Communications and information relating to the James Hamilton report and associated published legal advice (case reference number 281/2025): FOI Appeal
Information request and response under the Freedom of Information (Scotland) Act 2002
Information requested
Original request - 202400438168
Within the legal advice published by the Scottish Government on the 26th of October 2024, in response to FOI 202400394394, on page 69 the following passage exists:
"Thus REDACTED, request that Mr Hamilton be permitted to engage independent legal advice and charge the costs to the Scottish Government was set out in an official minute to the DFM and Lord Advocate dated October 2020, and not in confidential correspondence addressed from and on behalf of the independent adviser. The content of that minute provides a civil servant’s summary of the issues, rather than a request argued from the point of view of the independent adviser. At §15, in relation to the waiving of legal privilege, the minute appears to give ministers the writer’s personal insights into Mr Hamilton’s likely response to possible positions that Ministers might adopt. This again suggests a less than arm’s length and independent position. I can see that from one point of view REDACTED might appear to be the ideal person to brief Ministers on such matters. However, I do not know to what extent Mr Hamilton was aware of this briefing role that REDACTED was performing."
1) I request the official minute to the then DFM and then Lord Advocate described within the above passage
Thereafter on page 70 the following is stated:
"I fully accept that it is not unusual for civil servants to perform a variety of functions which do not necessarily come into conflict. However, I sense that SGLD has some concerns that the documents show a lack of proper separation between the ongoing work of Ministers and civil servants, and the need for a scrupulously independent Secretariat."
2) I request the "documents" that are referred to in this passage that the SGLD has some concerns about.
3) Any and all other briefings or communications (minutes, emails, whatsapps, anything) between the secretariat of James Hamilton's investigation into the former FM Nicola Sturgeon, 2020-21 and Scottish Ministers, civil servants, SPADs and all other members of the Scottish Government and/or third parties, in her capacity as the secretariat regarding James Hamilton's investigation.
4) Any and all other briefings or communications (minutes, emails, whatsapps, anything) between the secretariat of James Hamilton's investigation into the former FM Nicola Sturgeon, 2020-21 and Scottish Ministers, civil servants, SPADs and all other members of the Scottish Government and/or third parties, in her other role within the civil service which was not the secretariat of Mr Hamilton's investigation regarding James Hamilton's investigation.
5) Was Mr Hamilton aware that his secretariat was briefing Ministers in the way described in the two passages quoted from the legal advice above?
Response
Further to Decision Notice 281/2025, I have now completed a revised review of our response to part 3 of your request under the Freedom of Information (Scotland) Act 2002 (FOISA) for -
“Within the legal advice published by the Scottish Government on the 26th of October 2024, in response to FOI 202400394394, on page 69 the following passage exists:
"Thus REDACTED, request that Mr Hamilton be permitted to engage independent legal advice and charge the costs to the Scottish Government was set out in an official minute to the DFM and Lord Advocate dated October 2020, and not in confidential correspondence addressed from and on behalf of the independent adviser. The content of that minute provides a civil servant’s summary of the issues, rather than a request argued from the point of view of the independent adviser. At §15, in relation to the waiving of legal privilege, the minute appears to give ministers the writer’s personal insights into Mr Hamilton’s likely response to possible positions that Ministers might adopt. This again suggests a less than arm’s length and independent position. I can see that from one point of view REDACTED might appear to be the ideal person to brief Ministers on such matters. However, I do not know to what extent Mr Hamilton was aware of this briefing role that REDACTED was performing."
1) I request the official minute to the then DFM and then Lord Advocate described within the above passage
Thereafter on page 70 the following is stated:
"I fully accept that it is not unusual for civil servants to perform a variety of functions which do not necessarily come into conflict. However, I sense that SGLD has some concerns that the documents show a lack of proper separation between the ongoing work of Ministers and civil servants, and the need for a scrupulously independent Secretariat."
2) I request the "documents" that are referred to in this passage that the SGLD has some concerns about.
3) Any and all other briefings or communications (minutes, emails, whatsapps, anything) between the secretariat of James Hamilton's investigation into the former FM Nicola Sturgeon, 2020-21 and Scottish Ministers, civil servants, SPADs and all other members of the Scottish Government and/or third parties, in her capacity as the secretariat regarding James Hamilton's investigation.
4) Any and all other briefings or communications (minutes, emails, whatsapps, anything) between the secretariat of James Hamilton's investigation into the former FM Nicola Sturgeon, 2020-21 and Scottish Ministers, civil servants, SPADs and all other members of the Scottish Government and/or third parties, in her other role within the civil service which was not the secretariat of Mr Hamilton's investigation regarding James Hamilton's investigation.
5) Was Mr Hamilton aware that his secretariat was briefing Ministers in the way described in the two passages quoted from the legal advice above?”
The Scottish Government replied to your original request on 16 December 2024, and to your request for a review on 23 January 2025.
Revised review response
Part 3
In relation to part 3 of your request the Scottish Information Commissioner in Decision 281/2025 did not accept that we were entitled to rely on section 12(1) (excessive cost of compliance) of FOISA.
I have therefore substituted the review response issued on 23 January 2025 with a new response in respect to part 3 of your request.
I am providing a copy of most of the information you requested. Exemptions under section 26(c) (contempt of court), section 36(1) (confidentiality in legal proceedings) and section 38(1)(b) (personal data of a third party) of FOISA apply to some of the information you have requested. The reasons why these exemptions apply are set out in the annex to this letter.
Links to decision 279/2025
I should draw your attention to material which is in scope of decision 279/2025, which sought the evidence submitted to the Hamilton review. As you are aware, decision 279 is the subject of an appeal to the Court of Session about the information withheld under the exemption at section 26(c). Those documents are also within scope of part 3 of this request. They are, therefore, being released to you as part of this revised review response, with the exception of material in those documents which is being withheld under section 26(c).
Annex
REQUEST UNDER THE FREEDOM OF INFORMATION (SCOTLAND) ACT 2002
Section 26(c) (contempt of court)
An exemption under section 26(c) of FOISA (contempt of court) applies to some of the information because disclosure might identify complainers who are subject to an order under the Contempt of Court Act 1981. The order was made by the court in the context of the criminal trial of Mr Salmond. This exemption is not subject to the 'public interest test', so we are not required to consider if the public interest in disclosing the information outweighs the public interest in applying the exemption.
Section 36(1) – confidentiality of communications
An exemption under section 36(1) of FOISA (confidentiality in legal proceedings) applies to some of the information requested because it is legal advice and disclosure would breach legal professional privilege. This exemption is subject to the ‘public interest test’. This exemption applies to the information requested on the basis of legal advice privilege. Legal advice privilege protects the confidentiality of communications between a client and their legal adviser.
Therefore, taking account of all the circumstances of this case, we have considered whether the public interest in disclosing the information outweighs the public interest in applying the exemption. We have found that, on balance, the public interest lies in favour of upholding the exemption. We recognise that there is some public interest in release as part of open and transparent government, and to inform public debate. However, this is outweighed by the strong public interest in maintaining the right to confidentiality of communications between legal advisers and clients, to ensure that Ministers and officials are able to receive legal advice in confidence, like any other public or private organisation.
There is a very strong public interest in maintaining confidentiality of communications between legal adviser and client on administration of justice grounds. It is clearly in the public interest for lawyers to be able to provide free and frank legal advice to their clients, considering and discussing all issues and options, without fear that the advice might be disclosed and potentially taken out of context. It is also in the public interest that decisions are taken by the Government in a fully informed legal context. Ministers and officials therefore need high-quality, comprehensive legal advice for the effective conduct of their business. That advice needs to be given in context, and with a full appreciation of relevant facts. Without such legal advice, which can only be provided frankly and comprehensively in the knowledge that it will be kept in confidence, the quality of the Government’s decision-making would be much reduced since it would not be fully informed.
Section 38(1)(b) – personal data of a third party
An exemption under section 38(1)(b) of FOISA (personal information) applies to some of the information requested because it is personal data of a third party, i.e. names/contact details of individuals, and disclosing it would contravene the data protection principles in Article 5(1) of the General Data Protection Regulation and in section 34(1) of the Data Protection Act 2018. This exemption is not subject to the ‘public interest test’, so we are not required to consider if the public interest in disclosing the information outweighs the public interest in applying the exemption.
About FOI
The Scottish Government is committed to publishing all information released in response to Freedom of Information requests. View all FOI responses at https://www.gov.scot/foi-responses.
FOI Decision 281 has been reissued following a small number of corrections in order to address certain minor errors in redactions, such as personal data.
Contact
Please quote the FOI reference
Central Correspondence Unit
Email: contactus@gov.scot
Phone: 0300 244 4000
The Scottish Government
St Andrew's House
Regent Road
Edinburgh
EH1 3DG