STV NewsThe Scottish Information Commissioner (SIC) has ordered the Scottish Government to disclose the legal advice it received over its decision to appeal an earlier ruling by the body.
The SIC had told the Government that information relating to an investigation into Nicola Sturgeon by former Irish prosecutor James Hamilton should be considered when responding to freedom of information (FOI) requests.
Hamilton was probing whether the former first minister broke the ministerial code when her predecessor Alex Salmond was being investigated for sexual harassment. Both Sturgeon and Salmond were cleared of their respective investigations.
That decision by the SIC was sent to the Court of Session after the Scottish Government appealed it, although the watchdog won.
Following the verdict, an FOI request was sent to the Government asking that the legal advice relating to the appeal be published.
The Scottish Government refused the request, citing an FOI Act clause on confidential legal information.
That refusal was later appealed to the commissioner and in his latest decision, he found that while the FOI Act’s confidentiality exemption applies to the advice sought from the Scottish Government, the public interest favoured disclosure.
He has now asked for that information to be published but with personal information redacted.
Announcing the news, the watchdog said: “The circumstances of this case are particularly unusual in that, on this occasion, the Scottish Government exercised a rarely-used right to withhold information from the Commissioner when he considered the appeal.
“While relevant information must normally be provided to the commissioner, the FOI Act allows legal advice to be withheld where the advice relates to an organisation’s obligations under FOI law.
“The commissioner’s ruling was therefore made without direct sight of the legal advice.”
The commissioner said that while he recognises the strong public interest in maintaining the confidentiality of communications between a legal adviser and their client, the case involved “significant expenditure of public funds”.
AlbaThe commissioner said under FOI law public authorities have a duty to justify any exemptions and added that the Scottish Government’s reasoning was “largely generic with limited reference to the specific circumstances of the case”.
The decision concludes by noting that: “The commissioner expects to be enabled to carry out a full investigation of the public authority’s handling of the request…where he is only given the information to perform a more superficial examination, the actions of even an apparently reasonable authority are unlikely to prevail”.
The commissioner’s decision requires the information to be disclosed by October 26.
A Scottish Government spokesperson said: “The Scottish Government has received the Scottish Information Commissioner’s decision. It would not be appropriate for us to comment further on a live appeal case.”
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