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 Ministers against The Scottish Information Commissioner

Oct 30, 2026

The First Division of the Inner House of the Court of Session today issued its judgment in appeals by the Scottish Ministers against decisions of the Scottish Information Commissioner.

On 22 September 2026 the First Division heard connected appeals by the Scottish Ministers against decisions of the Scottish Information Commissioner. These arose from Freedom of Information requests from individuals for evidence used by the Hamilton Inquiry during the investigation into whether the former First Minister Nicola Sturgeon breached the Ministerial Code during the government’s handling of complaints against Alex Salmond. The appeals focussed on whether the Ministers were entitled to withhold certain material as exempt under section 26(c) of the Freedom of Information (Scotland) Act 2002 on the basis disclosure would constitute, or be punishable as, a contempt of court.

The Ministers considered disclosure could create a real risk of “jigsaw identification” of complainers under the protection of reporting restrictions, even to a section of the public rather than the public at large. The Commissioner’s position was that the exemption only applied where disclosure would constitute a contempt, not merely if there was a risk; “jigsaw identification” was taken into account but the Commissioner concluded disclosure would not lead to identification of the complainers.

The First Division, Lord President (Pentland) delivering the opinion of the court, concluded it was essential for the Commissioner correctly to understand the purpose, meaning and effect of the reporting restrictions and the nature of disclosures which would constitute a breach when deciding if the Ministers were entitled to rely on the exemption. The case of Murray v HM Advocate, unfortunately not raised until the appeal proceedings, had authoritatively stated the correct approach to what may amount to breach of reporting restrictions. There the court held that it is sufficient for a breach if disclosure would produce a real or substantial risk of identification. If, as the Commissioner accepted, there would be a risk of assumptions being made about the complainers’ identities due to the release of the information, this would serve to heighten the danger of their being identified and the orders would thereby be breached.

In addressing the question of whether release of the information would amount to a contempt it was crucial to bear clearly in mind that the fundamental purpose of the reporting restrictions was to protect the complainers’ dignity, privacy and safety. Permitting assumptions to be made about their identities was inconsistent with the orders’ objective and amounted to a material misdirection in law.

The First Division held that the Commissioner erred in law in ordering the Ministers to disclose the exempted material and allowed the Ministers’ appeals. The court remitted matters to the Commissioner for reconsideration.

The judgment published on the Scottish Courts and Tribunals website is the only authoritative document.

30 October 2026