The Court of Session has found that the Scottish Ministers' failure to disclose information ordered by the Scottish Information Commissioner amounted to a contempt of court, the first time in more than two decades of FOI in Scotland that enforcement powers of this kind have been exercised.
The ruling, delivered by Lady Poole in the Outer House on 3 June 2026, follows a petition brought by Scottish Information Commissioner David Hamilton under section 53 of the Freedom of Information (Scotland) Act 2002 (FOISA). The Scottish Ministers are admonished for failing to comply with the steps set out in the decision notice within the required time period, and are ordered to pay the Commissioner's expenses on an agent-client, client paying basis.
The case has its origins in a request made by Benjamin Harrop on 27 October 2024 to the Scottish Ministers for communications and information relating to the James Hamilton Report and associated published legal advice. The Report, published in March 2021, concerned an independent investigation into whether then-First Minister Nicola Sturgeon had breached the Scottish Ministerial Code in respect of meetings and discussions with her predecessor Alex Salmond, and found that no breach had occurred.
The Scottish Ministers disclosed some information in response to the request but withheld other material, relying on various exemptions under FOISA. Mr Harrop applied to the Commissioner under section 47 FOISA. On 1 December 2025, the Commissioner issued Decision Notice 281/2025, finding that the Scottish Ministers had wrongly relied on the exemption in section 30(c) of FOISA to withhold part of the requested information, and had also failed to satisfy him that they were entitled to rely on section 12(1) to refuse another part of the request. The Commissioner required the Scottish Ministers to disclose the withheld information and issue a revised review outcome to Mr Harrop by 15 January 2026.
The Scottish Ministers did not disclose the withheld information by the deadline, and did not contact the Commissioner before the deadline expired to request an extension.
On 15 January 2026, a Deputy Director wrote to the Commissioner on behalf of the Scottish Government, stating that compliance was not possible by the deadline and that the task would be completed "as soon as possible". The letter did not request any particular extended date for compliance.
The Commissioner responded the following day, noting that the Scottish Ministers had given only five minutes' notice of their failure to meet the deadline - six weeks after the decision notice was issued - and described the Scottish Government's pattern of last-minute communication on cases relating to the Hamilton Inquiry as reflecting "poorly on the Scottish Government". He required compliance by 22 January 2026, warning that failure to meet that date would result in referral to the Court of Session.
That deadline was also missed. A letter of 22 January from the Scottish Ministers' Director of Communications and Ministerial Support advised only that the First Minister had made clear the Scottish Government would comply "as soon as practicably possible". Again, no specific compliance date was offered.
The Commissioner brought his petition to the Court of Session on 2 February 2026. The withheld information was not disclosed to Mr Harrop until 24 February 2026, six weeks after the original deadline, by which time proceedings were already under way.
Lady Poole found that the circumstances merited full inquiry by the court and, having conducted that inquiry, concluded that the Scottish Ministers had been in contempt of the Commissioner.
The court found that the Scottish Ministers had made a deliberate choice not to commence the physical work of reviewing and redacting documents within scope until after the Christmas break, despite the Notice having been issued on 1 December 2025. A submission containing advice recommending an appeal of the Notice was put to Ministers on 15 December 2025, and that advice was rejected only after views of counsel were received on 23 December, leaving the actual document review process to begin in earnest only in January 2026.
The court rejected the Scottish Ministers' argument that their behaviour had not been wilful, finding instead that deliberately failing to comply with a step required in a Commissioner's decision notice by the time limit set in that notice implied a lack of respect for the notice and hence for the authority of the Commissioner. The court applied the approach to contempt set out in the full court decision in Murray v HM Advocate 2022 JC 181, under which it is sufficient for a finding of contempt that a person deliberately does something that in fact breaches an order, even without an intention to be contemptuous.
The court was particularly critical of the terms of the Scottish Ministers' correspondence of 15 and 22 January. Lady Poole found that the letters showed a lack of proper respect for the Commissioner's statutory role, and that by maintaining compliance would occur "as soon as possible" or "as soon as practicably possible", the Scottish Ministers had inappropriately annexed to themselves the decision about when they would comply, a decision that, under the statutory scheme, belonged to the Commissioner.
The court noted that the matter was "all the more reprehensible because the Scottish Ministers have a role in making the law, and must be assumed to understand the importance of the rule of law."
On sanction, the court balanced later compliance, the added complexity arising from court orders protecting the identities of complainers in proceedings related to Alex Salmond, and the volume of documentation to be reviewed, against the absence of any apology tendered to the Commissioner before the court, the absence of any admission of contempt, and what the court characterised as a tenor of "indignation" in the Scottish Ministers' submissions rather than contrition, as if aggrieved that the Commissioner had exercised his statutory powers at all.
The court found admonishment, together with an indemnity expenses award, to be the appropriate sanction. It warned that failing to exercise its powers in such circumstances risked condoning the breach of a statutory deadline and would "send out the wrong signal to others tempted to do the same", diminishing respect for the Commissioner's decisions and subverting the rule of law.
Commenting on the ruling, Commissioner David Hamilton said: "This was the first time in more than 20 years of FOI that a Commissioner has had to refer non-compliance with one of their decisions to the court. It was not a step taken lightly, and was all the more disappointing given that Scottish Ministers have a role in making the law and an assumed respect for the rule of law.
"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 Hamilton Inquiry."
The case is the first ever petition brought by the Scottish Information Commissioner under section 53 FOISA in the more than 20 years since the Act came into force, and provides significant new guidance on how the enforcement provision will operate in practice. The judgment suggests that public authorities cannot simply set their own timescales for compliance with Commissioner decision notices, and that neither complexity nor resource pressures will excuse a failure to request a formal extension before a deadline expires.
The full judgment, Petition of the Scottish Information Commissioner against the Scottish Ministers* [2026] CSOH 50, is available on the Scottish Courts website here: https://www.scotcourts.gov.uk/media/e4eiei0z/2026csoh50-petition-of-the-scottish-information-commissioner-against-the-scottish-ministers.pdf.
