The Inner House of the Court of Session has upheld an appeal by the Scottish Ministers against a decision of the Scottish Information Commissioner ordering disclosure of legally privileged communications about the Government's earlier appeal in the James Hamilton report case, holding that the Commissioner erred in law in his application of the public interest test.
Lord Malcolm, delivering the opinion of the court sitting with the Lord President and Lord Clark in The Scottish Ministers v The Scottish Information Commissioner (XA29/25), said that while the Freedom of Information (Scotland) Act 2002 had removed the absolute guarantee of confidentiality that public authorities enjoy at common law, it had not removed the damage to the administration of justice caused by disclosing legal advice or litigation material without the client's consent.
Any authority ordered to disclose such material was entitled to a decision-making process in which it was clear that this factor had been appreciated and fully taken into account. The Court, he said, the court was not satisfied that could be said of the decision under challenge.
Section 36(1) of the Freedom of Information (Scotland) Act (FOISA) exempts information in respect of which a claim to confidentiality of communications could be maintained in legal proceedings.
The exemption is qualified and subject to the public interest test in section 2(1)(b), under which information may only be withheld if the public interest in maintaining the exemption outweighs that in disclosure.
The court noted that section 36(1) covers a wider range of confidential communications than its counterpart in section 42(1) of the Freedom of Information Act 2000, with legal professional privilege being only a subset, so not every section 36(1) claim would engage the issues in this case.
The dispute arose from Decision 004/2023, in which the Commissioner found that evidence gathered by James Hamilton, the independent adviser on the Scottish Ministerial Code, during his investigation into whether the then First Minister had breached the code was held by the Ministers for FOISA purposes.
The Inner House refused the Ministers' appeal against that decision in December 2023. The following day, requester Benjamin Harrop – a member of the public - asked for all emails, messages, WhatsApps, minutes and other communications between ministers, special advisers and officials discussing that appeal. The Ministers released a small amount of redacted correspondence and withheld the remainder, claiming privilege for part of it.
The Ministers declined to provide the privileged material to the Commissioner, relying on section 50(5) of the Act, which exempts an authority from complying with an information notice where the information consists of legal advice about its obligations under the Act or communications made in connection with proceedings under it.
In correspondence with the Commissioner's office the material was described as "standard official level correspondence of a type expected when preparing for litigation". In Decision 065/2025 the Commissioner, having had to decide the matter without sight of the information, accepted that the exemption was engaged but found the public interest favoured disclosure, treating that description as indicating the material contained nothing unusual and that the case for confidentiality was less compelling than it might otherwise be.
The Court broadly agreed with the Ministers' criticism of the weight given to that phrase. Once it was accepted that the information attracted privilege, it did not matter that it was contained in official level correspondence, and even if it contained nothing unusual, that did not dilute the importance of maintaining privilege.
Advice from in-house lawyers and internal documents prepared for litigation did not fall into an inferior category of privilege. The Commissioner's difficulty in carrying out the test without seeing the material may have led him to place more weight on the description than it could reasonably bear, the Court said.
The judges also rejected the Commissioner's view, evident both in this decision and in his earlier Decision 193/2024, that the importance of maintaining the exemption diminished once the underlying proceedings had concluded.
Privilege was justified not only by protecting advice from an immediate adversary during live litigation but by the general chilling effect if advice could not be sought with a guarantee of confidentiality, reflected in the principle that once privileged, always privileged.
On the disclosure side of the balance, the court found that the Commissioner's reliance on sustained public interest in the Hamilton investigation did not explain how communications about whether material was "held" under section 3 of the Act would contribute to that debate at all, still less to an extent justifying disclosure of privileged material.
Counsel for the Commissioner had been unable to offer a clear and compelling explanation at the hearing. Intense public interest in a subject was not the test, and litigation involving public authorities on matters of high public interest made frank legal advice more rather than less important.
The Court contrasted the reasoning in Decision 193/2024, which had identified a specific public interest in knowing whether the appeal was taken against legal advice, and found no comparable justification in the decision under challenge.
It said the exemption was not thereby elevated to absolute status and there would be cases where the harm from disclosure did not outweigh the public interest in publication. It endorsed the statement in Coppel's Information Rights (https://cornerstonebarristers.com/information-rights-a-practitioners-guide-to-data-protection-freedom-of-information-and-other-information-rights-5th-ed/ ) that some clear, compelling and specific justification must be shown to override the obvious interest in privilege, and found nothing in the Commissioner's reasoning that could be so described.
Although not necessary for its decision, the court commented on section 50(5). It noted the First-tier Tribunal's analysis of the equivalent provision, section 51(5) of the 2000 Act, in Ministry of Justice v Information Commissioner, which held that the provision prevented the Commissioner from gaining an unfair advantage by inspecting an authority's legal advice about the Act, given his dual role as adjudicator and potential opposing party. The present case went further, in that the Commissioner had been the actual opposing party in the litigation and had ordered disclosure of advice given to his adversary in it.
The Court found that the Commissioner's evident unhappiness at the Ministers' refusal to volunteer the material had been an illegitimate factor influencing his public interest assessment, and that he had failed to weigh the unfair advantage considerations underpinning the provision. It observed that it was unaware of any parliamentary consideration in either jurisdiction of the apparent conflict between the information notice carve-out and the absence of an absolute exemption for the same material.
The Court noted a dispute at the hearing over whether all legal advice on the appeal had already been disclosed following Decision 193/2024, with the Ministers maintaining that the withheld material included in-house advice. It suggested the explanation was likely that the earlier request covered advice "given" to the Government, such as input from counsel and law officers.
The appeal was upheld and the case put out by order for argument on disposal, the options being reduction of the whole decision with a remit, reduction of the privilege element only, or quashing the disclosure order without a remit.
A separate appeal by the Ministers against Decision 279/2025, ordering disclosure of the written evidence submitted to the Hamilton investigation, remains pending before the court.
