Scottish ministers did hold information gathered by Ministerial Code advisor during Nicola Sturgeon investigation

About this case:

• Citation:
  [2023] CSIH 46
• Judgment:
  External link
• Court:
  Court of Session Inner House
• Judge:
  Lord Pentland

The FOI request was made for the written evidence on which a report on Ms Sturgeon’s conduct by James Hamilton, an Independent Advisor on the Scottish Ministerial Code, was based. It was submitted that the Commissioner erred in determining that, for statutory purposes, the Ministers held the information stored in the restricted area used by Mr Hamilton.

Lord Carloway, the Lord President, heard the appeal alongside Lord Pentland and Lord Boyd of Duncansby. Mure KC and Reid KC appeared for the appellants and Johnston KC for the respondent.

Solely on behalf

On 13 January 2019, Ms Sturgeon referred herself for investigation by Mr Hamilton after she was accused of failing to disclose to her private ministerial office the basic facts of a series of meetings between herself and her predecessor as First Minister, Alex Salmond, in a period from March to July 2018, as well as other related activities. Mr Hamilton submitted a report to the Deputy First Minister in March 2021 concluding that Ms Sturgeon had not breached the SMC in respect of any of the issues referred to him for investigation.

A short time after publication of Mr Hamilton’s report, a member of the public, Mr Benjamin Harrop, made a request under the Freedom of Information (Scotland) Act 2002 to the Scottish Ministers for all of the written evidence submitted to Mr Hamilton as part of his investigation. This was to include evidence from the First Minister, her Chief of Staff and any other individuals within the Scottish Government who had submitted evidence.

The Scottish ministers declined to disclose the information on the grounds that information held on behalf of an independent advisor was not within the scope of FOISA, and that the information was contained in Mr Hamilton’s published report. Mr Harrop appealed to the Scottish Information Commissioner, which found that the Ministers had failed to identify all of the information they held which fell within the scope of the request, which included information gathered by Mr Hamilton.

It was submitted for the appellants that information held by a public authority on behalf of someone else was outside the scope of FOISA if it was held solely on behalf of that person. The independent nature of Mr Hamilton’s role meant he had to be regarded as separate from the Ministers.

For the respondent it was submitted that the question was a fundamentally factual one. The word “held” had be construed by its ordinary meaning, with no scope for technicality or unnecessary legal concepts calculated to overcomplicate matters.

Circular and unconvincing

Lord Pentland, delivering the opinion of the court, observed: “Whether information is or is not held by a public authority is fundamentally a question of fact. Sophisticated legal analysis of the meaning of the concept of ‘holding’ information is neither necessary nor appropriate. Technicalities which can arise in some similar areas of the law, for example the law of disclosure with its somewhat narrow distinctions between a document in the power, custody or possession of a person, simply do not apply to the question of whether information is or is not held by an authority.”

He continued: “The Commissioner gave full and detailed consideration to whether there was an appropriate connection between the information and the ministers, the content of the information, the circumstances in which it was created, and how it was held. In adopting this approach the Commissioner did not err in law; the factors to which he referred were all properly germane to the question as to whether the ministers held the information.”

Assessing whether there was a connection between the ministers and the requested information, Lord Pentland said: “The basis of the Ministers’ view that they did not hold the information depends fundamentally on the fact that they imposed internal restrictions on who could gain access to the information. This stance is circular and unconvincing. The very fact that the Scottish Ministers had the requisite control over the information so as to enable them put in place internal arrangements regulating access to it infers that they held the information; otherwise how could they have been entitled to impose those restrictions.”

He concluded: “The whole purpose of Mr Hamilton’s investigation was to consider whether the First Minister had breached the Scottish Ministerial Code. The Ministers were seeking advice on that question; they were not bound to accept the advice. The matter was one in which the Ministers had an intense and legitimate interest. The Code sets out the duties collectively incumbent on ministers. The information supplied for the purposes of the investigation is closely connected with the activities and functioning of the Scottish Government.”

The appeal was therefore refused, maintaining the effect of the Commissioner’s original decision requiring the Ministers to provide a new response to Mr Harrop.