The Scottish Information Commissioner ruled the Government had incorrectly claimed the evidence, which included highly controversial and legally challenging claims and detail, was held by James Hamilton rather than by ministers.
It comes after the Government refused to release the information in a bid to block its release. Ministers will now be forced to provide a fresh reason for withholding the information or publish the written evidence in full.
The Hamilton Report was undertaken concurrently with the Scottish Parliament’s inquiry into the Government’s botched handling of harassment complaints made against the former first minister, Mr Salmond, now leader of the Alba Party.
The report ruled Ms Sturgeon did not breach the ministerial code, ultimately saving her political career as reports afterwards suggested the SNP leader had resolved to resign if she was found to have breached the code. This was despite the parliamentary inquiry ruling she had misled the committee in her evidence.
Much of the information published as part of the Hamilton Report’s process was subject to fierce political scrutiny and legal debate, most notably when the Crown Office intervened and demanded The Spectator magazine remove Mr Salmond’s full evidence to the inquiry.
The submission was initially published, taken down, redacted and republished by the Scottish Parliament following the Crown Office’s intervention.
Ministers were asked by an applicant to publish all the written evidence in full in April 2021. But ministers claimed they did not hold the information and it was instead held by Mr Hamilton, who was outside the scope of the Freedom of Information legislation. The commissioner, however, disagreed.
In his decision notice, Daren Fitzhenry states: “The referral with its associated investigation was instructed and carried out, evidence was obtained, and the report produced, for the purpose of considering whether the First Minister’s conduct complied with the code and advising on appropriate sanctions if it did.
"Information was obtained and created for that purpose. In the commissioner’s view, this amounts to an appropriate connection with the authority such that information is held by it for the purposes of section 3(2) of FOISA.
“As noted above, although the investigation was subject to ministerial oversight, it was made clear that secretariat staff should not disclose the information outwith the secretariat itself. However, this does not affect the commissioner’s view that the information is held by the authority.
"Here, the staff of the secretariat work for the authority. Any restrictions on information security or disclosure imposed on them have been imposed by more senior officials of the authority. The restrictions could, if so desired, be lifted by the same or other senior officials. In other words, there is nothing in the restrictions under which the secretariat staff worked which binds the authority: it chose to impose them and could choose to lift them”
Ministers will be forced to provide a new response to the applicant by March 17 – almost two years after the initial request.