Information Commissioner ‘erred in law’ with Salmond files order, court rules

The Scottish Information Commissioner “erred in law” when he ordered ministers to disclose exempted material relating to the so-called Salmond files, a court has ruled.

Information Commissioner David Hamilton had ordered Scottish Government ministers to release information relating to the Hamilton Inquiry – a probe launched by then first minister Nicola Sturgeon into whether she had breached the ministerial code in relation to the Holyrood inquiry into her predecessor Alex Salmond.

Ministers appealed against this in the courts, saying disclosure of the material 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.

Mr Salmond – who died in 2024 – had been accused of sexual harassment by two civil servants, but the investigation into the allegations had been “tainted by apparent bias” according to a judge, who awarded him more than £500,000 in legal costs.

The dispute between ministers and the Information Commissioner stemmed from freedom of information requests for evidence used during the Hamilton Inquiry.

Lawyers for the Information Commissioner had argued that while the material could “permit assumptions” regarding the identify of complainants, it would not allow for “confirmation or refutation of such assumptions”.

However this was rejected by a panel of three judges at the Court of Session, who upheld the ministers’ appeal.

In a written ruling issued on Friday afternoon, they said it is “sufficient for a breach of the orders if disclosure of the information would produce a real or substantial risk of identification”.

The judgement read: “If, as the commissioner accepted, there would be a risk of assumptions being made about the complainers’ identities due to release of the information, this would serve to heighten the danger of their being identified.

The Hamilton Inquiry was ordered by Nicola Sturgeon when she was first minister of Scotland (PA)

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“The orders would thereby be breached.

“It is not a prerequisite of their being breached that assumptions should be capable of being confirmed as the commissioner reasoned.

“That approach carries with it a flavour of certainty or definitiveness which is not essential for there to be a breach.

“It is sufficient if disclosure of the information would create a real risk of identification of the complainers in the communities in which they lived or worked.”

The judgment also addressed the question of whether the release of the information would amount to a contempt of court.

“It is crucial to bear clearly in mind that the fundamental purpose of the orders was to protect the complainers’ dignity and privacy and to protect their safety,” it read.

“Permitting assumptions to be made about their identities is inconsistent with the objective of the orders and amounts to a material misdirection in law.”

It concluded: “For these reasons, we are satisfied that the commissioner erred in law in ordering disclosure of the withheld information.”

In a statement, the Scottish Information Commissioner said he “welcomed” the clarity offered by the court opinion.

He also echoed the court’s “surprise” that in their dealings with the commissioner ministers had made no reference to a 2022 case involving Craig Murray, which was central to the court’s judgment.

Murray had published a series of articles on his website and a social media post which were found to have contained information liable to identify four of the complainers who testified at Mr Salmond’s trial.

He was held to be in contempt of court and was sentenced to eight months’ imprisonment, and later failed to have the verdict overturned on appeal.

The statement read: “The commissioner will now carefully consider the court’s opinion but welcomes the clarification offered by the court in relation to the purpose, meaning and effect of the court orders referenced.

“The commissioner agrees with the court that it was ‘surprising and unfortunate’ that during the lengthy investigation undertaken by the commissioner the Scottish ministers made no reference to, nor did they at any stage seek to rely upon, the case of Murray, which is central to the court’s judgment.

“Consequently, although a thorough assessment of risk had been considered by the commissioner to prevent over-redaction by the Scottish ministers, this was not explicitly carried out within the framework of Murray.

“These decisions are now remitted back to the commissioner for his reconsideration.”

A Scottish Government spokesperson said: “The Scottish Government welcomes the decision of the court and will continue to uphold the court orders to protect the identities of women in cases of alleged sexual crimes.”