Court reprimands Scottish Government over FOI response delay on Salmond files

The Court of Session said Scottish ministers had shown ‘a lack of proper respect’ for the Information Commissioner.

The Scottish Government has been admonished by the Court of Session for failing to respond to an order from the Information Commissioner in time.

David Hamilton ordered ministers to release information relating to the Hamilton Inquiry – a probe launched by Nicola Sturgeon into whether she had breached the ministerial code in relation to the Holyrood inquiry into her predecessor Alex Salmond.

Mr Salmond – who died in 2024 – had been accused of sexual harassment by two civil servants, but the investigation into the allegations had been “tainted by apparent bias” according to a judge, who awarded him more than £500,000 in damages.

A freedom of information request was filed by campaigner Benjamin Harrop in relation to the Hamilton probe, but never fully complied with by the Government, despite repeated calls for it to do so by Mr Hamilton.

For the first time in the history of the post, Mr Hamilton took the Scottish Government to court, with ministers being admonished by the Court of Session on Wednesday.

The order was complied with on February 24 of this year, more than a month after the January 15 deadline set by the commissioner.

In a 28-page ruling, Judge Lady Poole said: “Having balanced all of the considerations relevant to sanction in this case, the court finds the appropriate response to the failures of the Scottish ministers is admonition, together with an adverse award of expenses on an indemnity basis.

“The Scottish ministers are admonished for their failures to comply until February 24 2026 with the parts of the notice that required steps to be taken by them by January 15 2026.”

The Government will also have to pay the commissioner’s legal fees.

Failure to comply in time, Lady Poole wrote, was not contempt of court, but “contempt of the commissioner”, allowing the court to “invoke powers available to it in relation to contempt of court”.

The failure also, the ruling said, “showed a lack of proper respect” for the commissioner.

At the time, First Minister John Swinney said the files could not be released in their entirety over fears they could identify complainers in the later criminal trial against Mr Salmond – in which he was cleared of all charges – which would violate a court order and could also be considered contempt.

Mr Hamilton welcomed the decision on Wednesday, adding: “This was the first time in more than 20 years of FOI that a commissioner has had to refer non-compliance with one of their decisions to the court.

“It was not a step taken lightly, and was all the more disappointing given that Scottish ministers have a role in making the law and an assumed respect for the rule of law.

“Failing to comply with my decisions undermines the fundamental principles of FOI and damages the information rights of individuals.

“I trust that the Scottish ministers will now reflect carefully on this ruling and review their broader legal approach to certain aspects of FOI compliance – and particularly those relating to the Hamilton inquiry.

“If Scotland’s FOI rights are to remain robust, effective and valued, the timescales for both the provision of information and compliance with my rulings must be respected by every public authority.

“People make FOI requests when the information they seek is important to them, and any inappropriate delay is a direct denial of their rights. We must work to ensure that this does not happen again.”

The Scottish Government has been contacted for comment.

Scottish Labour deputy leader Dame Jackie Baillie said the “bombshell” ruling is “another shameful episode from this scandal-hit SNP Government”.

She added: “Time and time again we see the same culture of secrecy and cover-up from John Swinney and the SNP – from illegally ignoring the FOI commissioner to dodging a parliamentary inquiry into the embezzlement scandal.

“John Swinney and the SNP are mired in sleaze and convinced the rules don’t apply to them.

“It’s time for the SNP to end the secrecy, respect the law and start delivering the transparency Scots deserve.”

Scottish Conservative justice spokesman Stephen Kerr said the ruling was a “damning indictment” of the Government.

“Freedom of information laws are there to protect the public’s right to know, yet the nationalist Government repeatedly failed to comply with the commissioner’s decision and deadlines,” he said.

“John Swinney, who has been a central figure in the SNP for 20 years, should be ashamed that he leads a party that evades scrutiny and accountability at every turn.”