The Court of Session has ruled that the Scottish Information Commissioner 'erred in law' when he ordered ministers to disclose exempted material relating to the Salmond files, upholding the Scottish Government's appeal.
The dispute centred on freedom of information requests for evidence used during the Hamilton Inquiry, a probe launched by then first minister Nicola Sturgeon into whether she had breached the ministerial code in relation to the Holyrood inquiry into her predecessor Alex Salmond. Information Commissioner David Hamilton had ordered Scottish Government ministers to release the information.
Ministers appealed, arguing that disclosure could identify complainers in the later criminal trial against Salmond, in which he was cleared of all charges. They said release could violate a court order and could amount to contempt.
Lawyers for the Information Commissioner argued that while the material could "permit assumptions" about the identity of complainants, it would not allow for "confirmation or refutation of such assumptions". A panel of three judges rejected that argument, ruling that it is "sufficient for a breach of the orders if disclosure of the information would produce a real or substantial risk of identification".
The judgment said that a risk of assumptions being made about the complainers' identities would heighten the danger of their being identified, and that it is not a prerequisite of a breach that assumptions should be capable of being confirmed. It is sufficient if disclosure would create a real risk of identification in the communities in which they lived or worked.
The judges also addressed whether release of the information would amount to contempt of court, saying the fundamental purpose of the orders was to protect the complainers' dignity and privacy and to protect their safety, and that permitting assumptions about their identities is "inconsistent with the objective of the orders and amounts to a material misdirection in law".
Salmond, who died in 2024, had been accused of sexual harassment by two civil servants, but a judge found the investigation into the allegations had been "tainted by apparent bias" and awarded him more than £500,000 in damages.
Analysis
Why This Matters
- The ruling sets a new legal test for protected material: a real or substantial risk of identification is enough to block disclosure, without the need for confirmation.
- It preserves privacy and safety protections for the complainers in the Salmond case, whose identities cannot be exposed through released evidence.
- The decision settles the specific freedom of information dispute between the Scottish Government and the Information Commissioner over Hamilton Inquiry evidence.
Background
The Hamilton Inquiry was a probe launched by then first minister Nicola Sturgeon into whether she had breached the ministerial code in relation to the Holyrood inquiry into Alex Salmond. Salmond, who died in 2024, was later acquitted of all charges in a criminal trial. He had been accused of sexual harassment by two civil servants, but a judge found the investigation into those allegations had been "tainted by apparent bias" and awarded him more than £500,000 in damages. The FOI dispute concerned requests for evidence used during the inquiry.
Key Perspectives
The Scottish Government: argued that disclosing the material could identify complainers in the criminal trial, which would violate a court order and could amount to contempt; a panel of three judges upheld this appeal.
Information Commissioner David Hamilton: had ordered the material to be released, with his lawyers arguing it could "permit assumptions" about complainers' identities but not allow "confirmation or refutation of such assumptions".
What to Watch
- Whether the Information Commissioner seeks to appeal the ruling to a higher court.
- How the Court of Session's "real or substantial risk of identification" test is applied to any future disclosure requests for sensitive evidence.
- Whether further legal proceedings clarify the contempt point the judges addressed.
Checked
12 claims in this story checked against 1 source: 12 supported.
Show each claim
- SupportedThe Court of Session ruled that the Information Commissioner “erred in law” by ordering ministers to disclose exempted Salmond-files material.STV News: “The Scottish Information Commissioner “erred in law” when he ordered ministers to disclose exempted material relating to the so-called Salmond files, a court has ruled.”
- SupportedJudges upheld the Scottish Government’s appeal against disclosure of Hamilton Inquiry evidence.STV News: “However this was rejected by a panel of three judges at the Court of Session, who upheld the ministers’ appeal.”
- SupportedThe dispute concerned freedom-of-information requests for evidence used during the Hamilton Inquiry.STV News: “The dispute between ministers and the Information Commissioner stemmed from freedom of information requests for evidence used during the Hamilton Inquiry.”
- SupportedThe inquiry was launched by then first minister Nicola Sturgeon into whether she breached the ministerial code in relation to the Holyrood inquiry into Alex Salmond.STV News: “the Hamilton Inquiry – a probe launched by then first minister Nicola Sturgeon into whether she had breached the ministerial code in relation to the Holyrood inquiry into her predecessor Alex Salmond.”
- SupportedDavid Hamilton had ordered Scottish Government ministers to release the information.STV News: “Information Commissioner David Hamilton had ordered Scottish Government ministers to release information relating to the Hamilton Inquiry”
- SupportedMinisters said disclosure could identify complainers in Salmond’s later criminal trial, in which he was cleared of all charges.STV News: “Ministers appealed against this in the courts, saying disclosure of the material could identify complainers in the later criminal trial against Salmond, in which he was cleared of all charges”
- SupportedMinisters said disclosure could violate a court order and could be considered contempt.STV News: “which would violate a court order and could also be considered contempt.”
- SupportedThe Information Commissioner’s lawyers argued the material could “permit assumptions” about complainants’ identities but not “confirmation or refutation” of them.STV News: “Lawyers for the Information Commissioner had argued that while the material could “permit assumptions” regarding the identity of complainants, it would not allow for “confirmation or refutation of such assumptions”.”
- SupportedThe judges said a real or substantial risk of identification is sufficient for a breach of the orders.STV News: “they said it is “sufficient for a breach of the orders if disclosure of the information would produce a real or substantial risk of identification”.”
- SupportedThe judges said assumptions about complainers’ identities would heighten the danger of identification, and that the assumptions need not be capable of confirmation.STV News: “there would be a risk of assumptions being made about the complainers’ identities due to release of the information, this would serve to heighten the danger of their being identified. “The orders would thereby be breached. “It is not a prerequisite of their being breached that assumptions should be capable of being confirmed”
- SupportedThe judges said the orders aimed to protect complainers’ dignity, privacy and safety, and that permitting assumptions about their identities was inconsistent with that objective and a material misdirection in law.STV News: “the fundamental purpose of the orders was to protect the complainers’ dignity and privacy and to protect their safety,” it read. “Permitting assumptions to be made about their identities is inconsistent with the objective of the orders and amounts to a material misdirection in law.””
- SupportedSalmond died in 2024, had been accused of sexual harassment by two civil servants, and a judge found the investigation tainted by apparent bias and awarded him more than £500,000 in damages.STV News: “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.”