Legal action begins against SNP government for failing to release 'Salmond files'

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.

In a statement, Mr Hamilton said: “The commissioner notes that the full and timely compliance with his decision notices is a key element ensuring the effective operation of FOI [freedom of information] in Scotland.

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“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 port 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 move comes just a day after First Minister John Swinney criticised Mr Hamilton, saying he “erred in law” by demanding the government release all the documents in the ‘Salmond files’.

Speaking at first minister’s questions on Thursday afternoon, Mr Swinney said the government was complying with the information commissioner’s request.

He said: “The Scottish Government will comply with the commissioner’s decision and do so as soon as practicable. I don’t expect this to take much longer.

“The courts have made it clear that the identities of those who complained in relation to allegations of sexual assault must have their identities protected.

“There are no circumstances in which I will do anything that risks breaking those court orders.

“I cannot release information which breaches these court orders and amounts to a contempt of court.”

He then said: “The government has made clear we believe the information commissioner has erred in law in two of the cases that the government is appealing.”

Opposition politicians accuse Mr Swinney of withholding information to avoid “extreme embarrassment” to the SNP government.

This long-running saga began in March 2021 when Ms Sturgeon was cleared of breaking the ministerial code while giving evidence to a Holyrood inquiry into the handling of harassment allegations against her predecessor Mr Salmond. Ms Sturgeon was accused of misleading MSPs, failing to properly record meetings, attempting to influence the inquiry, and breaching legal obligations.

Following this, a member of the public made a Freedom of Information request to the Scottish Government for all written evidence used in the investigation into Ms Sturgeon.

Earlier this week Scottish Labour leader Anas Sarwar said he would release the ‘Salmond files’ if he wins the Holyrood election in May and becomes First Minister.

Scottish Conservative MSP Murdo Fraser said: “This unprecedented step from the information commissioner comes after the SNP have shamefully and repeatedly refused to comply with his deadlines for releasing these files.

“It sums up John Swinney’s approach to governing which is characterised by an addiction to secrecy and cover-up.

“They are clearly more interested in protecting their own reputation and squandering taxpayers’ money rather than doing the right thing.