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The Scottish Ministers v The Scottish Information Commissioner

Case reference number

XA10/23

Date of hearing

Wednesday, 6 December 2023

Division

First Division

Judges

Lord President, Lord Pentland and Lord Boyd of Duncansby

Agents and Counsel

For the Appellant (the Scottish Ministers)

  • Agents: Scottish Government Legal Directorate
  • Counsel: James Mure KC and Paul Reid KC

For the Respondent (the Scottish Information Commissioner)

  • Agents: Anderson Strathern
  • Counsel: David Johnston KC

Reclaiming motion (appeal)

Opinion of the Court delivered by Lord Pentland [2023] CSIH 46 XA10/23

Judgment Appealed

Decision 004/2023: Written evidence to James Hamilton’s investigation into the First Minister under the Ministerial Code

Watch previous livestream hearing

Date of hearing: Wednesday, 6 December 2023

Judgment Summaries

Summaries of opinions (judgments) provide a short explanation of judicial decisions in order to assist understanding and may be published in cases where there is wider public interest. They provide the main findings, but do not form part of the reasons for the decision.

The judgment published on the Scottish Courts and Tribunals website is the only authoritative document.

The Scottish Ministers against the Scottish Information Commissioner

Dec 19, 2023

At the conclusion of the hearing on 6 December 2023 the Scottish Ministers’ appeal against the Scottish Information Commissioner’s decision that the Ministers did “hold” information gathered from an independent investigation, was refused. The Opinion of the court, delivered by Lord Pentland, setting out the detailed reasons for that decision, has now been published.

Background

Scottish Ministers received a request under the Freedom of Information (Scotland ) Act 2002 (FOISA) from Mr Benjamin Harrop for all written evidence ingathered by Mr Hamilton’s investigation into whether the then First Minister Nicola Sturgeon had breached the Ministerial Code.

The Ministers declined to provide the information on the basis that Mr Hamilton was independent of them. Any information held by Mr Hamilton was not “held” by or on behalf of the Ministers within the meaning of section 3(2) of the Act. Therefore, the information held by Mr Hamilton did not fall within the scope of the Act and did not require to be disclosed by the Ministers. The Minsters also relied on the exemption in section 30(c) of the Act that disclosure of the information would cause substantial prejudice to the effective conduct of public affairs. They upheld that decision upon review.

Mr Harrop appealed to the Scottish Information Commissioner under section 47(1) of the Act. On 31 January 2023, the Commissioner determined that the Ministers were wrong to find that they did not “hold” the information ingathered and held by Mr Hamilton and his team. There was an appropriate connection between the information and the interests of the Ministers. The fact that access to the information had been restricted to Mr Hamilton and his team was a procedure which was put in place by the Ministers; they could revoke it if they wished. the Commissioner ordered the Ministers to carry out a further review and respond to Mr Harrop anew by 17 March 2023.

The Ministers appealed the Commissioner’s decision to the Inner House of the Court of Session.

Appeal

The appeal against the decision of the Scottish Information Commissioner raised a sharp and important question of statutory interpretation: what does it mean for a public authority to “hold” information for the purposes of the Freedom of Information (Scotland) Act 2002 (FOISA) A public authority is only obliged to disclose information which it holds. The Scottish Ministers contended that they did not hold information which is stored in a restricted access area of the Scottish Government’s document management systems used by Mr James Hamilton, one of the Independent Advisers on the Scottish Ministerial Code. The Commissioner held that they did.

Decision

It is the court’s view that under the Freedom of Information legislation there should be no scope for the introduction of technicalities and unnecessary legal concepts calculated to over-complicate matters.

Such an approach would be liable to restrict the disclosure of information in ways that run counter to the clear legislative policy. Given the clear underlying policy of the legislation it follows that a crucial aim of FOISA was to avoid technical and legalistic disputes about whether a public authority holds information. There is no difference on this issue between the Freedom of Information Act 2000 (applicable in England and Wales) and FOISA.

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.

It is clear from his decision that the Commissioner fully understood the law on what was intended by the concept of holding information and that he correctly applied the law to the facts and circumstances of the case.

He recognised, in particular, that the issue did not revolve around an interpretation of the arrangements made for Mr Hamilton’s independence from the Scottish Government, but turned instead on the narrower question of whether the information was held by the Scottish Ministers.

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

The Commissioner properly had regard to the fact that the First Minister instructed the referral and that its purpose was to provide the Deputy First Minister with advice on which to base his decision as to whether any action was required under the Scottish Ministerial Code.

The steps taken to establish Mr Hamilton’s independence from the Scottish Government while he was carrying out his investigation were perfectly proper, but they are of no real significance when it comes to addressing the different issue of whether the Ministers held the information at the time of the request.

The Ministers’ submissions seek to attach disproportionate weight to Mr Hamilton’s independence; they fail to acknowledge the wider context in which the investigation took place. The context was the operation of a system designed to ensure compliance with the Scottish Ministerial Code. Mr Hamilton’s role was essentially that of an adviser to the Scottish Ministers.

It is also significant in considering whether an appropriate connection exists to recall that the information was held on the Scottish Government’s IT systems. In this connection it is notable that in their written submissions the Ministers accept that they (or their officials) could gain access to the information. They acknowledge that some of the email accounts of secretariat members had permission settings which allowed team members access and they accept that those inboxes were accessed on one occasion.

The Ministers’ argument comes to this. They are entitled to rely on access restrictions which they unilaterally created and which they could unilaterally retract. Such an approach would in effect permit them to construct a technical barrier between them and the information with a view to putting the information beyond the reach of the freedom of information regime. This would defeat the objective of open and transparent government. In short, an agreement reached with the secretariat that investigation materials should be held by Mr Hamilton rather than by the Ministers cannot affect the answer as to whether, on a proper construction of section 3(2), the Ministers hold that information.

The Commissioner was correct to attach importance to the fact that the investigation report was to be submitted to the Deputy First Minister and that the decisions on which parts of the report to redact were taken by the Scottish Government, on whose website the redacted report was published. At the conclusion of the investigation, a final report setting out Mr Hamilton’s findings was made available to the Deputy First Minister.

In para 26 of his decision the Commissioner drew together the essence of his findings as follows:

“The referral with its associated investigation was instructed and carried out, evidence was obtained, and the report produced, for the purpose of considering whether the First Minister’s conduct complied with the Code and advising on appropriate sanctions if it did not. Information was obtained and created for that purpose. In the Commissioner’s view, this amounts to an appropriate connection with the Authority such that information is held by it for the purposes of section 3(2) of FOISA.”

The Court can identify no flaw in this reasoning.

In the circumstances of the present case the Court is satisfied that there are numerous factors evidencing an appropriate connection between the requested information and the Scottish Ministers.

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.

It is important to stress that the effect of adopting a non-technical approach to the concept of holding information will not create undue problems for public authorities. In this connection the scheme of FOISA needs to be viewed as a whole.

As summed up by Judge Wikeley in University of Newcastle upon Tyne at para 41:

“… a key feature of the FOIA regime is the need to balance the interests of the requester and the public interest in the free flow of information with the legitimate interests of public authorities and third parties. Moreover, that balance is struck not by over-complicating the simple factual concept of whether information is “held” by a public authority – rather, it is achieved by the matrix of absolute and qualified exemptions and the application, where appropriate, of the public interest test.”

For these reasons the court refused the appeal.

Case description

This is an appeal by the Scottish Ministers under section 56 of the Freedom of Information (Scotland) Act 2002 against a decision of the Scottish Information Commissioner.

On 7 March 2018, former First Minister Mr Alex Salmond was notified that an investigation had been commenced against him by the Scottish Government, as a result of complaints received by two civil servants regarding his behaviour during his time as First Minister. Mr Salmond’s successor, the (now former) First Minister Ms Nicola Sturgeon met Mr Salmond’s former Chief of Staff, Mr Geoff Aberdein, on 29 March 2018. Thereafter, she met Mr Salmond three times, and spoke with him by phone three times, between 2 April and 18 July 2018.

On 13 January 2019, Ms Sturgeon referred herself to the independent advisers on the Scottish Ministerial Code for an alleged breach of the Code. The breach was said to concern whether Ms Sturgeon failed to record the meetings and phone calls in accordance with the Code, and/or whether she attempted to influence the conduct of the internal investigation into Mr Salmond’s behaviour.  An independent adviser, Mr James Hamilton, investigated. On 22 March 2021, he issued his report in which he determined that Ms Sturgeon had not breached the Code.

Two weeks later, the Ministers received a request under the 2002 Act from Mr Benjamin Harrop for all written evidence ingathered by Mr Hamilton’s investigation.  The Ministers declined to provide the information on the basis that Mr Hamilton was independent of them. Any information held by Mr Hamilton was not “held” by or on behalf of the Ministers within the meaning of section 3(2) of the Act. Therefore, the information held by Mr Hamilton did not fall within the scope of the Act and did not require to be disclosed by the Ministers. The Minsters also relied on the exemption in section 30(c) of the Act that disclosure of the information would cause substantial prejudice to the effective conduct of public affairs. They upheld that decision upon review.

Mr Harrop appealed to the Scottish Information Commissioner under section 47(1) of the Act. On 31 January 2023, the Commissioner determined that the Ministers were wrong to find that they did not “hold” the information ingathered and held by Mr Hamilton and his team. There was an appropriate connection between the information and the interest of the Ministers. The fact that access to the information had been restricted to Mr Hamilton and his team was a procedure which was put in place by the Ministers; they could revoke it if they wished. He ordered the Ministers to carry out a further review and respond to Mr Harrop anew by 17 March 2023.

The Ministers appeal the Commissioner’s decision. They argue that he has taken too technical an approach to the word “held”, and that it would be destructive of Mr Hamilton’s independence if they were entitled to access the evidence he has ingathered. The information has not been ingathered or held for the purposes of discharging any of the Ministers’ functions. Any connection between them and the information is therefore not an “appropriate” connection.

The First Division will hear the appeal on Wednesday 6 December 2023.

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