12 January 2026
On 22 March 2021, a report by James Hamilton on the former First Minister’s self-referral under the Scottish Ministerial Code was published.
On 5 April 2021, a FOI request was made to the Scottish Government for all written evidence submitted to Mr James Hamilton’s investigation into the former First Minister.
The Scottish Government responded to this request, claiming that the information was not held, submitting that as an independent adviser on the Ministerial Code, Mr Hamilton was not subject to the Freedom of Information (Scotland) Act 2002 (FOISA). This was appealed to the Commissioner, who found that this information was held by the Scottish Government and required a new response to this request.
The Scottish Government appealed the Commissioner’s decision to the Court of Session which found in the Commissioner’s favour. The Scottish Government was therefore required to comply with the Commissioner’s decision.
The Scottish Government complied with the decision on 23 January 2024. The Scottish Government subsequently supplied the requester with links to information already available but withheld the remaining information on a number of grounds. This was subsequently appealed to the Commissioner.
The Commissioner considered the appeal and, On 27 November 2025, issued Decision 279/2025 requiring the Scottish Government disclose some of the withheld evidence.
On Friday 9 January 2026, the Commissioner was advised that the First Minister has decided to appeal this Decision to the Court of Session.
Separately, but related to the core case, an FOI request was made for all communication relating to the earlier decision that had led to the Court case.
In May 2025, the Scottish Government refused this request but on appeal the Commissioner issued Decision 065/2025 requiring disclosure of Scottish Government communications and instructing further searches including business and personal WhatsApp accounts. Ministers have appealed this decision and it will be heard in the Court of Session on 29 January 2026.
A date for the appeal regarding the actual evidence submitted to the inquiry has not yet been set.
