a long-running transparency battle.

The Government initially insisted that as Mr Hamilton was an independent adviser on the ministerial code, he was not subject to FOI legislation.

However, the Information Commissioner intervened, ordering the Government to look at the case again. While ministers challenged this decision in the Court of Session, their appeal was refused.

READ MORE: Who is James Hamilton? And why is his report so important to First Minister Nicola Sturgeon's future?

In the wake of this, some information was supplied in January 2024, but the Government withheld further details, citing various exemptions under FOI laws.

In a new ruling, Mr Hamilton said that while some information was appropriately withheld, other material should be disclosed. He said the Government had failed to accurately interpret the scope of the request for information.

He also criticised the Government for “failing to disclose some information which fell within the scope of the applicant’s request and which it did not specifically identify as being exempt from disclosure”.

Mr Hamilton said the Government had been “wrongly withholding some information under the exemptions”. He ordered the disclosure of further material by January 12.

“This was a very complex case, and that complexity was compounded by the way in which elements of this case were handled by the Scottish Government,” Mr Hamilton said.

“When a public body seeks to withhold information under FOI law, it is the responsibility of that body to appropriately make their case to me.

“It is not for my staff to identify sensitive information on behalf of an organisation, or to make the case for an exemption on its behalf. Authorities must, therefore, ensure that its case is fully and appropriately stated in its entirety.

“It is also particularly disappointing that, had it not been for the diligence of my staff and their forensic analysis of this case, many of the failures that arose may have gone undetected.”

In his ruling, Mr Hamilton stressed he was “acutely aware of the sensitivity of the subject matter of the request and, consequently, some of the withheld information”.

Fergus Ewing, a former SNP minister who now sits as an independent, called on First Minister John Swinney to “publish all the documents that show the truth about the Sturgeon inquiry and the Salmond hounding by senior civil servants and others”.

Conservative MSP Murdo Fraser said: “This whole saga is sadly typical of the SNP’s approach to government, and their resistance to any form of scrutiny. Yet again they’ve been rebuked by the Information Commissioner for trying to evade the rules and told to take urgent action to mend their ways.

“We’ve had far too many instances of the SNP doing what they’ve done here – denying they hold information, then falsely claiming they needn’t supply it or simply failing to answer.

“If the Nats don’t want people concluding that something stinks about their conduct, they should drop their instinctive secrecy, be open and transparent and comply with the law.”

A Scottish Government spokesperson said: “We have received the decision of the Scottish Information Commissioner and are considering its terms.”