In a significant challenge to government secrecy, Scotland's Information Commissioner is preparing to take ministers to court. David Hamilton, the official tasked with upholding freedom of information (FOI) laws, has issued a stark ultimatum to the Scottish Government: release withheld documents or face legal proceedings.
The Battle Over a Controversial FOI Request
The dispute centres on a freedom of information request made in 2021 by a member of the public, Benjamin Harrop. He sought documents related to the ministerial code inquiry into the Alex Salmond affair and the government's handling of sexual misconduct allegations against the former First Minister.
This request touched on one of the most turbulent episodes in recent Scottish politics. Two major probes were launched after an internal government investigation into the allegations was ruled 'unlawful', 'procedurally unfair', and 'tainted with apparent bias'. In separate criminal proceedings, Alex Salmond was prosecuted on 13 counts of sexual assault and was acquitted by a jury on all charges.
While a Holyrood inquiry concluded former First Minister Nicola Sturgeon had misled MSPs, a separate review by former Irish prosecutor James Hamilton found she had no case to answer. When Mr Harrop asked to see evidence from James Hamilton's review, the government refused. Officials argued that, as the barrister was independent, they did not 'hold' the material for the purposes of FOI law.
A Commissioner's Dogged Pursuit of Transparency
Mr Harrop appealed to the Information Commissioner. In November 2023, David Hamilton ordered the government to hand over some of the evidence submitted to James Hamilton's inquiry. The government stated it would comply but has, to date, failed to do so.
Ministers have expressed concern that releasing the documents could risk identifying the women who made complaints against Alex Salmond. While protecting their anonymity is paramount, the Commissioner has made clear that this cannot become a blanket pretext for ignoring FOI legislation and withholding documents the public has a right to see.
This standoff has led to Hamilton's decisive warning: ministers have until Thursday to provide the papers, or he will initiate action at the Court of Session. While the government can delay with his office, the court holds the power to hold ministers in contempt—a far more serious sanction.
A Symptom of a Wider Culture of Secrecy
This case is about more than a single request; it highlights a broader pattern of behaviour within the Scottish Government. Commissioner Hamilton has publicly rebuked ministers for a habit of 'last-minute communication', which he says disrespects applicants and the public on matters of significant interest.
Observers point to a concerning trend of opacity under the SNP. This culture was evident when former First Ministers Nicola Sturgeon and John Swinney deleted their Covid-era WhatsApp messages, when former minister Michael Matheson delayed explaining a massive data bill on his parliamentary iPad, and when Justice Secretary Angela Constance misrepresented expert views and had to be pressured to correct the record.
It is a stark contrast to the SNP's earlier enthusiasm for transparency in opposition, when they frequently used FOI laws to scrutinise the then Labour-led administration. In government, critics argue, the party has developed an allergy to openness, acting as if its own perceived virtue negates the need for robust oversight.
David Hamilton's determined efforts are a rare beacon of accountability. In an atmosphere where decision-making is increasingly shrouded in whispers, unminuted meetings, and heavily redacted documents, his office represents a vital check. True representative government is impossible when citizens are denied the right to know what is being done in their name and with their taxes.
Scrutiny is not bias or a vendetta—it is the lifeblood of a healthy democracy. As the deadline looms, this case will test whether that principle still holds sway in Holyrood.
