Scotland’s information commissioner is preparing to take the Holyrood administration to court over an ongoing freedom of information dispute, with ministers claiming work to comply is underway and being ‘accelerated’
Scotland’s information commissioner has instructed solicitors to begin legal proceedings against the Scottish Government in a freedom of information row.
Ministers had until last Thursday to produce materials related a report from independent advisor James Hamilton which examined the conduct of erstwhile Scottish first minister Nicola Sturgeon. The former leader was cleared by the probe of breaching standards rules over meetings and calls she had with her predecessor, Alex Salmond, after harassment accusations against him emerged.
Current first minister John Swinney has said that the government will respond to the commissioner “as soon as practically possible”, adding: “I do not expect this will take much longer.”
But the administration has failed to meet the deadline set by commissioner David Hamilton and he has now instructed solicitors to bring legal proceedings against the government in the Court of Session. The matter relates to a FoI request placed by a member of the public, and the commissioner’s referral is the first of its kind.
The commissioner’s office said: “The commissioner’s decision in this case requires the disclosure of some of the requested information, while also requiring the Scottish Government to issue a new response in relation to other information, which had been incorrectly withheld on cost grounds. 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. Once certified, the court may then investigate the matter, and may treat a failure to comply as contempt of court.”
The accusations against Salmond led to a criminal trial in which he was acquitted of all charges. The complainers in the case have exercised their legal right to anonymity.
A spokesperson for the Scottish Government said “accelerated work is underway” to consider all relevant documents.
Swinney has said the need to uphold complainers’ anonymity has affected the government’s disclosures in the FoI matter. He told the Scottish Parliament: “The courts have made it clear the identities of those who complain 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 cannot release information which would breach those court orders and amount to a contempt of court.”
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However, Fergus Ewing MSP, a former Scottish Government minister, has accused him of hiding behind the complainers.
At first minister’s questions, Ewing said: “My question is this: isn’t the first minister using the excuse of jigsaw identification as a human shield as a pretext for declining to release information – because the real reason is it will cause extreme embarrassment to several people who are in the Scottish Government now, and previously were in that trusted position?”
Swinney told the chamber: “My duty as first minister at all times is to obey the law. And Mr Ewing is inviting me to be cavalier with the orders that have been passed by a court in this country. And I want to be crystal clear with parliament, I will do not one bit of it.”
Posting on social media, the information commissioner David Hamilton said the move marks the first time a public authority has been reported to the Court of Session for non-compliance by the independent body.
He said: “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 seven weeks to assess some files- and still we don’t have an intended completion date. FoI laws must be respected.”
Commenting on the commissioner’s action, Scottish Labour deputy leader Jackie Baillie accused the SNP administration of considering itself “above the law”. She said: “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.”
A Scottish Government spokesperson said: “The first minister has said that the Scottish Government will comply with the commissioner’s decision on this case as soon as possible. Court orders make it clear that the identities of those who complained in relation to allegations of sexual offences must be protected. We cannot publish information which would breach those court orders and amount to a contempt of court. Accelerated work is underway to consider each document for release. The assessment is complex given the need to avoid jigsaw identification.”
A version of this story originally appeared on PublicTechnology sister publication Holyrood
