Information commissioner accuses Scottish government lawyers of ‘praetorian guard’ role

David Hamilton said the dispute over the so-called Salmond files illustrated what he described as a wider culture of secrecy within public bodies.

The files relate to James Hamilton’s inquiry into whether Nicola Sturgeon breached the ministerial code. Earlier this year, the Scottish government was found in contempt of court after delaying their release, with Lady Poole ruling that ministers had “deliberately failed” to meet a court-backed deadline for redacting and disclosing the material.

“Sometimes I wonder if the government legal directorate thinks it’s some kind of praetorian guard for the first minister,” Mr Hamilton told The Sunday Times. “I can’t square reality with the decisions that they make. The civil service needs to remember that it’s there to serve the people, not the government. They’re not there to get too protective of elected politicians.”

Mr Hamilton, a former police officer, also criticised the Crown Office for its lack of transparency over Operation Branchform, which investigated SNP finances and ultimately resulted in Peter Murrell, Ms Sturgeon’s estranged husband and former SNP chief executive, being sentenced to more than five years in prison for embezzlement.

He called for greater openness about why Ms Sturgeon was not charged and why a separate investigation into missing SNP donations was dropped.

“The Crown Office is an interesting one, because never more has there been questions about some of their decisions,” he said. “Now, I’m not saying they’re the wrong decisions. But ‘no, we’re not telling you’ is not a good look.”

He said conflicting accounts from the Crown Office and Police Scotland about the investigation warranted further scrutiny.

Although freedom of information decisions by the Crown Office cannot currently be appealed to the information commissioner, Mr Hamilton said he could use his statutory powers to compel other bodies, including Police Scotland, to disclose material where justified by the public interest.

Potential disclosures could include Ms Sturgeon’s written police statement and advice submitted by detectives to prosecutors.

“Just because an exemption [under FoI laws] is there doesn’t mean you need to use it. I think the Crown could go much further on the transparency side of things,” Mr Hamilton said.

Questions also remain over around £600,000 donated by independence supporters for a referendum campaign that did not take place. The money was described as “ring-fenced” but was subsequently spent elsewhere.

A Scottish government spokesman defended its record, saying more than 3,800 FoI requests had been handled since the start of the year, with more than 96 per cent answered on time.

The Crown Office said criminal justice depended on information being considered confidentially, while evidence used in court entered the public domain and other material remained subject to legal protections.