Inner House quashes FOI decisions over risk of identifying Salmond complainers

About this case:

• Citation:
  [2026] CSIH 46
• Judgment:
  External link
• Court:
  Court of Session Inner House
• Judge:
  Lord Pentland

The First Division held that section 26(c) of the Freedom of Information (Scotland) Act 2002 exempts information where disclosure would constitute, or be punishable as, contempt of court, and that existing anonymity orders are breached where disclosure creates a “real or substantial risk” of identification. It was not necessary that released information should definitively confirm or refute assumptions about a complainer’s identity.

Reid KC and D Welsh, instructed by the Scottish Government Legal Directorate, appeared for the Scottish ministers. Dean of Faculty, Roddy Dunlop KC, instructed by Anderson Strathern LLP, appeared for the Scottish Information Commissioner. The opinion of the court was delivered by the Lord President, Lord Pentland, sitting with Lord Malcolm and Lady Wise.

The appeals concerned two freedom of information requests for evidence submitted to the investigation by James Hamilton into whether Nicola Sturgeon had breached the Scottish Ministerial Code in connection with meetings involving Mr Salmond. The commissioner had ordered disclosure of some information which the ministers maintained was protected by court orders designed to prevent identification of complainers in proceedings concerning allegations of sexual misconduct by Mr Salmond.

Anonymity orders and jigsaw identification

The court traced the history of the various anonymity protections. In October 2018, Lord Woolman prohibited publication of the names, designations and other information which would lead to identification of two complainers involved in Mr Salmond’s judicial review proceedings against the Scottish government. When the judicial review was resolved in January 2019, the ministers also gave an undertaking to the court not to publish or disseminate the investigating officer’s report or associated material except in specified circumstances.

Following Mr Salmond’s subsequent prosecution, the Lord Justice Clerk, Lady Dorrian, made an order prohibiting publication of the names and identity of complainers and information likely to disclose their identities. That order was later varied but remained in force. The court noted that the danger was not limited to direct identification. Information which appeared innocuous when viewed in isolation could become identifying when combined with material already in the public domain, a process described as “jigsaw identification”. It referred to Murray v HM Advocate, in which publication of information sufficient to enable those in governmental and political circles to identify complainers was held capable of constituting contempt, even if the public as a whole could not necessarily identify them. 

The first FOI request was made in April 2021 and sought all written evidence provided to Mr Hamilton’s investigation. The ministers initially maintained that they did not hold the information, but the commissioner rejected that position and an appeal by the ministers was dismissed by the Inner House in 2023. After reconsidering the request, the ministers relied on several exemptions, including section 26(c), which provides an absolute exemption where disclosure would constitute, or be punishable as, contempt of court. The commissioner accepted that some of the withheld information fell within the exemption but ordered disclosure of other material. He acknowledged that release could permit assumptions to be made about the identity of one or more complainers but was not satisfied that it would allow those assumptions to be confirmed or refuted.

A second request, made in December 2023 for all evidence submitted to the Hamilton inquiry, resulted in substantially the same reasoning and another order for disclosure.

Commissioner entitled to make independent decision

The ministers appealed on two grounds. They first argued that the commissioner had misunderstood his role. Their position was that, where there was a real possibility of jigsaw identification, the commissioner should not himself determine whether disclosure would constitute contempt but should ask whether the ministers had a proper basis for invoking the exemption.

The Inner House rejected that part of the ministers’ argument. The court held that the statutory scheme requires the commissioner to reach his own independent view on whether a public authority has complied with FOISA. Lord Pentland said there was nothing in the 2002 Act requiring the commissioner to defer to the authority’s view. His role was not analogous to that of a court reviewing an administrative decision on conventional judicial review grounds.

The commissioner was responsible for deciding whether requested information had to be released or could properly be withheld and had to reach that decision through his own application of the statutory scheme. The court therefore held that the commissioner had correctly understood his statutory function when he considered whether disclosure would amount to contempt.

However, that did not resolve the appeals. The commissioner still had to apply the correct legal test when interpreting the scope and effect of the anonymity orders.

Threshold for contempt set too high

The Inner House held that the commissioner had erred on that question. Although the ministers had not relied before him on the decision in Murray, the court considered that it would be “unconscionable” to ignore authoritative guidance from that case because jigsaw identification was plainly at the centre of the dispute. In Murray, the court had explained that where material is deliberately published, the relevant question is whether it creates a real or substantial risk that complainers will be identified. The protection is not confined to identification by the public at large. It is sufficient if disclosure creates a real risk of identification within a section of the public, including the community in which a complainer lives or works.

The Inner House said that the commissioner’s reasoning failed to reflect that test. He had accepted that disclosure would permit assumptions to be made about the identities of one or more complainers but nevertheless required something further: the ability to confirm or refute those assumptions. That imposed too high a threshold. The court said there was “no element of probability involved” beyond the requirement for a real or substantial risk of identification. It was unnecessary for the information to provide certainty or definitively confirm an existing assumption. Lord Pentland added that the fundamental purpose of the court orders was to protect the complainers’ dignity, privacy and safety.

Allowing information to be released which materially increased the possibility of assumptions being made about their identities was inconsistent with that purpose. The commissioner had therefore materially misdirected himself in law. The court allowed both appeals and quashed the commissioner’s decisions insofar as they required disclosure of information withheld under section 26(c).

The matters were remitted to the commissioner for reconsideration in light of the Inner House’s opinion and the judgment in Murray, with the court observing that further submissions would likely be required on how that authority applied to the particular information at issue. The court did not determine a separate dispute concerning the meaning of the words “otherwise than under this Act” in section 26, holding that it was unnecessary to resolve that issue for the purposes of the appeals.

All questions of expenses were reserved.