Court rules that failure to comply with FOI decision timescale was contempt of court
The Court of Session has issued a ruling which finds that the Scottish Ministers’ failure to comply with the compliance timescale set out in a December FOI Decision amounted to a contempt of court.
The Decision – Decision 281/2025 – concerned a request for communications and information relating to the James Hamilton Report and published legal advice.
In the Decision, the Commissioner found that the Scottish Government had not been entitled to withhold some of the requested information, and required disclosure. Compliance with the Decision was required by 15 January 2026.
Following a failure to comply, the Commissioner issued a warning letter on 16 January, requiring that the Scottish Government comply by 22 January or the matter would be referred to the Court of Session. When this deadline was not complied with, the Commissioner referred the matter to the Court.
David Hamilton, Scottish Information Commissioner.
Commenting on the case, Scottish Information Commissioner David Hamilton said: “I welcome today’s ruling from the Court of Session that the Scottish Ministers’ failure to comply with the timescales set out in my FOI decision amounted to a contempt of court.
“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.
“If Scotland’s FOI rights are to remain robust, effective and valued, the timescales for both the provision of information and compliance with my rulings must be respected by every public authority.
“People make FOI requests when the information they seek is important to them, and any inappropriate delay is a direct denial of their rights. We must work to ensure that this does not happen again.”
Scottish Information Commissioner, David Hamilton, has received a reply to his letter of 2 February 2026 in which he sought assurances from the Scottish Government’s Permanent Secretary that Ministers had complied with his Decision 193/2024.
That Decision required Scottish Ministers to release all legal advice given to the Scottish Government in relation to the Commissioner’s earlier decision on whether they held Hamilton Inquiry evidence.
The Commissioner was advised by the Scottish Government that it had complied, however the Scottish Government refused the Commissioner access to the withheld information he needed to see in order to check this by relying on a little-used provision in FOI law. Therefore, at the time, the Commissioner had to take Ministers at their word that compliance had been achieved.
During a related court case in January 2026, the Commissioner became alert to the prospect that some of that legal advice had not been released and sought reassurance.
A response has finally been received which the Commissioner considers demonstrates that the Scottish Government has failed to comply with his 2024 Decision.
He is now consulting with lawyers on certifying this non-compliance to the Court of Session, allowing the court to inquire into a second case of contempt of court.
David Hamilton, Scottish Information Commissioner.
The Commissioner said: ““Perhaps worse than the fact that Scottish Ministers have once again failed to comply with one of my Decisions, is that they appear to have tried to conceal this breach of trust with unjustified delays and a wall of silence. The excuses I have now been given, both in writing and in person, are preposterous and unacceptable.
“I have now met with the Permanent Secretary and have expressed my dismay. I can no longer trust the Government to handle this information unsupervised and will explore more intrusive options to ensure compliance.
“The Government’s FOI handling of the Hamilton Inquiry cases stands in stark contrast to the way nearly every other case of theirs is handled.
Following my meeting with the Permanent Secretary, I now need to assess whether I can resource a further intervention to examine the unusual case handling practices in these cases.”
The Commissioner has initiated legal proceedings following the Scottish Government’s failure to comply with the timescales set out in a recent decision relating to the James Hamilton report:
Statement on Scottish Government compliance with Decision 281/2025:
The Scottish Information Commissioner has instructed his solicitors to bring legal proceedings against the Scottish Government in the Court of Session.
This follows a failure by the Scottish Government to provide evidence of compliance with a December 2025 decision requiring the Scottish Government to disclose some information relating to the James Hamilton Report into the conduct of former First Minister Nicola Sturgeon, and associated legal advice.
Following the Scottish Government’s failure to comply with an initial deadline of 15 January 2026, the Commissioner wrote to Ministers on the 16 January to warn of legal action if the Scottish Government failed to comply by 22 January 2026.
The Commissioner’s decision in this case requires the disclosure of some of the requested information, while also requiring the Scottish Government to issue a new response in relation to other information, which had been incorrectly withheld on cost grounds.
The Commissioner notes that the full and timely compliance with his Decision Notices is a key element ensuring the effective operation of FOI in Scotland. He will not hesitate in exercising his power to refer non-compliance to the Court of Session in circumstances where an authority fails to comply.
He has, therefore, instructed his solicitors to take the next steps in the certification process to the Court. This is the first time that the Commissioner has made such a report to the Court on non-compliance.
Once certified, the Court may then investigate the matter, and may treat a failure to comply as contempt of court.
SCOTTISH GOVERNMENT MUST HAND OVER STURGEON INFORMATION
Scottish Information Commissioner David Hamilton has issued a decision which requires the Scottish Government to disclose some of the written evidence supplied to James Hamilton as part of his investigation into whether former First Minister Nicola Sturgeon had breached the Ministerial Code.
Previously, the Scottish Government had claimed that it didn’t hold the requested information but, in December 2023, the Court of Session agreed with the Commissioner that the information was in fact held, and that the Scottish Government should therefore issue a response.
The decision comes after the requester appealed the Scottish Government’s subsequent response to the Commissioner, on the basis that much of the information was exempted from disclosure.
In his decision, the Commissioner finds that, while some information was appropriately withheld, other information should be disclosed to the requester.
In particular, the Commissioner finds that the Scottish Government had incorrectly applied the exemption which protects information where disclosure would harm the effective conduct of public affairs to all the withheld information, finding that disclosure would not substantially harm the Scottish Government’s ability to carry out future investigations of this type.
The Commissioner also meticulously reviewed the redactions applied by Scottish Government to information which was withheld to avoid breaching court orders. Following this, he instructed the release of further material.
Similarly, The Commissioner found that, while some information had been appropriately withheld because it related to confidential legal communications, other information where this exemption had been applied should be disclosed.
In some cases, this was because it did not meet the standard required for the exemption to apply while, in others, he found that, while the exemption could be appropriately applied, the public interest nevertheless favoured the disclosure of the information. Under freedom of information (FOI) law, many exemptions must be set aside if the disclosure of the information is in the public interest.
The Commissioner also identified significant procedural concerns in the Scottish Government’s handling of this case.
He found, for example, that the Scottish Government had failed to provide all of the information falling within the scope of an Information Notice served on the authority in March 2024 to enable the Commissioner to investigate the case.
Under FOI law the Commissioner can issue legally enforceable Information Notices to secure the provision of information needed to investigate FOI appeals.
During his investigation, the Commissioner subsequently found that there was additional material falling within the scope of the Information Notice which had not, initially, been supplied to his office.
While the Commissioner’s decision finds that this failure to fully comply with the Information Notice was a matter of significant concern, he also accepts that the omission was a genuine oversight, as opposed to an attempt to deliberately obstruct his investigation. As a result, he took the decision in this case not to refer this failure to the Court of Session.
The Commissioner’s decision also raises concerns with the Scottish Government’s interpretation of the request, the changing of its position during his investigation, and its failure to make a full and appropriate case for the application of exemptions to all of the information it proposed to withhold.
Commenting on this case, Scottish Information Commissioner David Hamilton said: “This was a very complex case, and that complexity was compounded by the way in which elements of this case were handled by the Scottish Government.
“When a public body seeks to withhold information under FOI law, it is the responsibility of that body to appropriately make their case to me. It is not for my staff to identify sensitive information on behalf of an organisation, or to make the case for an exemption on its behalf. Authorities must, therefore, ensure that its case is fully and appropriately stated in its entirety.
“It is also particularly disappointing that, had it not been for the diligence of my staff and their forensic analysis of this case, many of the failures that arose may have gone undetected.
“While there is no evidence of impropriety, this nevertheless reflects poorly on the Scottish Government handling of this case, and I trust it will take urgent action to prevent such occurrences happening again.”
The Commissioner’s decision requires the Scottish Government to disclose some information which had been wrongly withheld, and issue a revised response in relation to a small amount of other information, by12 January 2026.
