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Phil SimBBC Scotland political correspondent
Scotland’s Information Commissioner is taking legal action against the Scottish government after it missed a series of deadlines to produce documents about an ethics investigation into Nicola Sturgeon.
Ministers had been given until Thursday to produce some correspondence relating to the inquiry, which saw the former first minister cleared of breaching the ministerial code over the investigation of her predecessor Alex Salmond.
John Swinney told MSPs that it will “not take much longer” for these papers to be handed over.
But David Hamilton has taken the unprecedented step of instructing solicitors to begin legal proceedings which could see the government held in contempt of court.
The Scottish government has been approached for comment.
The Commissioner’s office is dealing with six different freedom of information appeals relating to the Sturgeon and Salmond inquiries, and Swinney has said almost 90 requests have been received in total.
The government is appealing against two key cases in the Court of Session, including an order to produce some of the evidence considered by independent advisor James Hamilton during his ministerial code probe.
Swinney told MSPs that some of this material could identify complainers in the criminal court case against Salmond – which saw him cleared of sexual assault in 2020 – and this would breach court orders around anonymity for complainers.
Ministers have agreed to produce the papers involved in the current case – involving correspondence with the secretariat working for James Hamilton – but said it was taking time to make necessary redactions.
But Information Commissioner David Hamilton said full and timely compliance with requests was a vital part of the freedom of information system, leading to the unprecedented decision to take legal action.
Scottish Information CommissionerBenjamin Harrop, a member of the public who made the original freedom of information requests, said it was “really quite remarkable” that the matter had resulted in legal action.
He said on social media: “Remember the SG (Scottish government) have had since 1st of December to release a new response to me.
“I am glad the SIC (Scottish Information Commissioner) has initiated these steps, demonstrating that authorities cannot simply disregard legal deadlines without consequences.”
How did we get here?
Almost five years have passed since Nicola Sturgeon was cleared of breaching the ministerial code by independent advisor James Hamilton.
Hamilton himself voiced frustration that his report had to be heavily redacted, stating that it “presents an incomplete and even at times misleading version of what happened”.
But the Irish barrister was bound by court orders preventing any publication which could lead to the “jigsaw identification” of the women who complained about Salmond’s conduct.
The Scottish government says those same rules are why it has lodged two different Court of Session appeals against releasing documents.
John Swinney has been clear that publishing the evidence submitted to Hamilton’s inquiry would identify complainers, and thus amount to a contempt of court.
Ironically, his government is now at risk of being found in contempt over a request they have actually agreed to comply with.
It is taking so long to redact the hundreds of documents involved in this request that two deadlines have been missed – leading to this unprecedented action by the Information Commissioner.
It remains to be seen whether those documents are actually handed over before the court sits to consider this case, and whether that will make any difference to how it is judged.
