Salmond files legal battle puts Scottish information watchdog’s powers in spotlight

Legal papers lodged ahead of a hearing in the Inner House of the Court of Session on September 22 set out competing arguments over the commissioner’s powers to order the disclosure of information withheld by ministers, The Herald reports.

The dispute follows FOI requests for material submitted to an investigation by James Hamilton, the former Irish director of public prosecutions, into Nicola Sturgeon’s involvement in the handling of complaints against the late Mr Salmond.

Mr Hamilton cleared Sturgeon of breaching the ministerial code, although he criticised aspects of Mr Salmond’s conduct and some redactions made to his report.

The Scottish government withheld some material under Section 26(c) of the Freedom of Information (Scotland) Act 2002, which applies where disclosure would “constitute, or be punishable as, a contempt of court”.

Ministers argue that releasing the information could create a “realistic prospect” of identifying women who accused Mr Salmond of harassment. Mr Salmond was cleared at the High Court in Edinburgh of 13 sexual assault charges involving nine women, while an order remains in force preventing publication of information that could identify the complainers.

The government argues that it is for the courts, rather than the commissioner, to determine whether disclosure would breach that order.

However, the commissioner accepted that some passages required redaction but concluded, after examining the documents and information already publicly available, that the remaining material could be released without identifying any complainers.

The government’s lawyers, Paul Reid KC and David Welsh, argue that the commissioner misunderstood his role.

“The scheme of FOISA is not, as the SIC seems to suggest, one in which the SIC is somehow empowered to determine whether something is or is not contemptuous,” they state.

“That is not his role and is to misunderstand the statutory scheme within which he operates.”

Counsel for the commissioner, Roddy Dunlop KC, says the government’s position would effectively make ministers the primary decision-makers on whether the exemption applies.

“The Appellants’ approach would effectively make the Appellants the primary decision-maker under section 26(c), with the Respondent relegated to a supervisory role capable of intervening only where the Appellant lacked any reasonable basis for its position.

“That is to subvert the statutory scheme,” he argues.

Mr Dunlop says Parliament intended the commissioner to be the independent decision-maker on whether FOI exemptions had been properly applied.

He also rejects the government’s argument that ministers could face contempt proceedings for complying with a disclosure order, arguing that FOISA was designed to prevent such a conflict.

The case also involves the question of “jigsaw identification”, with ministers relying on the 2022 conviction of former diplomat Craig Murray over material he published about Mr Salmond’s trial.

The commissioner maintains that whether disclosure creates a risk of identification is a matter of “fact and degree” and says he considered both the withheld documents and information already in the public domain.

The case is due to be heard on September 22.