Scottish government wins Salmond files case as court rules Information Commissioner ‘erred in law’

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 damages.

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”. READ MORE: Exclusive:'There's no limit to what John Swinney and I can achieve together', says Andy Burnham 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 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.”

Get our revamped Steamie newsletter It concluded: “For these reasons, we are satisfied that the commissioner erred in law in ordering disclosure of the withheld information.” The Scottish Information Commissioner and Scottish Government have been approached for comment.