Scottish Information Commissioner, David Hamilton, has received a reply to his letter of 2 February 2026 in which he sought assurances from the Scottish Government’s Permanent Secretary that Ministers had complied with his Decision 193/2024.
That Decision required Scottish Ministers to release all legal advice given to the Scottish Government in relation to the Commissioner's earlier decision on whether they held Hamilton Inquiry evidence. The Commissioner was advised by the Scottish Government that it had complied, however the Scottish Government refused the Commissioner access to the withheld information he needed to see in order to check this by relying on a little-used provision in FOI law. Therefore, at the time, the Commissioner had to take Ministers at their word that compliance had been achieved.
During a related court case in January 2026, the Commissioner became alert to the prospect that some of that legal advice had not been released and sought reassurance.
A response has finally been received which the Commissioner considers demonstrates that the Scottish Government has failed to comply with his 2024 Decision.
He is now consulting with lawyers on certifying this non-compliance to the Court of Session, allowing the court to inquire into a second case of contempt of court.
The Commissioner said,
“Perhaps worse than the fact that Scottish Ministers have once again failed to comply with one of my Decisions, is that they appear to have tried to conceal this breach of trust with unjustified delays and a wall of silence. The excuses I have now been given, both in writing and in person, are preposterous and unacceptable.
I have now met with the Permanent Secretary and have expressed my dismay. I can no longer trust the Government to handle this information unsupervised and will explore more intrusive options to ensure compliance.
The Government’s FOI handling of the Hamilton Inquiry cases stands in stark contrast to the way nearly every other case of theirs is handled. Following my meeting with the Permanent Secretary, I now need to assess whether I can resource a further intervention to examine the unusual case handling practices in these cases.”
The letter of 10 March 2026 from the Permanent Secretary to the Commissioner is published here.
