The James Hamilton report - evidence
On 22 March 2021, a report by James Hamilton on the First Minister’s self-referral under the Scottish Ministerial Code was published.
On 5 April 2021, a FOI request was made to the Scottish Government for all written evidence submitted to Mr James Hamilton’s investigation into the First Minister.
The Scottish Government responded to this request, claiming that the information was not held, submitting that as an independent adviser on the Ministerial Code, Mr Hamilton was not subject to the Freedom of Information (Scotland) Act 2002 (FOISA). This was appealed to the Commissioner, who found that this information was held by the Scottish Government and required a new response to this request.
The Scottish Government appealed the Commissioner’s decision to the Court of Session which found in the Commissioner’s favour. The Scottish Government was therefore required to comply with the Commissioner’s decision.
The Scottish Government complied with the decision on 23 January 2024. The Scottish Government supplied the requester with links to information already available but withheld the remaining information on a number of grounds.
This request for the 'evidence’ collated during the James Hamilton investigation remains under live appeal with the Commissioner.
For clarity, the Commissioner considered a request for an unredacted version of the James Hamilton report in 2022. The Commissioner found that the unredacted report was correctly withheld (given court orders were in place).
The Legal Advice
Following the Court of Session’s decision, a FOI request was made for the legal advice given to the Scottish Government relating to it appealing the Commissioner’s decision.
The Scottish Government refused this request on the basis that the information was subject to legal professional privilege. This was appealed to the Commissioner.
On 9 September 2024, the Commissioner issued Decision 193/2024. The decision found that the public interest outweighed the application of the exemption and required the Scottish Government to disclose the legal advice.
The Scottish Government are required to disclose the legal advice, subject to appropriate redaction, by 26 October 2024.
