Scottish government found in contempt over Salmond files

The Scottish government has been found in contempt by the Court of Session for deliberately delaying the publication of the so-called Salmond files.

The court ruled that the government failed to start work on redacting the documents until after Christmas, despite being told to do so on 1 December last year.

The documents, which had been at the centre of a long-running legal battle over a freedom of information (FOI) disclosure, were eventually published in February.

The court admonished the government and ordered it to pay legal expenses to the information commissioner.

The files relate to the inquiry into whether former first minister Nicola Sturgeon breached the ministerial code over her handling of complaints against her late predecessor, Alex Salmond.

Sturgeon was cleared of breaching the code following an independent inquiry by lawyer James Hamilton in 2021.

The information commissioner, David Hamilton, issued the Scottish government with a warning letter on 16 January, requiring the publication of the documents by 22 January.

The government had been found to have "incorrectly withheld" the information on cost grounds.

When that deadline was missed, Hamilton referred the matter to the Court of Session.

In a written judgement, Lady Poole said the Scottish government "deliberately failed" to carry out the redaction by the information commissioner's set date.

The judge said the government's claim they would comply with the order "as soon as possible" showed a "lack of respect" to the commissioner's role.

She also noted the government had failed to "tender an apology" to the commissioner or admit contempt.

And the judge concluded that no steps had been taken to "rectify matters and avoid future repetition".

Lady Poole's judgement acknowledged the government had offered a "partial explanation" for the delay - including the additional complexities because of court orders that were in place - and the significant amount of documentation that was involved.

It also said the information commissioner might have given a slightly longer period for the government to comply because of the Christmas holidays.

But it said those factors did not explain the long delays before work on redacting the documents began and noted the "significant resources" available to the government.

The ruling said the court not exercising its powers in the case would send out the wrong signal to other public bodies, undermine the authority of the commissioner, and subvert the rule of law.

The amount of expenses due to be paid by the government was not disclosed.

Hamilton said the decision to refer the case to the Court of Session "had not been taken lightly".

He added: "Failing to comply with my decisions undermines the fundamental principles of FOI and damages the information rights of individuals.

"I trust that the Scottish Ministers will now reflect carefully on this ruling and review their broader legal approach to certain aspects of FOI compliance - and particularly those relating to the [James] Hamilton Inquiry."

The Scottish government has been contacted for comment.

The row centres on James Hamilton's probe into the ministerial code breach.

After Sturgeon was cleared, an FOI request was made to the Scottish government for disclosure of all written evidence involved in the investigation.

The government had rejected that request on the grounds Hamilton was an independent advisor on the ministerial code and therefore was not covered by FOI legislation.

However the information commissioner intervened and order the government to reconsider.

The government challenged that decision in the Court of Session, sparking a lengthy series of complex appeals.

Salmond, who died in 2024, successfully sued the government in 2019 over its mishandling of harassment complaints against him.

He was cleared of sexually assaulting nine women in 2020.

In February First minister John Swinney said the request by the commissioner had been complicated by the need to make redactions to avoid identifying women who had made allegations against Salmond.

At the time of his death, Salmond had launched another lawsuit against the government alleging misfeasance - a civil term which covers the wrongful exercise of lawful authority.

Paul McManus, drummer with Glasgow rock band Gun, took over funding the case in February this year after Salmond's estate was placed into sequestration - equivalent to bankruptcy - over costs linked to the court action.