The Scottish Government could be held in contempt of court over its failure to respond in a long-running freedom of information battle after the Information Commissioner kicked off legal proceedings.
For the first time in the history of the post, David Hamilton announced on Friday he had instructed solicitors to begin proceedings against the Government at the Court of Session.
The commissioner had previously given the Government until January 15 to respond to release documents relating to the probe by James Hamilton KC into potential breaches of the ministerial code by former first minister Nicola Sturgeon during the investigation into her predecessor Alex Salmond.
A subsequent deadline was set for Thursday, with Mr Hamilton threatening legal action if the documents were not published, but the deadline was again missed by ministers.
First Minister John Swinney has told MSPs the documents will be published, but work is required to ensure the names of complainers in Mr Salmond’s criminal case are not included, given they have lifelong anonymity.
Breaching the anonymity order could be viewed as contempt of court.
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.
— Scottish Information Commissioner (@FOIScotland) January 23, 2026
Read the statement: https://t.co/pXDFl4kuu3 pic.twitter.com/AZgYOBm8V3
In a statement, the commissioner said: “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.”
The Scottish Government has been contacted for comment.
Mr Swinney was asked about the situation during First Minister’s Questions on Thursday, and he pledged the information will be published.
“The Scottish Government will comply with the commissioner’s decision and will do so as soon as practically possible,” he said.
“I do not expect this will take much longer.
“The courts have made it clear the identities of those who complained in relation to allegations of sexual assault must have their identities protected and there are no circumstances in which I will do anything that risks breaking those court orders.
“I can’t release information which will breach those court orders and amount to a contempt of court.”
Mr Hamilton was appointed to investigate Ms Sturgeon’s conduct in relation to the investigation of allegations of abuse by two civil servants against Mr Salmond.
Ms Sturgeon was found to have breached the ministerial code unknowingly and remained in the top job.
The Government has been resistant in recent years to release documents relating to the inquiry under freedom of information legislation, appealing an earlier decision by the Information Commissioner to the Court of Session on another tranche of documents.
Scottish Labour deputy leader Dame Jackie Baillie said the “arrogant” Scottish Government “thinks it is above the law”.
She added: “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 Tory MSP Murdo Fraser said the Government had “shamefully” refused to comply with the law.
“They are clearly more interested in protecting their own reputation and squandering taxpayers’ money rather than doing the right thing,” he said.
“Now that their sleekit behaviour is resulting in yet more legal action being taken against them, SNP ministers must finally confirm when these documents will be published.”
