SNP ministers clash in court with information watchdog over Salmond files
The Scottish government argues disclosure of the material could identify complainers
SNP ministers have clashed in court with Scotland’s information watchdog over the release of the so-called Salmond files.
It comes after the Scottish Information Commissioner ruled the government had wrongly withheld material following freedom of information (FOI) requests.
Ministers argue disclosure could identify the women who accused Alex Salmond of sexual assault and so releasing the material would amount to a contempt of court.
They have appealed the commissioner’s ruling to the Court of Session, which heard the case on Tuesday.
Paul Reid KC, who was acting for the government, said: "Ministers are acutely aware of the interest in this issue and the underlying subject matter, but also acutely aware of the importance of protecting the identity of these complainers."
He said there was an issue of jigsaw identification, which he compared to the television game show Catchphrase.
"There will be those sitting at home shouting the answer at the television while the contestant continues to look flummoxed at what they are supposed to be seeing," he said.
“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.
"Here the commissioner says revealing these pieces wouldn't allow you to identify what the picture shows, whereas the ministers apprehend that others would see it."
He added: "But of course, this situation is much more serious than a game show. The orders seek to prevent the identification of the complainers in one of the highest profile criminal trials in recent years."
Roddy Dunlop KC, acting for the commissioner, said the appeal should be refused, and described part of the government’s argument as “hopeless”.
"In my submission, the commissioner carefully considered the materials and held that some should not be disclosed but others should, and in doing so did exactly what the 2002 [Freedom of Information] Act requires him to do,” he said.
He pointed out the government had not put the material itself before the court, adding: "So we have this very artificial situation in which the court is being asked to address this without having the information before it.”
During the case, Mr Reid apologised for the government’s failure to clearly set out what it was asking the court to do.
The Lord President, Lord Pentland, was also critical of the government for putting the 2022 contempt conviction of former diplomat and blogger Craig Murray “front and centre” of its case, despite previously making no direct reference to this in its representation to the commissioner.
"To my mind that seems surprising and perhaps unfortunate,” the judge said.
The Lord President, Lord Malcolm and Lady Wise will now consider the arguments before releasing their judgment at a later date.
It is the latest development in a long-running transparency battle over information relating to the 2021 investigation into whether Nicola Sturgeon breached the ministerial code in her handling of harassment allegations against Mr Salmond.
Ms Sturgeon referred herself to independent adviser James Hamilton in 2019, who investigated and issued a report in 2021 in which he determined the former first minister did not breach the code.
Following FOI requests seeking the written evidence considered by Mr Hamilton, the commissioner had ordered ministers to release some of the material they had previously withheld using an exemption covering contempt of court.
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