Scottish Information Commissioner erred in Salmond files' disclosure order

The Scottish Information Commissioner erred in law by ordering Scottish Government ministers to disclose exempted material concerning the Hamilton Inquiry, Scotland's Court of Session has ruled.

The decision overturns an order by Information Commissioner David Hamilton requiring the release of evidence gathered during an investigation into whether former First Minister Nicola Sturgeon breached the ministerial code during the parliamentary inquiry regarding her predecessor, Alex Salmond. Ministers appealed the disclosure order, arguing that releasing the material under the Freedom of Information Scotland Act 2002 (FOISA) risked identifying complainers from Salmond’s subsequent criminal trial, thereby breaching protective court orders and risking contempt of court.

A panel of three Court of Session judges upheld the ministerial appeal, rejecting the Commissioner's argument that disclosures were permissible because assumptions regarding identities could neither be confirmed nor refuted. The court determined that definitive proof of identity is not required to establish a violation; creating a real or substantial risk of identification within a complainer's community breaches court orders designed to protect personal privacy, dignity, and safety.

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