Yesterday Lady Poole issued her opinion in the first ever petition by the Scottish Information Commissioner under section 53 of the Freedom of Information (Scotland) Act 2002. The petition related to the Scottish Ministers and their failure to comply with decision 281/2025 by the date for compliance stipulated within the decision notice.

Section 53 of FOISA provides that where a Scottish public authority has failed to comply with a decision notice issued under section 49 which requires the authority to take steps, or an information notice issued by the Commissioner under section 50 or an enforcement notice issued by the Commissioner under section 51, that the Commissioner may certify to the Court of Session, in witing, that the authority has failed to comply. Rule of Court 90.1(2) provides that the mechanism for doing so is by way of a petition (which is one of several different forms of initiating document in the Court of Session).

Once the Commissioner has certified the failure to the Court of Session and lodged a petition with the court under Chapter 90 of the Rules of the Court of Session, the court may inquire into the matter and may ultimately deal with the Scottish public authority as if it had committed a contempt of court. The court can hear evidence from witnesses called by the Commissioner and also from witnesses called by the Scottish public authority in question and hear submissions as part of the inquiry conducted under section 53(3) of FOISA.

Should the court inquire into the failure in this case?

The first issues that the Court had to consider was whether to inquire into the matter. The Commissioner had certified the failure by brining proceedings under section 53 of FOISA and Chapter 90 of the Rules of the Court of Session. However, the decision to inquire is ultimately a discretionary one for the Court as the legislation states that the court may inquire rather than must or shall inquire. The Scottish Ministers sought to argue that the Commissioner had acted irrationally in certifying the case and sought dismissal of the petition.

Lady Poole considers the applicable legal principles at [12]-[18] drawing upon authorities in relation to equivalent and similar provisions within the Freedom of Information Act 2000. Lady Poole sets out the task for the Commissioner in deciding whether to exercise the power to certify under section 53 of FOISA. In essence, the Commissioner requires to ask himself two questions. First, does it appear to the Commissioner that a Scottish public authority has failed to comply with a decision notice to the extent that it requires steps to be taken and secondly, should the case be certified to the Court of Session? [14] The Commissioner is not obliged to certify where he considers that there has been a failure to comply, but Lady Poole rejected the Scottish Minister’s contention that there must be something unusual or exceptional before certification to the court may take place. [14]. The focus is on whether there is either a need for enforcement at the time that the proceedings are brought under section 53 or the circumstances are such that it would be appropriate to bring them to the attention of the court for it to decide whether to make inquiry and exercise powers in relation to sanction. [14]

The court serves a different function from the Commissioner. In determining whether to inquire into the matter, Lady Poole states that “the court is essentially asking itself whether the circumstances reported to it by the Commissioner, in the light of any answers lodged, merit inquiry.” [15] The court might decide not to make inquiry where the reported failure appears to the court to be trivial, or it is not appropriate to draw the court’s attention to the type of conduct, or if the certification appears to have been brought for an improper collateral purpose. [15] However, Lady Poole goes on to state that “the circumstances in which a court would decline to inquire into a certification made by the Commissioner under section 53 FOISA are likely to be rare.” [16]. FOISA provides for the court to conduct an inquiry before making any decision about whether to deal with a Scottish public authority as if it had committed a contempt of court and this, Lady Poole, states is something that is important to recognise. [16] The level of inquiry provided for by section 53(3) of FOISA allows for “a merits review of whether there has been a failure under section 53(1)(a), if that is not admitted.” [16] Lady Poole deals with the Scottish Minister’s irrationality point at [17]-[18] of her opinion, rejecting it [18], before going on to determine that the circumstances of the case merited inquiry by the court. [19]

The inquiry by the Court

In this case no witnesses were called to give oral evidence, but both parties lodged written evidence and affidavits before making submissions. The court had before it an affidavit from the Commissioner and an affidavit from the Scottish Government’s Director for Propriety and Ethics.

Lady Poole goes on to make specific findings in fact at [21]-[40] of her opinion before then drawing conclusions from those factual findings at [41]-[45]. At [44] Lady Poole states:

“Scottish public authorities are expected to comply with time limits set by the Commissioner. They are relatively generous, and longer than the period allowed for appealing a decision notice under section 56 FOISA. There are avenues available to public authorities if they are concerned about a time limit in a decision notice under section 49 FOISA.  If the time limit set is not in accordance with the statutory requirements, or fails properly to have regard to the Commissioner’s own internal guidance about setting the date in the Investigations Handbook, an appeal on a point of law might in principle be available. That would stop the clock under section 49(7) until the appeal is finally determined. Alternatively, and probably more commonly, a Scottish public authority can write to the Commissioner requesting an extension until a particular time, before which enforcement action will not be commenced, and giving reasons for that request. The Commissioner is expected to act reasonably in relation to such requests.“

One of the issues in this case was that there were orders made by the High Court of Justiciary and also the Court of Session in relation to proceedings against and by (respectively) the late Alex Salmond protecting the identities of the women who were complainers in the criminal proceedings against him. Lady Poole accepted that this “meant there was an added layer of complexity in complying with [the Commissioner’s decision notice].” [45] However, the Scottish Ministers were not entitled to simply disapply the time limits placed upon them by the Commissioner’s decision in accordance with section 49 of FOISA. [45] Furthermore, correspondence sent on behalf of the Scottish Ministers to the Commissioner and the failure to comply with the disclosure requirement until 24 February 2026 “showed a lack of proper respect for the Commissioner’s statutory role and the freedom of information intended by FOISA.” [45] There was no apology tendered before the court to the Commissioner on behalf of the Scottish Ministers for their admitted failure to comply. [45] Lady Poole stated that there had been “a deliberate choice to use much of the time period in the Notice for purposes other than preparing documents for disclosure.” [45] Lady Poole concluded that “deliberate choices by the Scottish Ministers led to the failure to comply with steps in the Notice timeously.” [45]

The Standard to be meet

The Commissioner submitted that what was required was deliberate conduct, that this constituted wilful defiance and that it was no defence that the person in question did not intend to commit contempt. The Scottish Ministers submitted that they were not in contempt because their failures were not wilful nor had the shown lack of respect of disregard. It was submitted that their delay in compliance had not been intended to be offensive to the dignity of the Commissioner, but rather it was to show respect for the authority and dignity of the courts that had made orders preventing so-called “jigsaw identification” of complainers in the trial of the late Alex Salmond. No contempt had been proved to the standard of beyond reasonable doubt.

Lady Poole preferred the submissions made on behalf of the Commissioner in relation to the proper legal approach. [50] First, it is sufficient for a finding of contempt that the conduct was deliberate, even if it wasn’t intended to be contemptuous. [51] While a wider range of conduct than that which is intended to be intentionally contemptuous is caught, the court has a correspondingly wide set of disposals available to it. [51] While a decision notice issued by the Commissioner is not a court order, it is a decision of a Commissioner whose office has been established by statute and therefore should similarly be complied with timeously. [51] A deliberate failure to comply with the Notice by a time limit provided for according to statutory requirements “implies a lack of respect for the Notice, and hence for the authority of the Commissioner.” [52] Whether there is an intention to commit contempt is not a pre-condition for a finding of contempt, rather it is relevant to what (if any) sanction should be imposed. [53]

Options for disposal

The court is not obliged, even if it finds failures by a Scottish public authority, to deal with the authority as if it had committed a contempt of court. The court retains a discretion not to deal with the authority as if it had committed a contempt of court. [54]

The Court of Session has a range of options open to it, including committal to prison for up to two years and/or the imposition an unlimited fine. It has the power to order the Scottish public authority to implement the Commissioner’s decision and the publication of the finding of contempt could also be a sanction. [55] The court also has the power to award expenses (that is, for readers not from Scotland, costs), including on an “agent-client, client paying basis” (essentially “indemnity costs” for those not familiar with Scottish procedure) [55]

Disposal in the present case

At [57], Lady Poole states that:

“The court finds that the Scottish Ministers deliberately failed to comply with a step set out in the Notice by the time limit in that Notice.  The deliberate nature of the failure is inferred by the court from the decisions of the Scottish Ministers not to commence the detailed physical work redacting documents until after the Christmas break in 2026 (when the Notice had been issued on 1 December 2025), and the terms of the letters sent by the Scottish Ministers on 15 and 22 January 2026.  That is sufficient for the Scottish Ministers to be in contempt of the Commissioner (…) The court is satisfied to the standard of proof beyond reasonable doubt that there has been a contempt.”

Having found that that the Scottish Ministers were in contempt, it was also appropriate to exercise the powers of the court in relation to contempt.  [58] The aim of the powers in section 53(3) of FOISA is “to enable the court to uphold the authority of the Commissioner and make sure decision notices are obeyed.” [58] Not exercising the court’s powers “might be seen as condoning the breach by a public authority of a deadline fixed by the Commissioner exercising statutory functions in compliance with the requirements of FOISA.” [58] This “would send out the wrong signal to others tempted to do the same, diminish respect for decisions of the Commissioner, undermine the authority of the Commissioner, and subvert the rule of law.” [58]

The appropriate response in this case was to admonish the Scottish Ministers and to find them liable for the expenses on an “agent-client, client paying” basis. [66]

Comment

This is a significant decision, not least because it is the first such decision made under section 53 of FOISA since it came into force on 1 January 2005. The fact that it involved the Scottish Ministers adds to the significance of the decision. This decision follows quick on the heels of Lady Poole’s decision (along with Upper Tribunal Judge Wikeley), in her capacity as President of the Administrative Appeals Chamber of the Upper Tribunal, in  Cleasby v University of Exeter and The Information Commissioner. They are, of course, decisions of different bodies under different statutory schemes and there are notable factual differences between them; however, it is clear from this decision that Lady Poole considers that there is no substantive difference in the approach once the relevant certification has been made and that a robust approach should be taken to non-compliance by Scottish public authorities once certification has been made.

Deliberate failures to comply with decision notices open Scottish public authorities up to the possibility of a finding of contempt, whether they intended on being contemptuous or not. Scottish public authorities typically have a more generous time for complying with decisions than public authorities do in response to decision notices under section 50 of the Freedom of Information Act 2000 (45 days vs 35 days), but they do also have a more generous period in which to appeal the decision (42 days vs 28 days). Considerations around whether to appeal or not don’t excuse delays in complying with the decision notice, as Lady Poole noted at [61] it is possible to both consider whether to appeal and undertake the work necessary to comply with the decision notice in parallel.

^{Disclaimer: This article is for information purposes only and nothing in it should be taken as constituting legal advice.}