NextFin News - In a pivotal legal confrontation at the Court of Session in Edinburgh, the Scottish Government argued on Thursday, January 29, 2026, that the Information Commissioner’s approach to the public interest is "insufficient" to warrant the disclosure of sensitive legal communications. The hearing marks the latest escalation in a multi-year transparency battle concerning the investigation into whether former First Minister Nicola Sturgeon breached the ministerial code during the Alex Salmond inquiry.
Representing the Scottish ministers, Christine O’Neill KC told the appeal court that the commissioner’s decision to order the release of internal communications failed to meet the high threshold required to displace legal professional privilege. The dispute centers on a request issued by the Information Commissioner in March 2025, which demanded all communications related to a previous 2023 court battle. O’Neill contended that the commissioner’s justification for disclosure did not adequately balance the "very strong public interest" in maintaining confidential legal advice against the demand for government transparency.
The roots of this case trace back to the James Hamilton KC investigation into Sturgeon’s conduct. While Hamilton eventually found that Sturgeon had not intentionally breached the code, the process of the investigation—and the government’s subsequent refusal to release evidence gathered during it—has remained a flashpoint for political and legal scrutiny. According to the Scottish Daily Express, the government has already spent approximately £73,024 in taxpayer funds defending its position in these related transparency cases.
The core of the legal argument presented by O’Neill rests on the principle of legal professional privilege (LPP), a cornerstone of the UK legal system that ensures clients can receive candid advice from lawyers without fear of disclosure. The Scottish Government maintains that the Information Commissioner overstepped by applying a "general approach" to the public interest that did not give sufficient weight to the long-term damage that eroding LPP could cause to the functionality of government. If the court finds that the commissioner’s test was indeed insufficient, it could set a precedent that shields a wider array of government deliberations from Freedom of Information (FOI) requests.
From a broader analytical perspective, this case illustrates a deepening tension between the "right to know" and the "right to govern in private." Data from the Scottish Information Commissioner’s office indicates a rising trend in appeals where public authorities cite legal privilege to withhold information. In 2025 alone, the commissioner issued Decision 065/2025, which not only required the disclosure of formal documents but also instructed searches of business and personal WhatsApp accounts—a move the government has fiercely resisted. The inclusion of private messaging platforms in disclosure orders represents a significant shift in the digital-era definition of "government records."
The timing of this appeal is also politically sensitive. With the Holyrood elections approaching, the potential release of internal communications regarding the Sturgeon-Salmond era could have significant electoral consequences. Critics of the government, including various opposition MSPs, have characterized the legal challenge as a "secrecy tax" on the public, arguing that the continued use of litigation to block transparency undermines trust in devolved institutions. Conversely, legal scholars argue that if the Information Commissioner is allowed to displace privilege too easily, it may lead to a "chilling effect" where government officials avoid seeking written legal advice altogether to prevent future disclosure.
Looking forward, the ruling from the Court of Session—presided over by the Lord President, Lady Wise, and Lord Clark—will likely define the boundaries of the Information Commissioner’s power for the next decade. If the court upholds the government’s view that the commissioner’s approach was insufficient, it will reinforce the near-absolute nature of legal privilege in a political context. However, if the appeal is dismissed, it could trigger a wave of disclosures that reach into the personal devices of high-ranking officials, fundamentally altering how government business is conducted in the UK. There is also the distinct possibility that this case will eventually reach the UK Supreme Court, as both parties seek a definitive ruling on the intersection of transparency law and constitutional privilege.
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