Information Commissioner approach to public interest ‘insufficient’, court told
Scottish ministers are appealing against a decision by the Information Commissioner.
The Information Commissioner’s approach to the public interest has been “insufficient” regarding information relating to an investigation into whether Nicola Sturgeon broke the ministerial code, the appeal court has heard.
Scottish ministers are appealing against a request issued by the Information Commissioner in March 2025 for all communications relating to a previous appeal to the Court of Session by ministers in December 2023.
Christine O’Neill KC, representing the ministers at Thursday’s hearing, told the appeal court at the Court of Session that the commissioner’s decision is “not sufficient to justify displacing the very strong public interest” in the protection of legal professional privilege.
In December 2023, Scottish ministers lost their appeal against the commissioner’s request for all written evidence relating to James Hamilton KC’s investigation into former first minister Nicola Sturgeon under the ministerial code.
Mr Hamilton was appointed to investigate Ms Sturgeon’s conduct in relation to the investigation of allegations of abuse by two civil servants against former first minister Alex Salmond.
Ms Sturgeon was found to have breached the ministerial code unknowingly and remained in the top job.
In January 2024 the Scottish Government provided a small amount of redacted correspondence but withheld other information which it considered was covered by legal privilege.
Following an investigation, the Information Commissioner found ministers had not been entitled to withhold the information requested and in March 2025 asked them to disclose the “wrongly withheld” information and carry out further searches for relevant information.
The Scottish Government is appealing against this decision on grounds including that the commissioner misdirected himself as to the proper approach to be taken to the public interest test in maintaining legal professional privilege (LPP).
Christine O’Neill KC, representing Scottish ministers, said both ministers and the Information Commissioner accept that the information in dispute is information subject to legal advice privilege and/or litigation privilege.
She told the court in Edinburgh: “The Scottish Information Commissioner’s position is that not withstanding its privileged status the public interest requires its disclosure.
“The ministers argue, for various reasons set out in the note of appeal, that the commissioner’s decision is not sufficient to justify displacing the very strong public interest in the protection of privilege.”
She pointed to a section of the Information Commissioner’s March 2025 decision which states that the commissioner “acknowledges that disclosure would be unlikely to enlighten the public to the same extent as disclosure of the legal advice” disclosed in response to a previous decision.
However, the March 2025 decision continues: “In any event, the commissioner considers that disclosure of the withheld information in this case would nevertheless cast further light on subject matter (and its handling by the authority) that is, as set out earlier, of clear and sustained interest to the public.”
Ms O’Neill said: “In my submission, this passage goes against disclosure of the legal and professional privilege (LPP) material on the basis that it’s accepted that it’s unlikely to enlighten the public to the same extent as the legal advice that has already been disclosed.”
She later said: “I say that the general approach to the public interest has simply been insufficient.”
Ms O’Neill also said the Scottish Government should not be taken to have been “unco-operative” in declining to provide the material to the commissioner.
David Johnston KC, representing the Information Commissioner, said it is common ground that legal professional privilege is a matter of “the most fundamental importance” and that the commissioner recognises that.
However, he said: “Important though legal professional privilege is, it is not an absolute bar against release of information when that section 36(1) exemption is pled. The matter is for the commissioner to balance the factors for and against disclosure.
“The commissioner must balance the admittedly very strong public interest in maintaining LPP against public interest factors that speak in favour of disclosing the information.”
The case, being heard by the Lord President, Lord Malcolm and Lord Clark, was adjourned for the remainder of the day.
