Affidavit in relation to the Hamilton Report: FOI release

Information requested

From the legal advice released in October 2024 following SIC decision notice 193/2024 on page 87:

“An affidavit from [redacted – section 38(1)(b)] as former head of the Secretariat about the arrangements was provided to OSIC as additional evidence.”

1) I request the above affidavit, as well any other affidavits provided by the former head of the Secretariat in relation to the Hamilton Investigation.

Response

We have interpreted your request as being compiled of two separate component parts;

Firstly “I request the above affidavit” and secondly “any other affidavits provided by the head of the Secretariat in relation to the Hamilton investigation” as such your correspondence has been processed and responded to on that basis.

I have interpreted your request as being in relation to the publication of: Legal advice given to the Scottish Government/ministers in reference to The Scottish Ministers v The Scottish Information Commissioner (case reference number XA10/23): FOI Appeal - gov.scot whereupon on page 87 an “affidavit” is referenced.

On further investigation to provide a response to this request I have established that the information you seek is not contained within an “affidavit” but is contained within a signed statement of agreement.

I have also established that this information has been requested previously as part of a wider request for information that you submitted on 17th December 2023, case 202300388336.

We responded within the statutory time frame on January 9th 2024, releasing some of the information you sought whilst also withholding some information under section 36(1) of FoI(S)A. To confirm, the information you have sought within this new request was part of the information that was previously withheld under case 202300388336. Subsequently you sought a review, case 202400394397 whereupon the decision of the Scottish Ministers was to uphold the application of the exemption and we replied accordingly on 8th February 2024.

You have applied to Appeal this decision to the Scottish Information Commissioner and the information requested above was considered in Decision 065/2025 which is currently being appealed to the Court of Session.

As a result, whilst our aim is to provide information whenever possible, under section 14(2) of FOISA a public authority is not required to comply with a request for information if it is identical or substantially similar to a request which it has already complied with, unless a reasonable amount of time has elapsed between the two requests. The information requested for the first part of your request is identical to some of that covered by your previous request which as we have outlined above was responded to on 9th January 2024 and is now the subject of court proceedings.

The Scottish Information Commissioner's guidance on repeated requests at: http://www.itspublicknowledge.info/Law/FOISA-EIRsGuidance/Section14/Section14Overview.aspx says that in considering whether a reasonable period of time has elapsed between the previous request and the new request, there are two questions which will help the authority:

(i) has the information changed?
(ii) have the circumstances changed?

In this case, the information we hold for the first part of your request is the same as at the time of your previous request. We have also considered the circumstances and have concluded that whilst these have changed because the information requested above is now being considered as part of Appeal and Decision 065/2025, which relates to wider information requested, to release it either in full or in part in isolation may compromise the outcome of the live Appeal.

For these reasons, we consider that your request is repeated and we are not obliged to comply with it.

To answer the second part of your request, searches for “affidavits” have been completed and I can confirm that there are no other such affidavits and therefore please accept this as formal notice that the Scottish Government does not hold the information to for the second part of your request. This part of your request is therefore refused under section 17(1) of FoI(S)A – information not held as a public authority cannot provide information which it does not hold.

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.