12 June 2025
Scottish Information Commissioner David Hamilton has today issued a decision in which he accepts the Scottish Government’s position that a named special adviser was not involved in the redaction of James Hamilton’s report into former First Minister Nicola Sturgeon.
The case concerns a freedom of information request which asked for details of who directed the redactions to the published version of Mr Hamilton’s report.
The case is unusual in that the Commissioner asked the Scottish Government to invite a special adviser to submit an affidavit setting out their role, if any, in the redaction process. This request was informed both by statements made in the House of Commons, in which Rt Hon David Davis MP indicated that he had received evidence suggesting that special advisers had been involved in the redaction, along with changes made in the submissions received from the Scottish Government.
The special adviser declined the invitation to provide an affidavit but instead provided a signed statement which was passed to the Commissioner. The Commissioner’s decision makes it clear that he draws no negative inference from the special adviser's decision not to provide an affidavit.
Taking account of the submissions made, and after exhausting all available investigative opportunities, the Commissioner concluded, on the balance of probabilities, that the special adviser was not involved in the redaction.
Commenting on the unusual circumstances of this case, Commissioner David Hamilton said:
“While I would have expected a special adviser to have been involved in discussions around these redactions – and to be clear, there is nothing legally wrong with that – the conflicting narratives expressed in the public domain on this matter were difficult to reconcile. As a result, it was clear that particularly close scrutiny was required.
“Requesting a voluntary affidavit from a special adviser was an unusual step, but it was also an opportunity to both add legal weight to the Scottish Government's position and provide reassurance to the public – particularly following the Government's shift in position. While an affidavit was not provided, a signed statement was supplied.
"Having exhaustively investigated this - and taking account of both the balance of probabilities and the absence of any evidence of an intention to conceal information - I accept the authority’s position that a special adviser was not involved in the redaction.
“It is vitally important, however, that people have confidence in the rigour of my investigations. Authorities should therefore note that I will carefully consider all submissions made and will challenge these where appropriate, to ensure that the public’s right to information under FOI is fully respected in all circumstances.”
Read the full text of Decision 144/2025 here.
ENDS
