Ministers were found to have breached Freedom of Information legislation by Scottish Information Commissioner (SIC) Daren Fitzhenry, following a 16-month transparency battle with The Scotsman.
Such was the strength of the public interest argument in favour of disclosing the modelling used by the Government at the time, the commissioner said officials should have released the information when the initial request was made in September 2020, just as ministers began the move to reintroduce restrictions.
Opposition parties labelled the decision by the Government as a “damning indictment” of the SNP’s approach to transparency and described the SIC ruling as a “hefty rebuke”.
The ruling comes as the death toll from Covid-19 in Scotland went past the grim milestone of 10,000 deaths, with 41 recorded on Friday alongside 9,910 new cases of the virus.
It also comes as Scotland’s NHS continues to strain under the weight of hospitalisations and staff absences caused by the Omicron variant.
An average of more than 7,000 staff were off work every day in the week up to January 11, official figures show – three times higher than it had been a month earlier.
Between the date of the information request and the day Nicola Sturgeon moved most of Scotland into ‘level three’ restrictions and reopened hospitality, Scottish Government figures state that a total of 5,156 people died in what was one of the deadliest phases of the pandemic.
In his decision, which means the Government will now be forced to publish their modelling for the second wave, Mr Fitzhenry accepted the data constituted information that was being used to help develop policy – a legitimate reason not to disclose the information.
However, the commissioner concluded that in “all the circumstances” of the case, the public interest lay in favour of disclosure.
Accepting ministers required “space” to prepare for potential developments in the pandemic, particularly with forecasting analysis, Mr Fitzhenry said the “serious consequences” of introducing restrictions meant the public interest in disclosure “carries considerable weight”.
He said disclosure of the information would allow others to “draw attention to any perceived errors”, which could “improve the baseline evidence from which policy was being developed”.
The commissioner concluded: “There is a strong public interest in allowing the public to analyse the forecasts to allow for further input, with the potential of improving the baseline and driving up the quality of decision making.”
He also criticised the failure of the Government to respond to the request within the 20-day statutory deadline.
Opposition parties rounded on the Government, arguing the SNP Government’s failure to be transparent undermined public trust, particularly with Covid restrictions.
Sandesh Gulhane, the Scottish Conservative’s health spokesperson, said the ruling was “damning” and called on Ms Sturgeon to release all data used to make decisions around the pandemic.
He said: “The First Minister is forever proclaiming how open and upfront she is with the public over Covid, yet she chose not to disclose data pointing to an imminent second wave and predicted spike in deaths.
“Given that Nicola Sturgeon had stated a few weeks earlier that Scotland was ‘not far away’ from eliminating Covid, she had – as the information commissioner points out – a duty to inform people that things were likely to get much worse. She must now urgently explain why she failed in that duty.”
Scottish Labour’s deputy leader Jackie Baillie said the ruling was a “damning indictment” of the SNP’s “culture of secrecy and spin”.
She said: “Our Covid response depends on public trust, so transparency from the Government is essential.
“We need to be as open and honest with people as possible about this kind of data, so that everyone can understand and support the steps taken in response.”
Alex Cole-Hamilton, the leader of the Scottish Liberal Democrats, said it was another example of the Scottish Government refusing to “treat the public like adults”.
He said: “Allowing the public an insight into projections for a second wave of Covid would not only have helped people to understand the scale of the challenge that the country faced, but would have allowed others to pick through the data and spot any issues.
"Instead, once again the Scottish Government chose to make policy in the most opaque and obscure manner.
"This is a hefty rebuke from the Information Commissioner, but sadly I have little faith it will make this contemptuous government change its ways.”
A Scottish Government spokesperson said: “We have received the decision and are considering its terms.”