Swinney government in contempt over "Salmond files" publication

The court ruled that the government failed to start work "timeously" on redacting files relating to an inquiry into whether former First Minister Nicola Sturgeon breached the ministerial code over her handling of complaints against her late predecessor, Alex Salmond.

An independent inquiry by lawyer James Hamilton in 2021 found she had misled Holyrood as to her knowledge of allegations against Salmond, but it was a "genuine failure of recollection", and not a deliberate attempt to mislead so did not breach the code.

However a member of the public has, through Freedom of Information requests, been seeking answers as to how and why James Hamilton reached that decision.

After his latest request for documents, the Scottish Government said they could not be published in case they identified the women complainers in the Salmond criminal case.

But the Scottish Information Commissioner, David Hamilton, disagreed, saying they could be published if sensibly redacted. On December 1 last year he ordered the government to release documents in January. But they were not published until February.

As a result he initiated unprecedented contempt proceedings after the government failed to meet the legal deadline.

And today Lady Poole ruled that the government "deliberately failed" to begin mandatory redacting of information in the documents and rejected government claims of complexity as an excuse for not starting the work promptly.

She admonished the government, and ordered them to pay the Scotish Information Commissioner's legal costs.

A Scottish government spokesperson said it "acknowledged and respected" the ruling.

In her 28-page judgment Lady Poole said that if the court did not exercise its power to find contempt, "there is a risk... it might be seen as condoning the breach by a public authority of a deadline fixed by the Commissioner exercising statutory functions in compliance with the requirements of FOISA.

"That would send out the wrong signal to others tempted to do the same, diminish respect for decisions of the Commissioner, undermine the authority of the Commissioner, and subvert the rule of law."

And she added: "The Scottish Ministers did not put before the court any particular steps being taken to rectify matters and avoid future repetition.

"Nor did they tender any apology to the Commissioner before the court, or admit a contempt.

"In submissions, it appeared to the court that there was little contrition on the part of the Scottish Ministers. The tenor of the affidavit produced and submissions tended more towards indignation that the Commissioner had exercised his statutory powers in respect of the Scottish Ministers – even though it is the Commissioner’s role to promote the observance of FOISA by Scottish public authorities.

"As the Dean of Faculty put it, it is not helpful to pour petrol on flames, rather than oil on troubled waters."

The case stems from the scandal which engulfed Alex Salmond – who died in 2024 – after he was accused of sexual harassment by two civil servants in 2018., A judicial review at the time found the government's investigation into the allegations had been “tainted by apparent bias” and he was awarded more than £500,000 in damages.

He later went on to face a catalogue of criminal charges of various sexual offences - but in March 2020 was cleared of them all.

A Holyrood inquiry was then launched into the Scottish Government's handling into the sexual harassment allegations, and it was as a result of Nicola Sturgeon's evidence to the committee, that James Hamilton was asked to investigate if she'd breached the ministerial code.

A series of Freedom of Information requests have since been 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 the Scottish Information Commissioner.

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”.

First Minister John Swinney had previously 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.

David Hamilton welcomed the decision and said: “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.”

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.”

And 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.”

Scottish Lib Dem MSP Willie Rennie said the judgement was a “scathing takedown of arrogant ministers”. “We desperately need to rebuild trust in politics but this behaviour only makes things worse,” he added.

A Scottish Government spokesperson said: “The material required to be released under the Information Commissioner’s Decision Notice was published on February 24.

“As Scottish ministers set out to Parliament, they have to balance their obligations under Freedom of Information legislation and the need to avoid identification of alleged victims in cases of sexual assault.

“We acknowledge and respect the ruling in this case and will consider it in detail.”