Information Commissioner to take Scottish Government to court after deadline passes on Salmond files

Scotland’s information commissioner has instructed solicitors to begin legal proceedings against the Scottish Government in a Freedom of Information (FoI) row.

Ministers had until yesterday to produce materials related to the James Hamilton report into the conduct of former first minister Nicola Sturgeon.

Sturgeon was cleared by the independent probe of breaching standards rules over meetings and calls she had with her predecessor, Alex Salmond, after harassment accusations against him emerged.

The government’s legal advice was also called for.

Yesterday First Minister John Swinney said the government will respond to the commissioner “as soon as practically possible”, adding: “I do not expect this will take much longer.”

But the administration has failed to meet the commissioner’s deadline and he has now instructed solicitors to bring legal proceedings against the government in the Court of Session.

The matter relates to a FoI request placed by a member of the public.

The commissioner’s office said: “The commissioner’s decision in this case requires the disclosure of some of the requested information, while also requiring the Scottish Government to issue a new response in relation to other information, which had been incorrectly withheld on cost grounds.  

“The commissioner notes that the full and timely compliance with his decision notices is a key element ensuring the effective operation of FoI in Scotland. He will not hesitate in exercising his power to refer non-compliance to the Court of Session in circumstances where an authority fails to comply. 

“He has, therefore, instructed his solicitors to take the next steps in the certification process to the court.  Once certified, the court may then investigate the matter, and may treat a failure to comply as contempt of court.”

The Scottish Government has been contacted for comment.

The accusations against Salmond led to a criminal trial in which he was acquitted of all charges.

The complainers in the case have exercised their legal right to anonymity.

Swinney has said the need to uphold that anonymity has affected the government's disclosures in the FoI matter. He told the Scottish Parliament: “The courts have made it clear the identities of those who complain in relation to allegations of sexual assault must have their identities protected, and there are no circumstances in which I will do anything that risks breaking those court orders. I cannot release information which would breach those court orders and amount to a contempt of court.”

However, Fergus Ewing MSP, a former Scottish Government minister, has accused him of hiding behind complainers.

At FMQs, Ewing said: “My question is this: isn't the first minister using the excuse of jigsaw identification as a human shield as a pretext for declining to release information – because the real reason is it will cause extreme embarrassment to several people who are in the Scottish Government now, and previously were in that trusted position?”

Swinney told the chamber: “My duty as first minister at all times is to obey the law. And Mr Ewing is inviting me to be cavalier with the orders that have been passed by a court in this country. And I want to be crystal clear with parliament, I will do not one bit of it.”