Sturgeon investigation: Inner House allows appeal against SIC’s decision to order release of data subject to legal privilege

About this case:

• Citation:
  [2026] CSIH 15
• Judgment:
  External link
• Court:
  Court of Session Inner House
• Judge:
  Lord Malcolm

It was argued by the ministers that the commissioner adopted an erroneous approach to the public interest element of the request and ought to have required exceptionally compelling reasons to justify disclosure of privileged material. The commissioner maintained that he had adopted the proper approach, and that he had not minimised the weight to be given to privileged communications.

The appeal was heard by the Lord President, Lord Pentland, with Lord Malcolm and Lord Clark. C O’Neill KC and D Welsh, advocate, appeared for the appellant and Johnston KC for the respondent.

Public interest in disclosure

In January 2023, the commissioner decided that information gathered during an investigation by an independent adviser on the Scottish Ministerial Code, namely James Hamilton, as to whether the then First Minister Nicola Sturgeon had breached the code was “held” by the Scottish ministers in terms of section 3(2) of the Freedom of Information (Scotland) Act 2002. As a result, that information was susceptible to a FOI request made by a Mr Benjamin Harrop. An appeal against that decision was refused by the Inner House in 2023.

On 7 December 2023, the day after that judgment, Mr Harrop made a further request for all Scottish government communications discussing the appeal, while his first request, which sought all the written evidence submitted to Mr Hamilton as part of his investigation, remained outstanding. A small amount of redacted correspondence was disclosed, with some information said to be subject to legal professional privilege. This view was maintained by an internal review, after which Mr Harrop applied to the commissioner for a decision as to whether his request had been dealt with in accordance with the Act.

The commissioner concluded that the ministers required to disclose the LPP material to Mr Harrop. He took the view that the public interest in disclosure was of sufficient substance to outweigh the in-built public interest in maintaining the exemption. It followed that the ministers had failed to comply with their duty under the Act and disclosure of the LPP material was ordered.

For the ministers it was submitted that the Commissioner gave LPP less weight than other privileged material, apparently because the information had been described as “standard official level correspondence of a type expected when preparing for litigation”. In so doing, he wrongly minimised the weight which should have been attached to the privilege applying to the information and failed to engage with the ministers’ justification for the exemption.

Once privileged, always privileged

Delivering the opinion of the court, Lord Malcolm began: “This appeal concerns how best to reconcile the tension between the legislative decision that LPP information in the hands of a public authority sought by a freedom of information request is subject to a public interest balancing test and the concern of the common law to prioritise the privacy of such material in order to avoid harm to the proper administration of justice. To what extent has the policy of transforming a previous culture of public body secrecy to one of openness and accountability superseded the sanctity of legal advice given to public authorities and the confidentiality of their preparations for litigation?”

Considering the argument that the material was standard official level correspondence, he added: “Once it is accepted that the withheld information is subject to the claimed LPP exemption, what does it matter that it is set out in what had been described as official level correspondence? And even if, which we doubt, the assumption of nothing unusual or unexpected is well made, why does this dilute the importance of maintaining the privilege? We have difficulty in understanding why the ministers’ argument would have been more compelling if all communications regarding the appeal hearing were being considered. Advice from in-house lawyers and internal documents prepared for the purpose of litigation do not fall into a secondary or inferior category of LPP.”

Turning to the balance with the public interest, Lord Malcolm said: “There are clear indications in this decision that the Commissioner took the view that the importance of maintaining the exemption was diminished by the conclusion of the previous appeal proceedings. We do not agree. LPP is justified not only by protecting legal advice from the immediate adversary during the particular proceedings while they are live, but also by the general chilling effect if advice cannot be sought without any guarantee of confidentiality. It is this which has led to the aphorism that ‘once privileged, always privileged’.”

He concluded: “This is not to say that the exemption is elevated to an absolute status in respect of LPP. There will be occasions when any harm risked by disclosure will not outweigh the public interest in publication of information held by a public authority. However, we endorse the following passage in Coppel, Information Rights, at paragraph 30-020, [which states] ‘Some clear, compelling and specific justification for disclosure must be shown so as to override the obvious interest in legal professional privilege.’ We have not identified anything which could reasonably be so described in the Commissioner’s reasoning and have concluded that this constitutes an error in law which justifies upholding the minister’s challenge to his decision.”

The appeal was therefore allowed, with the case put out by order to discuss the appropriate disposal.