Commissioner welcomes Decision of the Court of Appeal

6 December 2023

Scottish Information Commissioner, David Hamilton has welcomed the Court of Session’s decision that information relating to an investigation by James Hamilton into Nicola Sturgeon under the Ministerial Code was held by the Scottish Government.

The Commissioner’s initial decision found that information stored on the Scottish Government’s systems by Mr Hamilton and his team was “held” by the Scottish Government for the purpose of FOI law, and should therefore be considered when responding to a related FOI request. The Commissioner required that the information - which had previously been excluded from the Scottish Government’s search - be accessed, reviewed and considered for disclosure under FOI. This decision was appealed by the Scottish Government in March 2023.  

In welcoming the Court’s decision to refuse the appeal, Commissioner David Hamilton said:

“I very much welcome this decision but find it extremely frustrating that tens of thousands of pounds of precious public funds have been spent on this case. 

"In future, I would urge public bodies to think very carefully about the merits of an appeal before pursuing this route. Failing to do so not only causes unnecessary pressure for my office but it can also result in significant and ongoing delays for the person who initially requested the information.

"In this case, the decision to appeal has so far contributed to an additional and ongoing delay of more than eight months for the requester. In light of this, I would strongly recommend that the Scottish Government take immediate steps to ensure this matter is resolved as swiftly as possible.”

The Scottish Ministers are now required to carry out a further review of this request, on the basis that the information requested is held by the Ministers. 

Read the full text of the Commissioner's decision which was subject to appeal.