The Court of Session has found that Scottish Ministers deliberately failed to comply on time with an order from the Scottish Information Commissioner over material linked to the James Hamilton inquiry. The ruling raises a wider question for Scotland: whether freedom of information law can function properly when the government that made the law fails to meet its own obligations under it.
Scottish Ministers have been admonished by the Court of Session after failing to comply on time with a freedom of information decision requiring disclosure of material linked to the James Hamilton inquiry into Nicola Sturgeon.
The case concerned communications and information relating to the 2021 Hamilton report and associated published legal advice. The report examined whether the then First Minister had breached the Scottish Ministerial Code in relation to meetings and contact with Alex Salmond. Hamilton concluded in March 2021 that Sturgeon had not breached the code.
The latest ruling does not reopen Hamilton’s conclusion. It concerns something different: whether Scottish Ministers complied with the legal timetable set by Scotland’s freedom of information regulator.
The Scottish Information Commissioner, David Hamilton, issued Decision Notice 281/2025 on 1 December 2025. The decision required Scottish Ministers to disclose certain information and provide a revised review outcome by 15 January 2026. The Court of Session records that documents were eventually released on 24 February 2026, after correspondence between the Commissioner and Scottish Ministers.
The court found that Scottish Ministers deliberately failed to comply with the Commissioner’s notice within the specified time limit. It said detailed work on redacting the documents did not begin until after the Christmas break, despite the decision notice having been issued at the beginning of December.
Scottish Ministers argued that the principal cause of the delay was the need to redact material to avoid the “jigsaw identification” of complainers in the Alex Salmond sexual offences trial and other civil proceedings. That point is not trivial. Court orders protecting the identities of complainers remain in force, and FOI disclosure cannot be allowed to identify people protected by those orders.
The difficulty for Ministers was not that protection work had to be done. It was that the legal deadline had been missed without the correct procedural response. The Court of Session noted that rather than requesting agreed extensions to a deadline imposed under FOISA, Scottish Ministers told the Commissioner they would comply by a time they chose, using phrases such as “as soon as possible” or “as soon as reasonably possible”.
The court was satisfied that the failures amounted to contempt of the Commissioner. It invoked powers available in respect of contempt of court to impose a sanction, admonished Scottish Ministers for their failure to comply, and awarded expenses against them on an agent and client, client paying basis.
This is a serious development for Scottish public administration.
Freedom of information law does not exist as a courtesy system. It is a statutory right. Public authorities are not invited to disclose information when convenient. They are required to comply with the law, including the timetable set by the Commissioner when a decision notice is issued.
The Commissioner had already warned in January that the failure to comply with Decision 281/2025 reflected poorly on Ministers and disrespected the applicant and the wider Scottish public. He said the case concerned a matter of public interest and warned that if the Scottish Government did not comply, he would not hesitate to refer the matter to the Court of Session.
On 23 January, the Commissioner confirmed that he had instructed solicitors to take the next steps in the certification process. He said this was the first time he had made such a report to the court on non compliance. Once certified, the court could investigate the matter and treat failure to comply as contempt of court.
That is the constitutional weight of the ruling. It is not only about one request, one former First Minister, or one politically charged set of files. It is about the enforcement machinery behind Scotland’s transparency law.
The background is long running. In 2021, Benjamin Harrop asked for written evidence gathered by James Hamilton’s investigation into whether Nicola Sturgeon had breached the Ministerial Code. Scottish Ministers originally argued that the information was not held by them, because Hamilton had acted independently. The Scottish Information Commissioner disagreed. The Ministers appealed. In December 2023, the Inner House of the Court of Session refused the appeal and held that Scottish Ministers did hold the information for FOISA purposes.
The court’s 2023 summary said the requested information was held on Scottish Government IT systems and that Ministers or their officials could gain access to it. It also said the issue was not destroyed by Hamilton’s independence. His role was that of an adviser to Scottish Ministers within the Ministerial Code system.
That earlier ruling established the foundation. The material could not be kept outside FOI merely by treating Hamilton’s work as independent. The current contempt ruling concerns the next stage: what happened when the Commissioner ordered further disclosure and set a date for compliance.
The Scottish Government’s own revised response, published in March 2026, said it was providing a copy of most of the information requested, while withholding some material under exemptions including contempt of court, legal professional privilege, and third party personal data. It said section 26(c) of FOISA applied to some information because disclosure might identify complainers subject to a court order under the Contempt of Court Act 1981.
That is the proper boundary in this case. The public interest in disclosure must be pursued without breaching court protections for complainers. The existence of those protections does not remove the obligation to comply with the Commissioner’s decision on time, or to seek a proper extension when compliance cannot be met.
The Commissioner’s Decision 281/2025 was itself mixed. He accepted that some legal advice was properly withheld under legal professional privilege, recognising the strong public interest in public authorities being able to receive full and confidential legal advice. He also accepted that some personal data should be withheld. But he found that Scottish Ministers had failed to comply with FOISA in other respects, including where information had been wrongly withheld and where a cost based refusal had been incorrectly applied.
That distinction should not be lost. This was not a ruling that every document had to be published in full. It was a ruling that the Government had to disclose what the law required, with proper redactions and lawful exemptions where justified.
For Scotland, the case now sits in a wider pattern of public accountability concerns. Freedom of information law is supposed to give citizens, journalists, campaigners and Parliament a route into government records. It is one of the few tools available when power prefers quietness.
When Ministers miss statutory deadlines, contest whether information is held, rely on complex exemptions, and then fail to comply on time with the Commissioner’s order, the damage is not only procedural. It weakens public confidence in whether the Scottish Government accepts the same transparency law that applies to other public bodies.
There is also a sharper institutional point. Scottish Ministers are responsible for government under laws passed by the Scottish Parliament. They are not an ordinary requester confused by a form. They are the centre of devolved administration. When they fail to comply with the freedom of information enforcement process, the example travels through the public sector.
The court has now admonished Ministers. That is not a fine, imprisonment, or dramatic punishment. It is a formal judicial reprimand. In public accountability terms, however, its meaning is plain enough. Scotland’s government was found to have deliberately failed to meet a binding FOI timetable and has been ordered to pay legal expenses.
The question now is whether the lesson is treated as an embarrassment to be managed or a failure to be corrected.
A serious response would require Ministers to review how politically sensitive FOI cases are handled, how redaction work is resourced, how deadlines are escalated, when extensions are sought, and how the rights of requesters are protected when a case carries political risk. It would also require a clearer public commitment that court ordered protections for individuals will be respected without being used as a general shield against timely disclosure.
The Hamilton and Salmond related cases have carried exceptional political and legal sensitivity. That sensitivity does not weaken the case for careful FOI compliance. It strengthens it.
Scotland’s freedom of information system depends on the principle that the law applies not only when disclosure is comfortable, but when it is inconvenient. A government that cannot meet that test leaves the public to wonder what transparency means when the subject is difficult.
The court has given its answer. The Scottish Government now has to give its own.
Freedom of Information (Scotland) Act 2002, legislation.gov.uk
The Times, “SNP ministers found in contempt over delayed Salmond files release”, 3 June 2026
