Scottish ministers admonished for failure to comply with FOI decision notice in request for Hamilton report material

About this case:

• Citation:
  [2026] CSOH 50
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lady Poole

In the first petition brought by the commissioner under section 53 of the Freedom of Information (Scotland) Act 2002, it was argued that the court should inquire further into the matter and deal with the petitioner as if they had committed a contempt of court. The respondent argued that it was irrational for the commissioner to certify the case to the Court of Session and asked for the petition to be dismissed.

The petition was considered by Lady Poole, with the Dean of Faculty, Roddy Dunlop KC, appearing for the petitioner and Reid KC and Welsh, advocate, for the respondent.

No extension request

On 27 October 2024, a FOI request was made to the Scottish ministers for communications and information relating to a 2021 report which found that Nicola Sturgeon had not breached the Scottish Ministerial Code in respect of meetings and discussions with her predecessor as first minister, Alex Salmond, and associated legal advice. After the respondent provided some of the requested information but excluded other information relying on exemptions in FOISA, the requester made an application to the commissioner under section 47 FOISA, seeking to recover more of the information falling within his request.

On 1 December 2025, the petitioner issued a decision notice requiring the respondent to disclose the withheld information and provide a revised review outcome by 15 January 2026. However, no physical work was undertaken by the respondent to redact any of the documents until after the Christmas break in 2026, following a period where advice recommending an appeal against the notice was considered but ultimately rejected. No request was made for an extension to the deadline, with a representative of the respondent instead writing to the commissioner on 15 January to state that a revised review outcome would not be available by that date.

The commissioner responded to this message on 16 January to note their disappointment that notice was only given of the need for additional work five minutes before the statutory deadline, and to provide a revised deadline of 22 January. A letter on behalf of the respondent was again sent to the commissioner on that date to state that compliance would be “as soon as practically possible.” The petition was lodged with the court on 2 February 2026, and the withheld information was disclosed on 24 February.

Relying on dicta in Murray v HM Advocate (2022), the commissioner submitted that the behaviour of the Scottish ministers met the standard for a finding of contempt, having deliberately defied the decision notice. The Scottish ministers submitted that their failures had not been wilful nor shown lack of respect or disregard. The delay in compliance was not intended to be offensive to the dignity of the commissioner but rather showed respect for the dignity and authority of the courts because delays were due to try to comply with court orders preventing jigsaw identification of complainers in the trial of Alex Salmond for sexual offences.

Petrol on flames

In her decision, Lady Poole found that it was appropriate for the court to make further inquiry, saying: “The Scottish ministers accept that they did not comply with the time limits set by the Commissioner in the Notice. They did not take the steps to comply with FOISA timeously. The Notice specified a deadline of 15 January 2026, but the withheld information was not disclosed until 24 February 2026. There is no dispute about the terms of the correspondence between the Scottish ministers and the Commissioner, from which it is evident that the Scottish ministers had not requested any specific time period of extension. There was no compliance, and no date for compliance, by the time the Commissioner brought this petition on 2 February 2026.”

She added: “The court accepts that the need to ensure compliance with court orders aimed at preventing the identity of complainers in criminal and civil proceedings meant there was an added layer of complexity in complying with this particular Notice, and the period for compliance from 1 December 2025 to 15 January 2026 included the Christmas break. But that did not entitle the Scottish ministers to disapply for themselves time limits placed on them in accordance with an Act of the Scottish Parliament.”

Considering the approach to making a finding of contempt, Lady Poole said: “Murray makes it clear that it is sufficient for a finding of contempt that a person deliberately did something that in fact breached an order, even if not intended to be contemptuous. The deliberate conduct constitutes the wilful defiance of the court. Murray is a decision made by a full court of five judges and what is said in it commands considerable respect. The rationale underlying this approach is that orders should be complied with, if not appealed or reduced, even if burdensome, inconvenient and expensive.”

She concluded: “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 such as the Scottish ministers, and section 53 FOISA is a legitimate enforcement mechanism for section 49 decision notices. As the Dean of Faculty put it, it is not helpful to pour petrol on flames, rather than oil on troubled waters.”

Having balanced the considerations relevant to sanction, the court found that the appropriate response to the failure of the Scottish ministers was admonition, together with an adverse award of expenses on an indemnity basis.