FOI privilege ruling "erodes public interest test", says Scottish Commissioner in Supreme Court appeal

David Hamilton, the Commissioner, said the decision to seek leave had not been taken lightly but that the Inner House ruling of 26 March 2026 in The Scottish Ministers v The Scottish Information Commissioner (CSIH 15) ran contrary to the Scottish Parliament's clear intention behind the Freedom of Information (Scotland) Act 2002. He said the judgment placed significant risks on the public's right to access information and that it was therefore in the public interest to challenge it.

The Commissioner's position is that while the court was entitled to find that the public interest in this case favoured withholding the communications, its reasoning went further and gave legal professional privilege a status beyond that afforded by the Act. He argues this substantially limits the scope for the public interest to favour disclosure under the privilege exemption, and that it could have wider implications for the balancing exercise applied to other qualified exemptions.

Section 36(1) of FOISA exempts information in respect of which a claim to confidentiality of communications could be maintained in legal proceedings. It is a qualified exemption, subject to the section 2 public interest test, under which information cannot be withheld unless the public interest in maintaining the exemption outweighs the public interest in disclosure.

The equivalent provision in the Freedom of Information Act 2000, section 42, is also qualified. A separate provision, section 50(5) of FOISA, allows an authority to refuse to supply the Commissioner with legal advice concerning its obligations under the Act, or communications made in connection with proceedings under the Act, even when served with an information notice. The equivalent in the 2000 Act is section 51(5).

The case arises from a long-running dispute over material 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. In January 2023 the Commissioner decided that information was held by the Scottish Ministers for FOISA purposes, and the Inner House refused the Ministers' appeal in December 2023 ([2023] CSIH 46).

The day after that judgment, requester Benjamin Harrop (a member of the public) asked for all communications between ministers, special advisers and officials discussing the appeal. The Ministers disclosed a small amount of redacted correspondence and withheld the rest, part of it on privilege grounds.

In Decision 065/2025, issued in March 2025, the Commissioner ordered disclosure of the privileged communications and instructed further searches, including of business and personal WhatsApp accounts.

The Ministers had relied on section 50(5) to decline to supply the privileged material to him, describing it in correspondence as "standard official level correspondence of a type expected when preparing for litigation". Hamilton, who had to reach his decision without seeing the information, treated that description as one factor lending weight to disclosure.

The Inner House, in an opinion delivered by Lord Malcolm sitting with the Lord President and Lord Clark, upheld the Ministers' appeal ([2026] CSIH 15). The court held that the Commissioner had placed more weight on the "standard official level" description than it could bear, and that advice from in-house lawyers and litigation documents do not fall into a secondary category of privilege.

It rejected the view that the importance of maintaining the exemption diminished once the proceedings had concluded, citing the principle that once privileged, always privileged, and the chilling effect on future advice.

On the public interest in disclosure, the court found that the Commissioner's reliance on sustained public interest in the Hamilton investigation did not explain how communications about a statutory interpretation point on the meaning of "held" would contribute to that debate. It endorsed the formulation in Coppel's Information Rights that some clear, compelling and specific justification is required to override the interest in privilege, and found nothing in the Commissioner's reasoning meeting that description.

The court also commented on section 50(5), observing that the provision left the Commissioner in the difficult position of adjudicating a dispute in which he was the direct opposing party without having seen the withheld material. It found that his evident unhappiness at the Ministers' refusal to volunteer the documents had been an illegitimate factor in his public interest assessment, and noted that Parliament in neither jurisdiction appeared to have considered the tension between the information notice carve-out and the absence of an absolute exemption for the same material.

The court stressed that its decision did not turn on that point. It also stated that its ruling did not elevate the exemption to absolute status for privileged material, and put the case out by order for argument on the appropriate disposal.

The Commissioner's statement notes that in an earlier decision in the same series, Decision 193/2024, he had ordered the Ministers to disclose the legal advice given to them on the appeal, and that they complied and published it in October 2024 while maintaining he had erred. The requester then amended his application to exclude legal advice, on the understanding that none remained in the withheld material.

According to the Commissioner, it only became apparent during the Court of Session hearing that this was not the case, and the court has since accepted a late appeal from the Ministers against Decision 193/2024, the Government arguing that it does not accept his interpretation of the request in that case. A further Commissioner decision, 279/2025, ordering disclosure of the written evidence submitted to the Hamilton investigation, is also under separate appeal by the Ministers.

The Commissioner said that this is the first time a commissioner has taken steps to refer a matter to the Supreme Court.