Court-Ordered Anonymity and FOI: Real Identification Risk, Not Definitive Confirmation, Governs Disclosure

1. Introduction

This judgment establishes how the contempt-of-court exemption in section 26(c) of the Freedom of Information (Scotland) Act 2002 operates where disclosure risks identifying people protected by court orders. It is the court’s first consideration of the interpretation and application of that provision.

The central issue was jigsaw identification: information that appears innocuous in isolation may identify a protected person when combined with information available elsewhere. The Scottish Ministers withheld material relating to two complainers, Ms A and Ms B, whose identities were protected in proceedings arising from allegations against a former First Minister. The Scottish Information Commissioner ordered disclosure of some of that material.

The Inner House upheld the Commissioner’s responsibility to assess exemptions independently. However, it held that he had applied an excessively demanding identification threshold. The relevant orders did not require disclosure conclusively to establish someone’s identity. A real or substantial risk of identification, including identification within a particular community, was sufficient.

The decision therefore preserves independent freedom-of-information oversight while requiring that oversight to give proper effect to judicial protections for complainers.

2. Background and Statutory Framework

The proceedings and protective measures

The dispute originated in the Scottish Government’s investigation of workplace-harassment complaints against a former First Minister. In 2018, he sought judicial review of the investigation and its resulting reports. The Ministers subsequently conceded the petition on grounds concerning procedural unfairness and apparent bias.

Several protective measures remained relevant:

• The October 2018 order: Lord Woolman prohibited publication of the complainers’ names, their past and present designations, and other information that would lead to their identification.
• The January 2019 undertaking: the Ministers undertook not to publish or disseminate the investigating officer’s report or associated statements and materials, subject to specified exceptions, including compliance with a lawful requirement and court approval.
• The criminal-proceedings order: Lady Dorrian prohibited publication of identifying information about the complainers. That order was subsequently varied but remained in force after the former First Minister’s acquittal on all charges.
• The November 2023 order: in subsequent misfeasance proceedings, Lord Fairley prohibited publication identifying a person named in the pleadings as having given evidence in the criminal proceedings.

The continued protection did not depend on a conviction. Its purposes included safeguarding dignity, privacy and safety, and avoiding the deterrent effect that exposure could have on the reporting of sexual offending.

The information requests

A separate ministerial-code investigation examined meetings between the former First Minister and the then First Minister. The independent adviser’s redacted report, published in March 2021, concluded that the Code had not been breached.

The first information request, made in April 2021, sought all written evidence submitted to that investigation. The second, made in December 2023, sought all evidence. An earlier appeal had already established that the Ministers held relevant information for the purposes of the 2002 Act.

Following reconsideration, the Ministers relied on exemptions concerning contempt of court, effective conduct of public affairs and personal data. These appeals concerned only section 26(c). The court did not determine the application of the other exemptions.

The relevant statutory provisions

Section 26 provides that information is exempt where disclosure by a Scottish public authority, “otherwise than under this Act”, falls within one of the specified prohibitions. Under paragraph (c), the relevant condition is that disclosure:

“would constitute, or be punishable as, a contempt of court.”

The exemption is absolute. Under section 2, once it applies, there is no further balancing exercise asking whether the public interest nevertheless favours disclosure.

Sections 47–50 establish the Commissioner’s decision-making and investigatory functions, including the power to obtain withheld information. Section 56 permits an appeal to the Court of Session on a point of law only. These provisions framed both the Commissioner’s institutional responsibility and the permissible scope of the Ministers’ appeals.

3. The Commissioner’s Decisions and the Grounds of Appeal

In decision notices 279/2025 and 315/2025, the Commissioner accepted that some withheld information fell within section 26(c). He nevertheless required disclosure of other material.

His investigation was not confined to reading the information in isolation. He obtained the material through an information notice, considered publicly available information, recognised the intense public interest and speculation surrounding the proceedings, and undertook his own research.

The decisive problem lay in his reasoning about the remaining information. He accepted that disclosure would permit assumptions about one or more complainers’ identities, but was not satisfied that it would enable those assumptions to be confirmed or refuted. He treated that absence of confirmation as a reason why disclosure would not lead to identification.

The Ministers advanced two grounds of appeal:

1. Institutional responsibility: the Commissioner should have asked whether the Ministers had a proper basis for invoking section 26(c), rather than deciding independently whether disclosure would constitute contempt.
2. The identification threshold: the Commissioner wrongly required information capable of definitively confirming identity, whereas the orders protected against a real risk of identification.

The Commissioner defended his independent statutory role and argued that the Ministers were attempting to reopen a factual assessment. He also contended that disclosure compelled under the 2002 Act could not itself constitute contempt.

4. Summary of the Judgment

The court rejected the first ground but upheld the second.

• The Commissioner must decide independently. He is not restricted to reviewing whether an authority’s decision was reasonable or had a proper basis.
• That independent assessment must apply the correct law. The Commissioner misunderstood the identification threshold established by the existing authority governing these orders.
• Definitive identification is unnecessary. A real or substantial risk of identification is sufficient; there is no requirement that assumptions can be conclusively verified.
• Identification within a community is sufficient. The material need not identify a complainer to the public generally.
• The disclosure requirements were quashed. Both decisions were set aside insofar as they ordered disclosure of material withheld under the claimed section 26(c) exemption.
• The matters were remitted. The Commissioner must reconsider them using the correct legal approach.

The court did not conclusively determine the exemption status of every disputed passage. Nor did it resolve whether compliance with a Commissioner’s decision would provide protection against contempt. Expenses were reserved.

5. Precedents Cited and Their Significance

Murray v HM Advocate

Murray v HM Advocate [2022] HCJAC 14; 2022 JC 181 was the controlling authority. It concerned online publications found to contain information liable to identify complainers protected by the criminal-proceedings order. The publisher challenged the contempt finding and the resulting eight-month sentence through a petition to the nobile officium.

The full bench’s explanation of the relevant orders supplied three propositions central to the present appeals:

1. The risk test: deliberately published material breaches the protection if it produces a real or substantial risk of identification. The question does not require a probability calculation.
2. The relevant audience: identification by a section of the public is enough, particularly within the community where a complainer lives or works.
3. The cumulative assessment: further details can complete or advance an identifying picture when combined with information already available.

The present court treated those propositions as authoritative explanations of the purpose and reach of the orders. The Commissioner’s confirmation-or-refutation approach could not be reconciled with them.

The judgment also reproduced the distinction drawn in Murray v HM Advocate between deliberate publication and a subjective intention to commit contempt. The relevant mental element concerns the deliberate act of publication; a publisher’s belief that the conduct avoids contempt does not necessarily answer an objective breach of the order.

Robertson and Gough v HM Advocate

Robertson and Gough v HM Advocate [2007] HCJAC 63; 2008 JC 146, paragraph 29, appeared within the passage quoted from Murray v HM Advocate. It supplied the general description of contempt as conduct denoting wilful defiance of, or disrespect towards, the court, or wilfully challenging its authority or the supremacy of the law.

Its significance was foundational rather than independently dispositive. It explained the nature of contempt underlying the section 26(c) inquiry, while the more specific identification principles came from Murray v HM Advocate.

Brown v UK

Brown v UK (44223/98) (2002) 35 EHRR CD197 was also cited through Murray v HM Advocate. It supported the broader justification for protecting complainers: privacy and dignity matter individually, but anonymity also serves the public interest in sexual offences being reported, investigated and tried.

The reference reinforced the protective purpose of the orders. The present judgment did not undertake a separate Convention-rights proportionality analysis.

Beggs v Scottish Information Commissioner

Beggs v Scottish Information Commissioner [2016] CSIH 23; 2016 SC 615, paragraph 14, supported the Commissioner’s independent adjudicative role. The Commissioner must determine whether requested information falls within an exemption and, where an exemption is qualified, address the applicable public-interest question.

This authority helped defeat the Ministers’ first ground. The statutory scheme does not reduce the Commissioner to checking whether an authority’s refusal was rational or defensible.

Graham v Robert Younger Limited

Graham v Robert Younger Limited 1955 JC 28 supported the proposition that breach of an undertaking given to the court may amount to contempt. It explained why the Ministers’ January 2019 undertaking was legally relevant alongside the publication orders.

The court did not, however, comprehensively determine the undertaking’s application to each disputed item or resolve every question arising from its exceptions.

Scottish Ministers v Scottish Information Commissioner

Scottish Ministers v Scottish Information Commissioner [2023] CSIH 46; 2024 SC 159 concerned the earlier stage of the first request. The court dismissed the Ministers’ appeal against the conclusion that they held the information for freedom-of-information purposes.

Its role here was procedural and contextual. It explained why the Ministers had to reconsider the request, but it did not determine whether the information was exempt under section 26(c).

Dumfries and Galloway Council v Scottish Information Commissioner

The Ministers relied on Dumfries and Galloway Council v Scottish Information Commissioner [2008] CSIH 12; 2008 SC 327 when disputing the Commissioner’s proposed interpretation of “otherwise than under this Act”. They submitted that the phrase concerned the source of the prohibition, rather than making compelled disclosure immune from contempt.

The court expressly left that interpretative dispute unresolved. The authority must therefore be understood as supporting an argument advanced in the appeals, not as establishing a proposition newly adopted in this judgment.

Authorities concerning points not advanced to the decision-maker

The Commissioner relied on:

• Hickey v Secretary of State for Work and Pensions [2018] EWCA Civ 851; [2018] 4 WLR 71, paragraph 52;
• AL v Secretary of State for the Home Department [2026] EWCA Civ 370; [2026] 3 WLUK 640, paragraph 79;
• Secretary of State for the Home Department v Hirtie [2026] EWCA Civ 1000; [2026] 7 WLUK 623, paragraph 56; and
• Taylor v Scottish Ministers (No 2) [2019] CSIH 11; 2019 SLT 681, paragraph 34.

These authorities were invoked for the proposition that a decision-maker is not necessarily legally at fault for failing to address an argument that the parties never advanced. The Ministers had not cited Murray v HM Advocate to the Commissioner, who said he was unaware of it.

The court acknowledged that general proposition but rejected its application here. Jigsaw identification was already central to the dispute, and the omitted authority conclusively explained the orders’ operation in that very context. The court could not disregard the governing law merely because the parties had failed to identify it below.

6. Analysis of the Legal Reasoning

Independent oversight is not deferential review

The Ministers’ first argument would have materially narrowed the Commissioner’s role. Asking whether an authority had a “proper basis” for refusal would allow a withholding decision to survive even where the Commissioner independently concluded that the exemption did not apply.

The court found no statutory foundation for that approach. Sections 47–50 require the Commissioner to decide whether the authority complied with the Act. His function differs from judicial review, where a court may sometimes recognise a decision-maker’s margin of judgment.

This distinction also separates two different functions: deciding whether disclosure falls within a statutory exemption, and determining liability for contempt in judicial proceedings. The Commissioner must perform the former; that does not make him the court exercising the latter jurisdiction.

The error concerned the legal threshold, not merely factual evaluation

The Commissioner argued that identifying disclosure risk was a matter of fact and degree. That was not sufficient to answer the appeal. Although evaluating particular material involves judgment, the legal threshold guiding that evaluation must be correct.

His requirement that disclosure enable confirmation or refutation of assumptions introduced a degree of certainty absent from the governing orders. The court therefore identified an error of law, bringing the challenge within section 56 rather than treating it as an impermissible factual rehearing.

Protection operates before identification becomes certain

The court’s reasoning is preventive. If protection applied only once a disclosed detail conclusively established identity, it would fail to address the cumulative process that makes jigsaw identification dangerous.

Information may materially heighten identification risk without becoming the final, decisive piece. The relevant inquiry is its effect when combined with existing knowledge, including knowledge held by people in governmental, political, workplace or local communities.

The judgment should not be read as replacing the stated threshold with any conceivable possibility of identification. Its governing formulation remains a real or substantial risk. The Commissioner’s error was to demand definitive confirmation beyond that threshold.

The protective purpose informs the orders’ meaning

The court repeatedly connected interpretation with purpose. The orders safeguarded dignity, privacy and safety. Permitting identity-based assumptions in the circumstances identified by the Commissioner undermined those objectives.

This was particularly important because identification need not be universal to cause harm. Recognition within a person’s professional or local community may be enough to defeat the practical protection that anonymity was intended to provide.

The absolute exemption leaves no second-stage balancing exercise

The case involved information of evident public importance concerning governmental conduct. Nevertheless, once section 26(c) applies, the Act does not authorise disclosure because political accountability or transparency interests are considered stronger.

That does not create a general secrecy entitlement for politically sensitive information. The authority must still establish that the particular exemption applies, and the Commissioner must independently assess that question under the correct law.

The unresolved question of compelled disclosure

The Commissioner argued that compliance with his decision would shield the Ministers from contempt. He relied partly on statutory coherence: section 53 permits non-compliance with his decisions to be certified to the Court of Session and punished as contempt.

The court did not decide that argument. It expressly declined to resolve the meaning and effect of “otherwise than under this Act”. Accordingly, the judgment establishes neither a general immunity for compelled disclosure nor a definitive rejection of that immunity.

This reservation is important. The successful challenge rested on the incorrect identification threshold, not on a final ruling about competing obligations or the consequences of complying with an erroneous disclosure decision.

7. Practical and Wider Impact

The judgment provides a clear framework for future Scottish freedom-of-information disputes involving court-ordered anonymity.

• For public authorities: withholding submissions should identify the relevant orders or undertakings and explain the cumulative identification risk, including the knowledge of particular communities. General assertions of sensitivity are not a substitute for that analysis.
• For the Commissioner: independent scrutiny remains mandatory, but it must examine risk rather than demand conclusive identification. Reviewing documents and conducting research cannot cure application of the wrong legal standard.
• For applicants: information need not name someone directly to fall within section 26(c). Conversely, an authority cannot secure exemption merely by asserting that disclosure is reasonably considered risky.
• For protected complainers: the decision recognises that effective anonymity must address identification within relevant communities and the cumulative effect of separate disclosures.
• For appellate proceedings: a challenge framed as a factual disagreement may nevertheless disclose an appealable legal error where the decision-maker has used the wrong threshold.

The judgment’s immediate reach is the Scottish statutory scheme and the orders under consideration. Its broader analytical significance lies in recognising that information disclosure must be assessed contextually, not document by document in artificial isolation.

It also leaves an important practical question open: the legal protection, if any, afforded by compliance with a Commissioner’s disclosure decision where a court order is subsequently said to have been breached.

8. Complex Concepts Simplified

Jigsaw identification

Several separate clues reveal a person’s identity when combined, even though no individual clue names them.

Real or substantial risk

A genuine identification danger, rather than a merely speculative possibility. Actual identification or definitive confirmation need not be established.

Absolute exemption

Once the statutory conditions are met, there is no additional public-interest test permitting disclosure.

Contempt of court

Conduct that defies or undermines the court’s authority, including certain breaches of its orders or undertakings given to it.

Section 11 order

A publication restriction under the Contempt of Court Act 1981 protecting a name or matter withheld from the public in court proceedings.

Independent determination

The Commissioner reaches his own conclusion about the exemption, rather than merely asking whether the authority’s view was reasonable.

Quashing and remittal

The court sets aside the legally defective decision and returns the matter to the decision-maker for reconsideration.

Nobile officium

An exceptional jurisdiction of Scotland’s superior courts through which relief may be sought where ordinary procedures do not provide an appropriate remedy.

9. Conclusion

The judgment’s central contribution is to apply established jigsaw-identification principles to section 26(c): disclosure need not conclusively identify a protected complainer; a real or substantial risk of identification within a relevant community is sufficient.

At the same time, the court rejected deference to the withholding authority. The Commissioner must independently apply that standard. The resulting balance is precise: meaningful information-rights oversight, coupled with effective protection against disclosures that undermine court-ordered anonymity.

The appeals succeeded, but the final application of the exemption was remitted for reconsideration. The separate question whether compelled disclosure provides immunity from contempt remains unresolved.