Scotland’s Information Commissioner David Hamilton has applied for permission to take a freedom of information dispute to the UK Supreme Court, arguing that a Court of Session ruling has made it too difficult to obtain legally privileged documents under Scottish law.

The case centers on the Scottish government’s refusal to release material linked to the inquiry that cleared former First Minister Nicola Sturgeon of breaching the ministerial code. Ministers have cited legal professional privilege as grounds for refusing the freedom of information request, and the Court of Session eventually backed that position. The Court of Session overturned an earlier ruling by Hamilton that the documents should be released; Hamilton is now seeking to escalate the matter to the UK’s highest court.

Hamilton said the Court of Session’s ruling runs contrary to the Scottish Parliament’s intention behind the freedom of information law. “It is my view that this ruling runs contrary to the parliament’s clear intention behind the FOI Act,” he said in a statement. “There are significant implications and risks placed on the public’s right to access information because of this ruling – it is therefore clearly in the public interest that I seek to challenge this at the Supreme Court.”

The freedom of information request at issue was filed by Benjamin Harrop, who has said he joined the SNP in 2014. Harrop sought internal emails, messages and other communications about whether the Scottish government had a legal right to withhold material gathered by Irish barrister James Hamilton KC, the independent adviser on the ministerial code whose 2021 investigation concluded that Sturgeon had not breached the code. While some information was eventually divulged, ministers claimed legal privilege over some of the correspondence, and the Court of Session ruled those documents did not have to be disclosed.

Scotland’s freedom of information law allows some information requests to be refused if responding would compromise confidential communications between lawyers and their clients, but the exemption is subject to a public interest test. Hamilton’s challenge argues that the Court of Session ruling set too high a bar for obtaining legally privileged documents through the FOI regime.

The underlying dispute can be traced to the falling-out between Sturgeon and Alex Salmond, her predecessor as first minister and one-time mentor, over the Scottish government’s handling of harassment complaints against Salmond. Salmond challenged the way the investigation into the complaints was conducted, and in 2019 government lawyers conceded the process had been unlawful and procedurally unfair.

The fallout triggered allegations that Sturgeon had breached the ministerial code through her handling of contacts with Salmond and by misleading the Scottish Parliament about what she knew of the process and when. James Hamilton KC conducted the investigation into those allegations and concluded in 2021 that Sturgeon had not breached the code. In a separate criminal case, Salmond was cleared in 2020 of sexually assaulting nine women.

Harrop has written on the Wings Over Scotland website about his efforts to obtain information, claiming the Scottish government has a “pathological aversion to transparency and accountability.”

Scottish Labour’s acting leader Jackie Baillie said the legal challenge carried significant implications for how disclosure disputes are decided. “This legal challenge could have significant implications for the disclosure of information,” Baillie said. “However, it should not take lengthy legal disputes to get answers from the SNP government.” She added: “We need to see an end to the culture of cover-up that the SNP has created and a renewed commitment to openness and integrity in government.” Baillie has separately claimed that too often “the SNP operates under a cloak of secrecy.”

The Scottish government declined to comment on the substance of the challenge. “As this is subject to live litigation in would not be appropriate to comment,” a Scottish government spokesperson said.

Before his death from a heart attack in October 2024, Salmond had been pursuing a separate civil case against the Scottish government, seeking damages arising from the unlawful handling of complaints against him. Millionaire businessman and former rock musician Paul McManus has since taken over the legal rights of that case and has said he will continue the action.

If the Supreme Court grants permission to appeal, the case would put the balance between legal professional privilege and the public interest in disclosure squarely before the UK’s highest court — a question Hamilton said carried significant implications for citizens’ right to information.