Full Breakdown
Supreme Court Asked to Decide Scottish Government’s FOI Refusal
8/27/2026, 9:36:26 PM
Core Event
The UK Supreme Court has been petitioned to determine whether Scotland’s government can lawfully withhold documents related to the inquiry that cleared First Minister Nicola Sturgeon of breaching the ministerial code. The request, made by member of the public Benjamin Harrop, sought internal emails, messages and other communications concerning the legal basis for the refusal. Scottish ministers invoked legal professional privilege to block the Freedom of Information (FOI) request.
Background & Context
The inquiry, which concluded that Sturgeon did not violate the ministerial code, generated public interest in the internal deliberations that led to the decision. Under Scotland’s FOI legislation, requests may be denied when disclosure would compromise confidential lawyer-client communications, but such refusals must pass a public-interest test. Information Commissioner David Hamilton initially ruled that the documents should be released, a decision later overturned by the Court of Session.
Legal Positions
- Scottish Government: Argues that the withheld material is protected by legal professional privilege, asserting that disclosure would undermine confidential legal advice.
- Information Commissioner David Hamilton: Expressed concern that the Court of Session’s ruling could set a precedent that makes it excessively difficult to obtain legally-privileged documents, and is now seeking permission to bring the matter before the Supreme Court.
- Benjamin Harrop: Contends that the public has a right to understand whether the government possessed a legitimate legal basis for the refusal.
Potential Impact
If the Supreme Court upholds the Scottish government’s stance, the threshold for releasing privileged material in FOI requests could become higher, potentially limiting transparency in future inquiries. Conversely, a ruling against the government could tighten the public-interest test, making it easier for requesters to access documents even when legal privilege is claimed. Legal scholars note that the outcome may influence how other UK jurisdictions balance confidentiality with the public’s right to know.
