Government correct not to disclose privileged information on alleged Alex Salmond misconduct

Civil appeal judges have ruled the Scottish Government was correct not to disclose legally privileged information relating to a probe into Alex Salmond’s alleged misconduct.

Lord Pentland, Lord Malcolm and Lord Clark concluded that the Scottish Information Commissioner was not entitled to order Ministers to disclose the data.

The judges, who sat in the Inner House of the Court of Session, had heard submissions earlier this year about the matter by lawyers acting for both the Scottish Ministers and the Information Commissioner, David Hamilton.

The Government wanted the judges to overturn a decision made by the Information Commissioner, who enforces the enactment of Freedom of Information legislation, in March 2025.

Mr Hamilton’s decision arose from a request for information made by a member of the public, called Mr Benjamin Harrop, on December 7, 2023, to the Scottish Ministers requesting that they disclose “all emails, text messages, WhatsApps, minutes and other forms of communications” between “Ministers, SPADs, civil servants and other Scottish Government officials regarding… the court case known as The Scottish Ministers v The Scottish Information Commissioner”

Mr Harrop wanted the information up to and including December 6, 2023.

The Scottish Government’s lawyer Christine O’Neill KC says the information sought was covered by legal professional privilege (LPP). In law, this covers confidential advice given to clients by lawyers – the courts have repeatedly ruled that such information should be kept confidential.

Mr Hamilton’s advocate, David Johnston KC, told senior judges that the need to have the data, which is covered by lawyer-client confidentiality, available outweighed the need to keep it confidential.

However, in a judgment issued by the court on Thursday, Judge Lord Malcolm wrote of how the arguments made by the information commissioner’s lawyers did not meet the legal requirements needed to justify the disclosure.

Lord Malcolm, who delivered the judgment, wrote: “Generations of judges have guarded the administration of justice against the dangers inherent in the inhibition of the open and candid discussion necessary for sound legal advice, and likewise in relation to the confidential communications essential to the proper preparation for and conduct of legal proceedings.

“We find nothing in the Act which dilutes the fundamental importance of these considerations, which apply to LPP for both private individuals and public authorities.

“This is not to say that the exemption is elevated to an absolute status in respect of LPP.

“There will be occasions when any harm risked by disclosure will not outweigh the public interest in publication of information held by a public authority.

“We have not identified anything which could reasonably be so described in the Commissioner’s reasoning and have concluded that this constitutes an error in law which justifies upholding the Minister’s challenge to his decision.”

Mr Harrop made a request to the Scottish Ministers asking them to release all written evidence gathered by independent investigator James Hamilton during a probe in 2019.

The investigation was triggered after former first minister Nicola Sturgeon referred herself to the independent advisers on the Scottish Ministerial Code for an alleged breach on January 13, 2019, whilst she was still in office.

Her alleged breach was said to concern whether she failed to record meetings and phone calls in accordance with the code, and/or attempted to influence the conduct of the internal investigation into Mr Salmond’s alleged behaviour whilst he was in office as First Minister.

He was later acquitted in March 2020 following a trial at the High Court in Edinburgh on 13 charges, including sexual assault, indecent assault and attempted rape.

Mr Hamilton investigated and determined that Sturgeon had not breached the code.

The Scottish Ministers responded to Mr Harrop’s December 7 request on January 9, 2024 – the government, however, withheld information from his request on several different grounds.

One of the exemptions relied upon by the Scottish Ministers was section 36(1) of the Freedom of Information (Scotland) Act 2002 (“FOISA”) – that information covered by legal professional privilege does not need to be disclosed.

This prompted Mr Harrop to apply to the Commissioner to review whether the Scottish Ministers were entitled to make that decision.

Mr Hamilton accepted that the information being withheld was legally privileged, but he found that the legislation meant that it did not automatically mean it could be kept secret.

The Commissioner decided they had failed to do so and ordered the information to be disclosed.

The Scottish Ministers instructed lawyers to appeal the decision to the Inner House.

In the judgment published on Thursday, Lord Malcolm, who gave the judgment, also wrote of how the evidence showed that Mr Hamilton’s decision appeared to be influenced by his unhappiness at the actions of the ministers.

He wrote: “Unless some contrary implication can be read into the legislation, it appears that it does allow for circumstances in which the Commissioner investigates and determines a dispute of the present kind when he has a direct interest in the matter and without having seen the withheld information.

“This puts the Commissioner in a difficult position, not least in assessing whether the exemption covers any or all of the material. If he has doubts on this, how is he to resolve them?

“It seems clear that the Commissioner was unhappy that the Ministers did not volunteer the documentation to him, and that this was a factor, in our view an illegitimate factor, influencing his decision on the public interest test.”

Lord Malcolm wrote of how the judges will now hear submissions about what should happen in the light of the court’s decision. He said the matter could be remitted back to the information commissioner.

Lord Malcolm also wrote: “For the above reasons, the appeal is upheld.”