Evidence gathered in an investigation into whether Nicola Sturgeon breached the ministerial code should not be kept private, judges have ruled.
They rejected an appeal from Scottish ministers for the information to stay under wraps.
Lord President of the Court of Session, Colin Sutherland, said the court was “satisfied” that ministers are in a position to provide the evidence sought.
The ruling came after James Mure KC had argued any written evidence gathered by an independent adviser tasked to investigate the former first minister should be kept private in response to a challenge from the Scottish Information Commissioner (SIC).
In January, the body ruled ministers were wrong to state the information requested by Benjamin Harrop using freedom of information legislation was not “held” by them and instructed them to carry out a review of their response.
Ms Sturgeon referred herself to independent adviser James Hamilton in 2019 over concerns she failed to record meetings and phone calls she had with predecessor Alex Salmond and his former chief of staff after he was the subject of complaints from two civil servants.
Mr Hamilton investigated and issued a report in March 2021 in which he stated Ms Sturgeon did not breach the code.
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Mr Harrop asked Scottish ministers a fortnight later to be provided with all written evidence gathered by Mr Hamilton during his probe.
They declined to hand over the information on two occasions, prompting Mr Harrop to seek a review by the SIC.
Ministers then appealed against the SIC’s ruling that there should be a review of their initial responses, arguing the commissioner was “too technical” in his approach to the word “held”.
They also claimed any disclosure of the written evidence would be detrimental to Mr Hamilton’s independence as an adviser.
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Mr Mure told judges on Wednesday the Scottish government stored information gathered by Mr Hamilton “purely on his behalf” and only his final report was ever meant to be published.
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Mr Mure told the court “the information is held on behalf of Mr Hamilton, that the ministers have no control over it, and it remains either stored by Mr Hamilton or stored on his behalf in a government IT system. It remains in the control of Mr Hamilton”.
David Johnston KC, for the SIC, suggested ministers arguing information was not held or could not be provided because it was in the hands of others could have a damaging effect on transparency in future.
He said: “If that is a valid restriction, it clearly undermines the efficacy of the Freedom of Information Scotland Act. It would be a major inroad on freedom of information.”
