In a legal first, The Scottish Information Commissioner, David Hamilton, has instructed his solicitors to initiate court proceedings against The Scottish Government in the Court of Session.
Mr Hamilton says that this action is necessary due to a failure by The Scottish Government to provide evidence of compliance with a December 2025 decision requiring the government to disclose some information relating to the James Hamilton Report into the conduct of former First Minister, Nicola Sturgeon, and associated legal advice.
The Scottish Government has not complied with an initial deadline of 15 January 2026.
The Commissioner then wrote to Ministers on the 16 January to warn of legal action if the Scottish Government failed to comply by 22 January 2026.
Mr Hamilton says that his decision in this case requires some of the requested information to be disclosed, He also requires the government to issue a new response in relation to other information, which had been incorrectly withheld on cost grounds.
He said that the “full and timely compliance with his Decision Notices is a key element ensuring the effective operation of FOI in Scotland”. Additionally, Mr Hamilton said 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.
CLARIFICATION
Mr Hamilton clarified his position on X on Friday lunchtime. He said: “To be clear I’m asking the Scottish Government to comply with the law not break the law, If having reviewed the documents they haven’t looked at yet and they think there is a jigsaw identification issue, they have the opportunity to make that case. That would be compliance.
“Such a position could of course be appealed to me and would be considered fairly and thoughtfully. My non compliance action then is about taking 7 weeks to assess some files – and still we don’t have an intended completion date. FOI laws must be respected.”
Scottish Labour Deputy Leader Jackie Baillie said “This unprecedented action shows John Swinney and the SNP are taking their culture of secrecy and cover-up to new levels.
“This arrogant SNP government thinks it is above the law. Not only are John Swinney and the SNP riding roughshod over transparency laws in order to protect their own reputations, but they are forcing taxpayers to pick up the bill. “It is clearer than ever that there is a rotten culture of secrecy and cover-up at the heart of this SNP government. Scottish Labour will follow the law, release the documents and put an end to the SNP’s Secret Scotland.”
