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Decision 281/2025

Decision 281/2025:  Communications and information relating to the James Hamilton report and associated published legal advice 

Authority: Scottish Ministers
Case Ref: 202500187
 

Summary

The Applicant asked the Authority for communications and information relating to the James Hamilton Report and associated published legal advice.  The Authority disclosed some information and withheld other information under various exemptions in FOISA.  It also said that it did not hold information for part of the request and that complying with another part of the request would exceed the upper cost limit.  The Commissioner investigated and found that the Authority failed to comply with FOISA in certain respects in responding to the information request.  He required the Authority to disclose information that it had wrongly withheld and to comply with the part of the request that he found it was not entitled to refuse to comply with on the grounds of excessive cost.

Relevant statutory provisions

Freedom of Information (Scotland) Act 2002 (FOISA) sections 1(1), (2) and (6) (General entitlement); 2(1)(b) and 2(e)(ii) (Effect of exemptions); 12(1) (Excessive cost of compliance); 17(1) (Information not held); 30(c) (Prejudice to the effective conduct of public affairs); 36(1) (Confidentiality) and 38(1)(b), (2A), (5) (definitions of “data protection principles”, “data subject”, “personal data”, “processing” and “UK GDPR”) and (5A) (Personal information); 47(1) and (2) (Application for decision by Commissioner) 

United Kingdom General Data Protection Regulation (the UK GDPR) articles 4(1) (definition of “personal data”) (Definitions); 5(1)(a) (Principles relating to the processing of personal data); 6(1)(f) (Lawfulness of processing) 

Data Protection Act 2018 (the DPA 2018) sections 3(2), (3), (4)(d), (5), (10) and (14)(a), (c) and (d) (Terms relating to the processing of personal data)

The Freedom of Information (Fees for Required Disclosure) (Scotland) Regulations 2004 (the Fees Regulations) regulations 3 (Projected costs); 4 (Fee payable); 5 (Excessive cost – prescribed amount)

Background

  1. On 27 October 2024, the Applicant made a request for information to the Authority in relation to legal advice it had published on 26 October 2024.  Referring to specific extracts from the published legal advice, he (among other things) asked the Authority for:

    (1) The official minute to the then Deputy First Minister and the Lord Advocate referred to in a specific extract.

    (2) The “documents” referred to in a specific passage that the Scottish Government Legal Directorate (SGLD) had “some concerns” about.

    (3) “Any and all other briefings or communications… between the secretariat of James Hamilton's investigation into the former [First Minister], 2020-21 and Scottish Ministers, civil servants, SPADs and all other members of the Scottish Government and/or third parties, in [their] capacity as the Secretariat regarding James Hamilton's investigation.”

    (4) “Any and all other briefings or communications… between the Secretariat of James Hamilton's investigation into the former [First Minister], 2020-21 and Scottish Ministers, civil servants, SPADs and all other members of the Scottish Government and/or third parties, in [their] other role within the civil service which was not the Secretariat of Mr Hamilton's investigation regarding James Hamilton's investigation.”

  2. The full text of the request is reproduced in Appendix 1 to this decision.  
  3. The Authority responded on 16 December 2024 in the following terms:

  • in response to part 1 of the request, it disclosed some information and withheld other information under the exemptions in sections 30(c), 36(1) and 38(1)(b) of FOISA.

  • in response to part 2 of the request, it disclosed some information and withheld other information under the exemption in section 38(1)(b) of FOISA.

  • in response to parts 3 and 4 of the request, it applied section 12(1) of FOISA on the basis that complying with the request would exceed the upper cost limit of £600.

  1. On 17 December 2024, the Applicant wrote to the Authority requesting a review of its decision. He stated that he was dissatisfied with the decision for the following reasons:

  • in relation to parts 1 and 2 of his request, he did not believe that the cited exemptions applied and submitted that the public interest favoured disclosure.

  • in relation to parts 3 and 4 of his request, he did not believe that it would exceed the upper cost limit of £600 to comply.

  1. The Authority notified the Applicant of the outcome of its review on 23 January 2025 in the following terms:

  • in response to parts 1, 2 and 3 of the request, it upheld its original decision without modification

  • in response to part 4 of the request, it revised its position and issued the Applicant with a notice, in terms of section 17(1) of FOISA, that it did not hold the information requested.  It explained that this was because any briefing or correspondence in relation to Mr Hamilton’s investigation was only carried out by the Secretariat acting in their capacity as Secretariat.

  1. On 3 February 2025, the Applicant wrote to the Commissioner, applying for a decision in terms of section 47(1) of FOISA.  He stated that he was dissatisfied with the outcome of the Authority’s review for the reasons set out in his request for review and because, for part 4 of his request, he did not believe that the Authority did not hold the information requested.

Investigation

  1. The Commissioner determined that the application complied with section 47(2) of FOISA and that he had the power to carry out an investigation.
  2. On 5 March 2025, the Authority was notified in writing that the Applicant had made a valid application.  The Authority was asked to send the Commissioner the information withheld from the Applicant.  The Authority provided the information, and the case was allocated to an investigating officer.
  3. Section 49(3)(a) of FOISA requires the Commissioner to give public authorities an opportunity to provide comments on an application.  The Authority was invited to comment on this application and to answer specific questions relating to each part of the Applicant’s request and the provisions in FOISA that the Authority had applied. 

Commissioner’s analysis and findings

  1. The Commissioner has considered all of the submissions made to him by the Applicant and the Authority. 

Section 30(c) - Prejudice to effective conduct of public affairs

  1. The Authority applied the exemption in section 30(c) of FOISA to a small amount of information falling within the scope of part 1 of the Applicant’s request.
  2. Section 30(c) of FOISA exempts information if its disclosure “would otherwise prejudice substantially, or be likely to prejudice substantially, the effective conduct of public affairs”. This exemption is subject to the public interest test in section 2(1)(b) of FOISA.
  3. The use of the word “otherwise” distinguishes the harm required from that envisaged by the exemptions in sections 30(a) and (b) of FOISA.  This is a broad exemption, and the Commissioner expects any public authority citing it to show what specific harm would (or would be likely to) be caused to the conduct of public affairs by disclosure of the information, and how that harm would be expected to follow from disclosure.
  4. The standard to be met in applying the tests contained in section 30(c) is high: the prejudice in question must be substantial and therefore of real and demonstrable significance.  The Commissioner expects authorities to demonstrate a real risk or likelihood of substantial prejudice at some time in the near (certainly foreseeable) future, not simply that such prejudice is a remote or hypothetical possibility.  Each request should be considered on a case-by-case basis, taking into consideration the content of the information and all other relevant circumstances (which may include the timing of the request).

The Applicant’s submissions on section 30(c)

  1. The Applicant disagreed with the application of the exemption in section 30(c) of FOISA.  However, his specific submissions are most pertinent to whether the public interest favoured disclosure of the information withheld under this exemption

The Authority’s submissions on section 30(c)

  1. The Authority said that disclosure of details of whose advice was sought on the submission on legal advice for Mr Hamilton would significantly harm the conduct of public affairs by breaching the Law Officer Convention as it would reveal whether advice on this topic had, or had not, been sought from the Law Officers.
  2. The Authority submitted that revealing whether the Law Officers had been asked to give advice would encourage people to draw conclusions regarding the importance placed by the Authority on the different issues related to its policy on the public reporting of outcomes of complaints involving Ministers and whether there were uncertainties regarding the Authority’s position.  It argued that this would significantly harm the effective conduct of public affairs by placing undue pressure on Ministers and officials in future to consider these factors before deciding to consult SGLD or other solicitors, Counsel and/or the Law Officers.
  3. The Authority considered that all these factors would be likely to significantly harm the effective conduct of the Authority’s business by discouraging officials and/or Ministers from requesting legal advice when required for fear of information about the source of the advice being divulged and subjected to public and media speculation.

The Commissioner’s view on section 30(c)

  1. The Commissioner has considered the withheld information, together with the submissions made by both parties.  He has also considered the specific terms of the request, including the extract from the published legal advice that the Applicant referred to.
  2. In this case, the Authority disclosed some information in response to part 1 of the Applicant’s request.  That is, it purported to provide the Applicant (subject to redactions) with the official minute sent to the then Deputy First Minister and the then Lord Advocate.
  3. The Commissioner therefore does not accept that the Authority was entitled to apply the exemption in section 30(c) of FOISA to withhold the source of its legal advice.  In all of the circumstances, he also does not accept that the Authority was entitled to withhold the other information withheld under this exemption, given that it makes no real contribution to concealing the source of its legal advice.
  4. In the circumstances, the Commissioner cannot therefore accept that the Authority was entitled to apply the exemption in section 30(c) to withhold the source of its legal advice.
  5. Given that the Commissioner does not accept the application of the exemption for the information withheld under section 30(c) of FOISA, he is not required to consider the public interest test in section 2(1)(b) for that information.  As no other exemption has been claimed by the Authority to justify the withholding of that information, the Commissioner requires the Authority to disclose it to the Applicant, and he must find that it failed to comply with section 1(1) of FOISA by withholding it.

Section 36(1) – Confidentiality

  1. The Authority applied the exemption in section 36(1) of FOISA to withhold some information falling within the scope of part 1 of the Applicant’s request.
  2. Section 36(1) of FOISA provides that information in respect of which a claim to confidentiality of communications could be maintained in legal proceedings is exempt information.  One type of communication covered by this exemption is that to which legal advice privilege, a form of legal professional privilege, applies.
  3. Legal advice privilege covers communications between lawyers and their clients in the course of which legal advice is sought or given. For the exemption to apply to this particular type of communication, certain conditions must be fulfilled: 

    1. the information must relate to communications with a professional legal adviser, such as a solicitor or an advocate; 

    2. the legal adviser must be acting in their professional capacity; and 

    3. the communications must occur in the context of the legal adviser's professional relationship with their client.

  4. Furthermore, the information cannot be privileged unless it is also confidential.  For the section 36(1) exemption in FOISA to apply, the withheld information must be information in respect of which a claim to confidentiality of communications could be maintained in legal proceedings.                                                                                                                                                                                                                                                                       
  5. A claim of confidentiality cannot be maintained where, prior to a public authority's consideration of an information request or conducting a review, information has been made public, either in full or in a summary sufficiently detailed to have the effect of disclosing the advice.  Where the confidentiality has been lost in respect of part or all of the information under consideration, any privilege associated with that information is also effectively lost.

The Applicant’s submissions on section 36(1)

  1. The Applicant disagreed with the application of the exemption in section 36(1) of FOISA.  However, his specific submissions are most pertinent to whether the public interest favoured disclosure of the information withheld under this exemption. These submissions are considered later in this decision notice.

The Authority’s submissions on section 36(1)

  1. The Authority claimed that that legal advice privilege applied to the information withheld under the exemption in section 36(1) of FOISA.  It submitted that all of the information withheld under this exemption related to communications with, or references to communications with, legal advisers acting in their professional capacity and the Authority as their client, in which legal advice was being provided or sought.
  2. The Authority said that all of the material was either made for the principal or dominant purpose of giving or seeking legal advice.  It argued that disclosure of the withheld information would breach legal professional privilege, by divulging information about the points being considered by lawyers, the extent of their advice and the issues being flagged up for further consideration.  All of the necessary conditions for legal advice privilege to apply were therefore satisfied.
  3. The Authority also stated that a claim to confidentiality could be maintained in legal proceedings because the correspondence in question was only shared between the Authority and its legal advisers.  Aside from being provided to the Commissioner as part of his investigation (in relation to this case), the advice had not, at any time, been shared with anyone outwith the Authority and it therefore considered that legal professional privilege had not been waived.

The Commissioner’s view of section 36(1)

  1. The Commissioner has carefully considered the information withheld under the exemption in section 36(1) of FOISA. Some of the information clearly constitutes legal advice and meets the conditions for legal advice privilege to apply. However, there are aspects of the relevant withheld information that less obviously constitutes legal advice.  Having carefully considered this information, the Commissioner accepts, on balance, that it constitutes legal advice and meets the conditions for legal advice privilege to apply.
  2. The Commissioner is also satisfied that the confidentiality of the legal advice has not been lost or waived.
  3. The Commissioner therefore considers that the information in question was confidential at the time the Authority dealt with the Applicant’s information request and requirement for review (and that it remains so now).
  4. The exemption in section 36(1) is a qualified exemption, which means that it is subject to the public interest test set out in section 2(1)(b) of FOISA.  The exemption can only be upheld if the public interest in disclosing the information is outweighed by the public interest in maintaining the exemption.

The public interest test - section 36(1)

The Applicant’s submissions

  1. The Applicant submitted that the public interest favoured disclosure of the information withheld under the exemption in section 36(1) of FOISA.
  2. The Applicant said that the Authority had taken the Commissioner to the Court of Session and “embarrassingly lost in under a minute at the expense of the public purse”.  He also said that the Authority’s legal advice showed that its own legal advisers were “not confident that victory could be achieved”.
  3. The Applicant also suggested that the information withheld under the exemption in section 36(1) of FOISA appeared to be a “key point” in this case.  He considered that disclosure of this information was in the public interest to better inform the public in understanding the Authority’s decision-making regarding the Authority’s appeal to the Court of Session and why, in this case (which he said was of “extensive” public interest), the Authority ultimately decided to proceed with the appeal.

The Authority’s submissions

  1. The Authority accepted that there was a public interest in disclosing the withheld information to promote openness and transparency.  It also acknowledged that releasing the information could help greater public understanding of the Authority’s policy on the public reporting of outcomes of complaints involving Ministers.
  2. On the other hand, the Authority considered that it was important in all cases that lawyers could provide free and frank legal advice which considered and discussed all issues and options, without fear that that advice may be disclosed and, as a result, potentially taken out of context.
  3. The Authority argued that there was a public interest in ensuring that its position on any issue was not undermined by the disclosure of legal advice.  Legal advisers need to be able to present the full picture to their clients.  It is in the nature of legal advice that it often sets out the possible arguments both for and against a particular view, it argued, weighing up their relative merits.
  4. In areas such as this, which were the subject of political debate, the Authority considered that an expectation that legal advice could be released would inevitably lead to the legal advice being much more circumspect and therefore less effective.
  5. The Authority therefore submitted that there was a strong public interest in protecting the confidentiality of this information, in order to ensure that it was able to discuss and take decisions in full possession of thorough and candid legal advice.  This would ensure that decisions could be made in a fully informed legal context, having received legal advice in confidence as any other client would.
  6. On balance, the Authority considered that in this case, the public interest in maintaining the exemption outweighed that of disclosure, given the overriding public interest in maintaining the confidentiality of communications between lawyers and their clients and the public interest in allowing for full and detailed internal consideration of policies on the public reporting of outcomes of complaints involving Ministers.

The Commissioner’s view

  1. As the Commissioner has noted in several previous decisions, the courts have long recognised the strong public interest in maintaining the right to confidentiality of communications between legal adviser and client on administration of justice grounds.
  2. In a freedom of information context, the strong inherent public interest in maintaining legal professional privilege was emphasised by the High Court (of England and Wales) in the case of Department for Business, Enterprise and Regulatory Reform v Information Commissioner and O'Brien [2009] EWHC 164 (QB)[1].  Generally, the Commissioner will consider the High Court's reasoning to be relevant to the application of section 36(1) of FOISA.
  3. The Commissioner accepts that there is a considerable, in-built, public interest in maintaining the ability of the Authority to receive full, unhindered legal advice.  However, he also acknowledges that there will be occasions where the significant public interest in favour of withholding legally privileged communications may be outweighed by a public interest in disclosing the information.
  4. While the Commissioner recognises the public interest in understanding the legal advice received (particularly given the strong, wider public interest in James Hamilton’s investigation into the former First Minister under the Ministerial Code and matters relating to it), he must also take account of the important public interest in legal professional privilege itself and the public interest in allowing public authorities to obtain confidential legal advice.
  5. The Commissioner has also taken account of the information already in the public domain, including the information in the document sent to the then Deputy First Minister and another party that the Authority has already disclosed to the Applicant.
  6. As indicated above, the Commissioner acknowledges that there will be occasions where the significant public interest in favour of withholding legally privileged communications may be outweighed by a compelling public interest in disclosing the information (and he has on occasion required disclosure of such information, where the particular circumstances of the appeal supported it).  For example, disclosure may be appropriate where (the list is not exhaustive): 

  • the privileged material discloses wrongdoing by/within an authority 

  • the material discloses a misrepresentation to the public of advice received 

  • the material discloses an apparently irresponsible and wilful disregard of advice 

  • the passage of time is so great that disclosure cannot cause harm.

  1. While the Commissioner accepts, having examined the withheld information, that the contents of the advice would be of interest to the Applicant and the general public, he does not consider that the circumstances of this case reflect any of the scenarios described above (or any other reason for disclosure of equal force).
  2. As stated above, the Commissioner accepts that there is a strong public interest in a Scottish public authority being able to receive full, unhindered legal advice.  Without such comprehensive advice being available to the Authority, its ability to come to fully informed decisions would be restricted, which would not be in the public interest.
  3. In the circumstances, therefore, having considered the submissions made by both parties together with the content of the relevant withheld information, the Commissioner is not satisfied that the public interest in disclosure of the withheld information is significant enough in this case to outweigh the strong public interest in maintaining the confidentiality of communications between legal adviser and client.
  4. In conclusion, after careful consideration, the Commissioner is satisfied that the Authority correctly withheld the information under the exemption in section 36(1) of FOISA.

Section 38(1)(b) – Personal information

  1. The Authority applied the exemption in section 38(1)(b) of FOISA to withhold some information falling within the scope of parts 1 and 2 of the Applicant’s request.
  2. Section 38(1)(b) of FOISA, read in conjunction with section 38(2A)(a) (or (b), exempts information from disclosure if it is “personal data“(as defined in section 3(2) of the DPA 2018) and its disclosure would contravene one or more of the data protection principles set out in Article 5(1) of the UK GDPR.
  3. The exemption in section 38(1)(b) of FOISA, applied on the basis set out in the preceding paragraph, is an absolute exemption.  This means that it is not subject to the public interest test contained in section 2(1)(b) of FOISA.
  4. To rely on the exemption in section 38(1)(b), the Authority must show that the information is personal data for the purposes of the DPA 2018 and that disclosure of the information into the public domain (which is the effect of disclosure under FOISA) would contravene one or more of the data protection principles in Article 5(1) of the UK GDPR.

Is the information personal data?

  1. The first question the Commissioner must address is whether the information is personal data for the purposes of section 3(2) of the DPA 2018, i.e. any information relating to an identified or identifiable individual.  “Identified living individual” is defined in section 3(3) of the DPA 2018.  (This definition reflects the definition of personal data in Article 4(1) of the UK GDPR.)
  2. Information will "relate to" a person if it is about them, is linked to them, has biographical significance for them, is used to inform decisions affecting them, or has them as its main focus.
  3. The information being withheld under the exemption in section 38(1)(b) of FOISA comprises the names and contact details of individuals below Senior Civil Service grade (one of whom was the Secretariat to Mr Hamilton’s investigation).  The Commissioner therefore accepts that the withheld information “relates to” identifiable living individuals.  He therefore concludes that the withheld information is personal data for the purposes of section 3(2) of the DPA 2018.

Which of the data protection principles would be contravened by disclosure?

  1. The Authority considered that the first data protection principle (Article 5(1)(a) of the UK GDPR) was applicable in this case. Article 5(1)(a) of the UK GDPR requires personal data to be processed “lawfully, fairly and in a transparent manner in relation to the data subject.”
  2. "Processing" of personal data is defined in section 3(4) of the DPA 2018.  It includes (section 3(4)(d)) disclosure by transmission, dissemination or otherwise making available personal data.  The definition therefore covers disclosing information into the public domain in response to a FOISA request.
  3. The Commissioner must consider whether disclosure of the personal data would be lawful.  In considering lawfulness, he must consider whether any of the conditions in Article 6 of the UK GDPR would allow the data to be disclosed.
  4. The Authority considered condition (f) in Article 6(1) of the UK GDPR to be the only one which could potentially apply in the circumstances of this case.  The Commissioner would agree.

Condition (f): legitimate interests

  1. Condition (f) in Article 6(1) of the UK GDPR states that the processing will be lawful if it is necessary for the purposes of the legitimate interests pursued by the controller or a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require the protection of personal data.
  2. Although Article 6 of the UK GDPR states that this condition cannot apply to processing carried out by a public authority in the performance of their tasks, section 38(5A) of FOISA makes it clear that public authorities can rely on Article 6(1)(f) when responding to requests under FOISA.
  3. The tests which must be met before Article 6(1)(f) of the UK GDPR can be met are as follows: 

    1. Does the Applicant have a legitimate interest in obtaining the personal data? 

    2. If so, would the disclosure of the personal data be necessary to achieve that legitimate interest? 

    3. Even if processing would be necessary to achieve that legitimate interest, would that be overridden by the interests or fundamental rights and freedoms of the data subjects?

Does the Applicant have a legitimate interest in obtaining the personal data?

The Applicant’s submissions

  1. The Applicant argued that there was a legitimate interest in knowing the identity of the Secretariat for the following reasons:

  • the James Hamilton Report was the most high-profile investigation in recent Scottish political history

  • in a previous report into the Ministerial Code, Sir David Bell had named his Secretariat (or their equivalent) in his final report to the Scottish Government, meaning publication of Mr Hamilton’s Secretariat would be consistent with the approach in previous investigations

  • following the Ministerial Statement: Legal Advice Relating to Scottish Information Commissioner on 29 October 2024, several MSPs had asked questions regarding the role of the Secretariat, including relating to conflicts of interest arising from their role, whether they were fully independent and what role they presently occupied.

  1. The Applicant noted that the First Minister had said that the individual chosen to be Secretariat was not a Special Adviser, but “a non-political career civil servant of impeccable record and repute”. Without knowing the identity of the Secretariat, the Applicant said that was no way for the public to explore the First Minister’s statement and make their own determination.
  2. The Applicant submitted that the Secretariat’s role came under further scrutiny following the publication of legal advice following Decision 193/2024[2] of the Commissioner.  He referred to specific extracts from that advice relating to Counsel for the Authority commenting on the separation between the duties of the Secretariat when acting as Secretariat and when acting in their other role.
  3. The Applicant also argued that the role of Secretariat to an investigation under the Ministerial Code was, of itself, a senior position and not something that would be taken on by a “junior level official”. He understood that the Authority had a consistent policy that the exemption in section 38(1)(b) of FOISA should not apply to senior level officials but reiterated that he considered the role of Secretariat to be a senior level position.  He considered that this was supported by the fact that the previous Secretariat (or precursor to the Secretariat) was one of the most senior civil servants within the Authority at the time.

The Authority’s submissions

  1. The Authority said that it was not aware of any legitimate interest that the Applicant has in the withheld names of junior officials or that identifying these individuals would aid his understanding of the information.  Even if the Applicant did have a legitimate interest, it did not consider this interest would outweigh the individuals’ interests in protecting their privacy.
  2. The Authority noted that there had been a considerable effort to identity the Secretariat.  While it noted their involvement in duties as expected in their role as Secretariat, it said this was in their capacity to support Mr Hamilton’s investigation and that they were not of sufficient seniority to expect their name to be disclosed under FOISA.

The Commissioner’s view

  1. As the Applicant’s submissions on his legitimate interest are focused solely on the identity of the Secretariat, the Commissioner finds that the Applicant does not have a legitimate interest in disclosure in the withheld third party personal data of the other junior officials.
  2. Having carefully considered the submissions from the Applicant and the Authority, the Commissioner accepts that the Applicant has a legitimate interest in the name of the Secretariat.  He accepts that disclosure of the name of the Secretariat would contribute to the Applicant’s understanding (and that of the wider public) of the arrangements and personnel involved in supporting Mr Hamilton’s investigation.
  3. However, the Commissioner does not accept that the Applicant has a legitimate interest in the Secretariat’s contact details.
  4. The Commissioner therefore accepts that the Authority was entitled to withhold, under the exemption in section 38(1)(b) of FOISA, the third party personal data of the junior officials other than the Secretariat, and the contact details of the Secretariat.

Is disclosure of the personal data necessary?

  1. The Commissioner will now consider whether disclosure of the name of the Secretariat is necessary for the Applicant’s legitimate interest. In doing so, he must consider whether these interests might reasonably be met by any alternative means.
  2. “Necessary” means “reasonably” rather than “absolutely” or “strictly” necessary. When considering whether disclosure would be necessary, public authorities should consider whether the disclosure is proportionate as a means and fairly balanced as to the aims to be achieved, or whether the requester’s legitimate interests can be met by means which interfere less with the privacy of the data subject.
  3. In the circumstances, the Commissioner accepts that disclosure of the name of the Secretariat is necessary to achieve the Applicant’s legitimate interest (and that of the wider public).  He can identify no viable means of fully meeting the Applicant’s legitimate interest which would interfere less with the privacy of the data subject than disclosing the name of the Secretariat.  In all the circumstances, the Commissioner is satisfied that disclosure of this information is necessary for the purposes of the Applicant’s legitimate interest.
  4. The Commissioner will now consider whether the Applicant’s legitimate interest in obtaining the name of the Secretariat outweighs the rights and freedoms of the data subject.

The data subject’s interests or fundamental rights and freedoms

  1. The Commissioner must balance the legitimate interests in disclosure against the data subject’s interests or fundamental rights and freedoms.  In doing so, it is necessary for him to consider the impact of disclosure.  For example, if the data subjects would not reasonably expect that the information would be disclosed to the public under FOISA in response to the request, or if such disclosure would cause unjustified harm, their interests or rights are likely to override any legitimate interests in disclosure.  Only if the legitimate interests of the Applicant outweigh those of the data subjects can the information be disclosed without breaching the first data protection principle.

  2. The Commissioner's guidance on section 38 of FOISA[3] notes factors that should be taken into account in balancing the interests of parties.  He notes that much will depend on the reasonable expectations of the data subject.  These are some of the factors public authorities should consider:

    (i) Does the information relate to an individual's public life (their work as a public official or employee) or to their private life (their home, family, social life or finances)? 

    (ii) Would the disclosure cause harm or distress?

    (iii) Whether the individual has objected to the disclosure. 

  3. The Commissioner has carefully considered the Applicant’s submissions, as set out above in paragraphs 70 to 73.
  4. The Authority explained that it considered that disclosure of the Secretariat’s name would likely cause harm or distress to them given the public and media scrutiny of Mr Hamilton’s investigation. As stated above, it said that there had been a considerable effort to identity the Secretariat and that their role had been scrutinised to a degree beyond which a civil servant of their seniority would expect and that they were not of sufficient seniority to expect that their name would be disclosed.  It therefore concluded that the rights and fundamental freedoms of the Secretariat outweighed the legitimate interest of the Applicant.
  5. The Commissioner’s guidance on section 38(1)(b) of FOISA specifically acknowledges (at paragraph 85) that it may be necessary to disclosure information about a relatively junior member of staff, depending on the specific nature and responsibilities of their post.  He has carefully considered this.
  6. In all the circumstances, the Commissioner accepts that the Secretariat would have no reasonable expectation that their name would be disclosed to the world-at large (which is the effect of disclosure under FOISA).  He considers that disclosure of their name would, given the considerable scrutiny that would inevitably follow, would cause harm and distress to the Secretariat who, while performing a specific role in their capacity as Secretariat, is not otherwise of sufficient seniority to expect their name to be disclosed and does not have a public profile.
  7. The Commissioner would also note that when requiring the Authority as part of Decision 193/2024 to disclose the information he found it was not entitled to withhold under the exemption in section 36(1) of FOISA, he expressly permitted the Authority to redact certain information under the exemption in section 38(1)(b) of FOISA – including the name of the Secretariat.
  8. Having carefully balanced the legitimate interests of the Secretariat against those of the Applicant, the Commissioner finds that the legitimate interests served by disclosure of the name of the Secretariat are outweighed by the unwarranted prejudice that would result to their rights and freedoms or legitimate interests. Condition (f) in Article 6(1) of the GDPR cannot, therefore, be met in relation to the name of the Secretariat.
  9. In the absence of a condition in Article 6 of the GDPR allowing the name of the Secretariat to be disclosed, the Commissioner has concluded that disclosing the information would be unlawful.

Fairness

  1. Given that the Commissioner has concluded that the processing of the personal data would be unlawful, he is not required to go on to consider separately whether disclosure of such personal data would otherwise be fair and transparent in relation to the data subjects.

Conclusion on the data protection principles

  1. For the reasons set out above, the Commissioner is satisfied that disclosure of the personal data would breach the data protection principle in Article 5(1)(a) of the GDPR. Consequently, he is satisfied that the personal data are exempt from disclosure under section 38(1)(b) of FOISA.

Section 12(1) - Excessive cost of compliance

  1. The Authority applied section 12(1) of FOISA to part three of the Applicant’s request.
  2. Section 12(1) of FOISA provides that a Scottish public authority is not obliged to comply with a request for information where the estimated cost of doing so would exceed the relevant amount prescribed in the Fees Regulations. This amount is currently £600 (see regulation 5). Consequently, the Commissioner has no power to require the disclosure of information should he find that the cost of responding to a request for that information would exceed this sum.
  3. The projected costs a Scottish public authority can consider in relation to a request for information are, according to regulation 3 of the Fees Regulations, the total costs (whether direct or indirect) it reasonably estimates it will incur in locating, retrieving and providing the information requested, in accordance with Part 1 of FOISA.
  4. The authority may not charge for the cost of determining whether it:

    1. actually holds the information, or 

    2. whether or not it should provide the information.

  5. The maximum hourly rate the authority can charge for staff time is £15 per hour.

The Applicant’s submissions

  1. The Applicant disagreed that complying with part 3 of his request would exceed the upper cost limit.  He disputed that so many communications existed that fell within the scope of his request that the cost of complying with it would exceed £600.

The Authority’s submissions

  1. The Authority confirmed that it still wished to apply section 12(1) of FOISA to part 3 of the Applicant’s request.
  2. The Authority said that it carried out a revised cost calculation at review stage.  It provided the following cost calculation:

  • Total time for searches = 10 minutes (a)

  • Total time for sift = 295 minutes (b)

  • Total time for redactions = 2,356 minutes (c) 

  • Total resource time = (a) + (b) + (c) = 10 + 295 + 2,356 = 2,661 minutes = 44 hours and 21 minutes. 

  • Total cost = 44 hours and 21 minutes * £15.00 per hour = £664.

  1. The Authority said that it would require 10 minutes (a) to determine that all in scope information would be held in one folder.  It explained that all items in this folder would need to be sifted as the folder was created for the purposes of storing all the communications that the Secretariat had regarding the Mr Hamilton’s investigation.  It said that no other information was stored in this folder, so it considered it appropriate to sift all documents.
  2. The Authority said that its searches identified 589 documents which could potentially be within scope.  A sample of 30 documents took 15 minutes – an average of 0.5 minutes per document.  Of the 30 documents sifted, all were in scope.  The Authority therefore assumed that all of the 589 documents would fall within scope.  It calculated a total time for the sift at 295 minutes (b) on the basis of sifting 589 documents at 0.5 minutes per document.
  3. The Authority considered it likely that most of the 589 documents falling within scope would require redaction.  However, it said that some documents would either be disclosed in full or withheld in their entirety and therefore not be subject to redaction.  It estimated that around 10% of the 589 documents would not require redaction, meaning that around 530 documents would require redaction.
  4. Having completed the required redaction in 4 documents, the Authority estimated an average of 4 minutes per document for redaction.  It multiplied the 589 documents by 4 minutes to arrive at a total time of 2,356 minutes (c) for redactions.
  5. The Authority observed that this part of the Applicant’s request sought information covering the full range of communications between the Secretariat, Mr Hamilton, witnesses and members of the Authority over the full course of Mr Hamilton’s investigation (over a period of around six months).  It noted that the Applicant had already requested the evidence submitted to Mr Hamilton’s investigation and that he had appealed the Authority’s response to this request to the Commissioner (where it was still under consideration). 

The Commissioner’s view

  1. Given the terms of part 3 of the Applicant’s request and the Authority’s description of the information held in the single folder it said was created for the purposes of storing all communications that the Secretariat had regarding the Hamilton review, the Commissioner does not understand the purpose of the sift described by the Authority.  It would seem self-evident that all of 589 documents within the folder would potentially fall within scope of the request, without a sift being required (which concluded the same and added around £73 to the estimated cost) to establish that.
  2. While the Authority estimated that 530 of the 589 documents would require redaction, the calculation it provided referred to 4 minutes on average to redact each of the 589 documents.  The calculation therefore wrongly referred to 2,356 in total (for 589 documents) instead of 2,120 minutes (for 530 documents), which added around £58 to the estimated cost.
  3. Deducting the cost of the unnecessary sift (around £73) and the cost of redactions to documents that the Authority estimated would not require redaction (around £58) from the Authority’s total estimated cost (£664) brings it below £600.   Furthermore, the Commissioner is not persuaded that it would, in fact, take on average 4 minutes to redact each document.  If it even took 10 seconds less than that on average to redact the 530 documents that the Authority estimated would require redaction, the cost of complying with the request would fall below £600 (even if the cost of the sift was still included).
  4. In all cases, it falls to the public authority to persuade the Commissioner, with reference to adequate, relevant descriptions and evidence, that the cost of complying with the request would exceed the £600 cost limit.   He considers it particularly important that public authorities provide him with robust and accurate cost calculations where the estimated cost of compliance only marginally exceeds the cost limit (as is the case here).
  5. In this case, the Commissioner is not satisfied that the Authority has provided him with a robust cost calculation for the request in question.  In all the circumstances, on the basis of the submissions he has received in this case, he concludes, on balance, that the Authority has failed to justify its application of section 12(1) of FOISA.
  6. The Commissioner therefore requires the Authority to respond anew to the Applicant's requirement for review in relation to part 3 of his request in accordance with Part 1 of FOISA (other than in terms of section 12(1)). 

Section 17(1) of FOISA – Notice that information is not held

  1. The Authority issued the Applicant with a notice, in terms of section 17(1) of FOISA, in relation to part 4 of his request.
  2. Section 1(1) of FOISA provides that a person who requests information from a Scottish public authority which holds it is entitled to be given that information by the public authority, subject to qualifications which, by virtue of section 1(6) of FOISA, allow Scottish public authorities to withhold information or charge a fee for it.  The qualifications contained in section 1(6) are not applicable to the Authority’s handling of part 4.
  3. The information to be given is that held by the Authority at the time the request is received, as defined by section 1(4).  This is not necessarily to be equated with information that an applicant believes the public authority should hold.  If no such information is held by the public authority, section 17(1) of FOISA requires the authority to give the applicant notice in writing to that effect.
  4. The standard of proof to determine whether a Scottish public authority holds information is the civil standard of the balance of probabilities.  In determining where the balance of probabilities lies, the Commissioner considers the scope, quality, thoroughness and results of the searches carried out by the public authority.
  5. The Commissioner also considers, where appropriate, any reason offered by the public authority to explain why it does not hold the information.  While it may be relevant as part of this exercise to explore expectations about what information the authority should hold, ultimately the Commissioner's role is to determine what relevant recorded information is (or was, at the time the request was received) held by the public authority.

The Applicant’s submissions

  1. The Applicant disagreed with the Authority’s position that it did not hold any relevant information in relation to part 4 of his request on the basis that any briefing or correspondence on James Hamilton’s investigation was only carried out by the Secretariat when acting in the capacity of their role as Secretariat.
  2. The Applicant referred to a specific extract of the information published following Decision 193/2024 of the Commissioner.   He argued that this extract showed the Authority’s own Senior Counsel had clearly stated that a differentiation existed between the Secretariat’s role as the Secretariat and their other role within the Authority.
  3. The Applicant referred to another specific extract of the information published following Decision 193/2024 where the Secretariat had stated that they had handled “sponsorship requirements” associated with James Hamilton’s investigation.  He argued that this extract clearly showed that a boundary existed between the Secretariat acting as the Secretariat and them not acting in that capacity but still working on and discussing James Hamilton’s investigation.
  4. The Applicant therefore considered that the Authority’s position had been flatly contradicted by both the Authority’s own Senior Counsel and the Secretariat.  He also argued that the Authority’s position was further undermined by it stating in its initial response to him that it did hold information falling within the scope of part 4 of his request. 

The Authority’s submissions

  1. The Authority maintained that it held no information relevant to this part of the Applicant’s request.
  2. The Authority explained that the Secretariat was a part time role but any communication from the Secretariat regarding the Mr Hamilton’s investigation would have been in their capacity in that role and that any other duties they may have undertaken in relation to the investigation would still have been in their capacity as Secretariat.  It submitted that it could not consider that some of the information held related to work the Secretariat carried out in relation to Mr Hamilton’s investigation, but not in their capacity as Secretariat.
  3. The Authority said that it had revised its position at review stage as it had initially misinterpreted this part of the Applicant’s request.  It said that it had applied section 12(1) of FOISA on the basis that all information in relation to parts 3 and 4 of the Applicant’s request would be held in the same folder.  However, at review, it reconsidered part 4 of the Applicant’s request and interpreted it to have sought communications from the Secretariat in relation to Mr Hamilton’s investigation when they were not acting in the capacity of Secretariat.
  4. The Authority stated that it therefore determined (for the reasons set out above) that it held no information relevant to part 4 of the Applicant’s request.
  5. The Authority noted the specific extract from its Senior Counsel that the Applicant had referred to in his application to the Commissioner.  While the Senior Counsel noted a separation of the Secretariat’s duties “ex post facto”, it said that such a separation was not the case in practice and that the Secretariat conducted their work for the purposes of being the Secretariat to Mr Hamilton’s investigation.
  6. Given the limited resources that were made available, and the fact that the role of Secretariat was not (as stated above) a full-time role, the Authority said that it followed that the individual tasked to perform the Secretarial duties would provide a “liaison link” into the Authority.  It stated that there was “no artificial separation of the duties” at the time and that this had only become a consideration following the Court of Session appeal.
  7. In practice, the Authority confirmed that all of the communications in respect of Mr Hamilton’s investigation were filed in the single folder referred to earlier – irrespective of whether they related to the investigation itself or to what latterly has been referred to as the “sponsorship requirements”.

The Commissioner’s view

  1. The Commissioner has taken account of all of the relevant submissions provided by both the Applicant and the Authority.
  2. Whatever concerns the Applicant (or others) may have about the proper separation of the Secretariat’s duties, the Commissioner is satisfied that it was reasonable for the Authority to consider, for the purposes of responding to a FOI request, that any communication between the Secretariat and others regarding the James Hamilton investigation would have been in their capacity of their role as Secretariat.
  3. The Commissioner is therefore satisfied that the Authority was correct to give the Applicant notice, in terms of section 17(1) of FOISA, that it did not hold any information relevant to part 4 of his request.
  4. The Commissioner notes the Applicant’s concern that the Authority had initially applied section 12(1) of FOISA to part 4 of his request as this suggested that it did hold the information requested.  However, he is satisfied with the Authority’s explanation that it had initially misinterpreted the Applicant’s request and he would note that the purpose of the review stage in FOI law it to provide authorities with the opportunity to reconsider their initial handling of an initial information request in order to ensure that they are satisfied that the request has been dealt with fully in accordance with FOI law, prior to an application being made to the Commissioner (if necessary).
  5. The Commissioner would also note that whatever information the Applicant believes was communicated between the Secretariat and others regarding the James Hamilton investigation (but not in their capacity as the Secretariat) would necessarily, given the Authority has stated that any such communication would have been in their capacity of their role as Secretariat, fall within the scope of part 3 of his request.
  6. As stated above, the Commissioner has required the Authority to provide a revised review outcome (other than in terms of section 12(1) of FOISA) to part 3 of his request.  To the extent that information is disclosed in response to that part of his request following the Authority’s revised review outcome (e.g. where it has not been exempted from disclosure under relevant provisions in FOISA), the Applicant can make his own assessment of that information in respect of the separation of the Secretariat’s duties.
  7. In other words, the Applicant has not been disadvantaged by the Authority’s interpretation of part 4 of his request as the information he considered would fall within the scope of that part request would instead fall within the scope of part 3 of his request.

Decision 

The Commissioner finds the Authority partially complied with Part 1 of the Freedom of Information (Scotland) Act 2002 (FOISA) in responding to the information request made by the Applicant.

The Commissioner finds that the Authority complied with Part 1 of FOISA by:

  • relying on the exemption in section 36(1) of FOISA to withhold information from the Applicant in response to part 1 of his request, and

  • relying on the exemption in section 38(1)(b) of FOISA to withhold information from the Applicant in response to parts 1 and 2 of his request

  • issuing the Applicant with a notice, in terms of section 17(1) of FOISA, in response to part 4 of his request.

However, the Commissioner finds that the Authority failed to comply with Part 1 of FOISA by:

  • wrongly relying on the exemption in section 30(c) of FOISA to withhold information from the Applicant in response to part 1 of his request (and thereby failing to comply with section 1(1))

  • failing to satisfy him that it was entitled to rely on section 12(1) of FOISA to refuse to comply with part 3 of the Applicant’s request.

The Commissioner requires the Authority to disclose to the Applicant the information it wrongly withheld under section 30(c) of FOISA and to issue him with a revised review outcome (in terms of section 21) in relation to part 3 of his request (which must be other than in terms of section 12(1), by 15 January 2026.

Appeal

Should either the Applicant or the Authority wish to appeal against this decision, they have the right to appeal to the Court of Session on a point of law only.  Any such appeal must be made within 42 days after the date of intimation of this decision.

Enforcement 

If the Authority fails to comply with this decision, the Commissioner has the right to certify to the Court of Session that the Authority has failed to comply.  The Court has the right to inquire into the matter and may deal with the Authority as if it had committed a contempt of court.

 

David Hamilton

Scottish Information Commissioner

1 December 2025

 

Appendix 1: Information request

 

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?