JUDGMENT SUMMARIES
Summaries of opinions (judgments) provide a short explanation of judicial decisions in order to assist understanding and may be published in cases where there is wider public interest. They provide the main findings, but do not form part of the reasons for the decision.
The judgment published on the Scottish Courts and Tribunals website is the only authoritative document.
The Scottish Information Commissioner v The Scottish Ministers
Jun 3, 2026
Background
In 2019, the then First Minister, Nicola Sturgeon, referred herself for an independent investigation into whether she had breached the Scottish Ministerial Code in relation to meetings and discussions with her predecessor, Alex Salmond.
On 22 March 2021, a report by lawyer James Hamilton was published. The report found that Nicola Sturgeon had not breached the Scottish Ministerial Code in the ways alleged, including by misleading Parliament.
On 27 October 2024, Benjamin Harrop made a freedom of information request to the Scottish Ministers seeking communications and information relating to the report. The Scottish Ministers disclosed some information but withheld other material, citing exemptions under the Freedom of Information (Scotland) Act 2002 (“FOISA”).
Mr Harrop then applied to the Scottish Information Commissioner (“Commissioner”) under section 47 of FOISA, seeking disclosure of further information falling within the scope of his request.
On 1 December 2025, the Commissioner issued Decision Notice 281/2025 under section 49(5) of FOISA, requiring the Scottish Ministers to disclose certain information and provide a revised review outcome by 15 January 2026.
Documents were eventually released by the Scottish Ministers on 24 February 2026, following correspondence between the Commissioner and the Scottish Ministers.
The Scottish Ministers maintained that the principal cause of the delay was the need to redact material in order to avoid the jigsaw identification of complainers in the Alex Salmond sexual offences trial and other civil proceedings.
The Commissioner asked the court to determine whether the Scottish Ministers had failed to comply with the Decision Notice within the required timeframe and, if so, to deal with them as though they had committed a contempt of court.
The Scottish Ministers submitted that their conduct did not amount to contempt because their failures had not been wilful and did not demonstrate disrespect or disregard for the Commissioner’s authority.
Conclusions
The court found that the Scottish Ministers deliberately failed to comply with the Commissioner’s notice within the specified time limit.
Detailed work on redacting the documents did not begin until after the Christmas break in 2026, despite the notice having been issued at the beginning of December.
Although the Scottish Ministers ultimately disclosed the information after the petition was raised, they failed to do so within the statutory timeframe for disclosure. Rather than requesting the Commissioner for agreed extensions to a deadline imposed by the Commissioner in accordance with the provision of FOISA, the Scottish Ministers had informed the Commissioner they would comply by a time they chose, “as soon as possible” or “as soon as reasonably possible”.
The court was satisfied that the failures by the Scottish Ministers amounted to contempt of the Commissioner. The court held that it should invoke powers available to it in respect of contempt of court in order to impose a sanction.
The court admonished the Scottish Ministers for their failure to comply and awarded expenses against them on an agent-client, client-paying basis.
3 June 2026