Scottish Government position in Salmond case files 'hopeless', lawyer warns

A senior lawyer acting in the so-called ‘Salmond Files’ freedom of information battle has described part of the Scottish Government’s position in the case as ‘hopeless’.

Advocate Roddy Dunlop KC told Court of Session judges on Tuesday that they should reject an appeal brought by the Ministers to Scotland’s highest civil appeal court.

Mr Dunlop has been instructed to act for the Scottish Information Commissioner, David Hamilton, in proceedings which have been brought before the court’s Inner House.

The Scottish Government are asking the Court of Session’s appeal court to overturn decisions made by Mr Hamilton in relation to freedom of information requests.

The requests follow an investigation by Irish lawyer James Hamilton into former first minister Nicola Sturgeon’s involvement in the handling of complaints made against her predecessor, Alex Salmond.

Mr Hamilton was asked to assess whether she complied with the terms of the ministerial code in connection with several meetings between her and Salmond.

Mr Hamilton cleared Sturgeon of breaching the ministerial code in relation to the matter.

Separate applications were made to the Scottish Ministers under Freedom of Information legislation.

The first request sought all written evidence to Mr Hamilton’s probe, whilst the second sought all evidence relating to Mr Hamilton’s investigation.

The ministers provided some of the information sought within the act, and this prompted the members of the public to complain to Mr Hamilton.

The government used the freedom of information legislation to justify them not disclosing the data.

In late 2025, the information commissioner decided that the ministers should disclose some of the withheld information sought in the two requests. He decided that this information had been wrongly withheld.

The Scottish Ministers want the Inner House to overturn parts of the Commissioner’s decisions.

Government lawyers argue that disclosing the information sought would breach contempt of court law.

They point to legal orders which are in place relating to witnesses who alleged in court that they had been sexually assaulted by Salmond.

The orders prevent the complainers from being named and prohibit publication of information likely to reveal their identities.

On Tuesday, the Scottish Ministers’ lawyer, Paul Reid KC, said disclosure of the information could lead to the ‘jigsaw identification’ of the complainers who gave evidence against Salmond. Mr Reid spoke of the TV game show Catchphrase to illustrate his argument.

Mr Reid’s position on the first ground of appeal in the case was that the Commissioner had taken too broad a view of his role.

He said that by ordering disclosure of the information sought in the FOI requests, risked putting the Scottish Ministers in a difficult position.

He described this position as having to comply with the commissioner and potentially breaching the court orders. But on Tuesday, Mr Dunlop told Inner House judges Lord Pentland, Lord Malcolm and Lady Wise that the appeal should be rejected.

He said that the commissioner had acted lawfully and was entitled to make the decision he did.

He added: “In my submission, the first ground of appeal is hopeless.”

The investigation was triggered after Sturgeon referred herself to the independent advisers on the Scottish ministerial code for an alleged breach committed while she was in office.

Salmond was acquitted in March 2020 on 13 charges following a trial at the High Court in Edinburgh. James Hamilton investigated and determined that Sturgeon had not breached the code.

During proceedings, trial judge Lady Dorrian passed an order preventing publication of any information likely to disclose the complainers’ identities.

In February 2021, Lady Dorrian’s order was amended to prevent “the publication of the names and identity and any information likely to disclose the identity of the complainers…as such complainers in those proceedings.”

In August 2018, Salmond brought judicial review proceedings against the Scottish Ministers to the Court of Session, challenging how complaints that had been made against him had been handled.

In October 2018, the judge in the case, Lord Woolman, made another order which prohibited publication of the names, designations, and “any other information concerning those complainers which would lead to their identification.”

On Tuesday, Mr Reid told the court that the Scottish Government believes disclosing the information sought by the commissioner could cause the ministers to breach the orders and expose ministers to the risk of being in contempt of court.

Mr Reid spoke about the concept of ‘jigsaw identification’. He said that disclosing the data being sought could be combined with information already known by the public, which could lead people to identify the complainers.

He spoke about the quiz show Catchphrase to illustrate his point.

Mr Reid said: “Excuse the example, which is intended to illustrate and not trivialise. The game show Catchphrase, where one square is revealed at a time, and the contestants are asked to guess what the picture shows.

“There’ll be those sitting at home shouting the answer at the television while the contestant continues to look flummoxed about what they’re supposed to be seeing.

“But that illustrates the sort of difficulty we have here, that you can have the same bits of the picture presented and different people see the picture at different points.”

Mr Reid said the ministers were entitled under freedom of information legislation to hold back the information.

Mr Reid also spoke of the ministers second ground of appeal. In this ground of appeal, the ministers claim the information commissioner had applied too high a threshold when assessing the risk of jigsaw identification.

He argued that the Commissioner used the wrong legal test by asking whether the information would conclusively identify complainers.

He argued the commissioner should have tested whether releasing the information would add to the jigsaw and create a real risk of identification.

Mr Reid added: “Identification’s not the threshold. It’s a real risk.”

Mr Dunlop told the court that the information commissioner had interpreted his role with regard to freedom of information legislation correctly.

He said that this meant he was entitled to order the ministers to disclose the information being sought.

Mr Dunlop said that Mr Hamilton had looked at the withheld material and considered what was already publicly known about the complainers.

He said that the information commissioner had carried out a proper assessment of Jigsaw identification.

Mr Dunlop added: “In my submission, the Commissioner carefully considered the materials and held that some should not be disclosed, that others should. And in doing so, did exactly what the 2002 Act requires him to do.”

Lord Pentland told the lawyers that the court would issue its decision in the case sometime in the near future.