26 March 2026
The Court of Session has today [26 March] issued a ruling which finds against the Commissioner’s decision that Scottish Government communications relating to its decision to appeal an FOI case to the court should be disclosed.
In this highly unusual case, a requester had asked the Scottish Government for communications relating to its decision to appeal the Commissioner’s Decision 004/2023. Decision 004/2023 found that the Scottish Government held information relating to the James Hamilton Report in its own right (and not solely on behalf of James Hamilton) so this information should be considered by Scottish Government when responding to relevant FOI requests. The Court of Session found in favour of the Commissioner in this case in December 2023.
The decision to which today’s Court of Session ruling relates - Decision 065/2025 - required that the Scottish Government disclose all communications relating to its decision to appeal the earlier case and conduct further searches for information that it may hold.
During the consideration of that case, the Scottish Government relied on a little-used provision of Scotland’s FOI Act (section 50(5)) which enabled it to refuse to supply legally privileged communications to the Commissioner.
The Commissioner was therefore placed in the extremely unusual position of being required to reach a decision on the disclosure of information without access to the specific information in question. In coming to his decision, the Commissioner recognised that information which is subject to legal professional privilege should only be disclosed under FOI in the circumstances where the public interest in disclosure outweighs the significant and substantial public interest in non-disclosure. In this case, however, the Commissioner found (as one relevant consideration) that the description of the information provided by the Scottish Government as “standard official level correspondence” lent weight to a conclusion that the public interest favoured disclosure.
Furthermore, the Commissioner had, in relation to an earlier case (Decision 193/2024), previously instructed that any actual legal advice in this case be disclosed. He subsequently received the Scottish Government’s assurances that this had been done.
As a consequence , the requester amended their application to specifically exclude legal advice. In light of this, it was understood that there would be no legal advice in the withheld information.
During the recent court case, however, it became apparent that this was not the case, and the Commissioner is separately assessing a range of non-compliance options.
The Court of Session’s recent ruling concludes that the balance of the public interest in this case favours the non-disclosure of the communications in question.
David Hamilton, Scottish Information Commissioner said:
“I will reflect on the Court’s decision and carefully consider my options, taking into account the cost to public finances.
“It is striking, however, that the Court’s decision in this case appears to lean at least partially on the presence of material that is only there because of what I understand to be non-compliance in another case - the consequences of which are still being considered.”
The costs to the Commissioner of Court of Session appeals are published here.
