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Petition of The Scottish Information Commissioner against the Scottish Ministers (Court of Session)
Smart Summary
Summary of Opinion — Judge Poole
Factual and Procedural Background
The Petitioner sought the court's inquiry under section 53 of the Freedom of Information (Scotland) Act 2002 ("FOISA") into whether the Respondent failed to comply with Decision Notice 281/2025 issued by the Petitioner. The Applicant had requested communications and related information about an independent Investigation Report. The Respondent disclosed some material but withheld other material relying on FOISA exemptions. The Petitioner issued the Notice on 1 December 2025 requiring disclosure of specified withheld information and a revised review outcome by 15 January 2026. The Petitioner certified non-compliance to the Court of Session under section 53(1) FOISA and brought the petition on 2 February 2026. The withheld material was ultimately disclosed on 24 February 2026. Judge Poole conducted an inquiry and issued the opinion summarized below.
Legal Issues Presented
- Whether the court should exercise its discretion to inquire into the Petitioner's certification under section 53(3) FOISA that the Respondent failed to comply with the Notice.
- If an inquiry is made, whether the Respondent's failure to comply with the Notice amounted to conduct warranting the court to "deal with the authority as if it had committed a contempt of court" under section 53(3) FOISA.
- If such a finding is made, what disposal or sanction is appropriate (including whether to award expenses on an indemnity or agent-client basis).
Arguments of the Parties
Petitioner's Arguments
- The Notice and the Petitioner's Certificate remained in force and lawful.
- The Respondent failed to comply with the Notice by the specified deadline and certification to the court was not irrational.
- The Respondent's conduct warranted inquiry and, potentially, treatment as if a contempt.
Respondent's Arguments
- The Petitioner's decision to certify the matter to the court was irrational and the petition should be dismissed.
- The Respondent did not wilfully or contemptuously disobey the Notice; delay reflected complexities including protection of identities under court orders and the need for redactions.
- If any contempt is found, the appropriate disposal should be limited (admonition) and the court should permit further submissions on expenses.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Case A v Case B [2023] EWCA Civ 1438, [2024] 1 WLR 2869 |
Guidance on a two-stage process for certifying onward for contempt-related consideration: (i) whether the act/omission could constitute contempt; (ii) whether certification should be exercised. |
The court used this authority to frame the approach to whether certification and inquiry were appropriate, focusing on seriousness and need for enforcement. |
| Navigator Equities Ltd and another v Deripaska [2021] EWCA Civ 1799, [2022] 1 WLR 3656 |
Contempt enforcement should be proportionate and may be used to enforce decisions or draw attention to serious conduct; motive irrelevant to establishing deliberate act/omission. |
The court relied on its statements about proportionality and that deliberate omission can establish contempt without proof of specific motive. |
| Perkier Foods Ltd v Halo Foods Ltd [2019] EWHC 3462 |
Decisions or orders should ordinarily be complied with even if burdensome; supports necessity of fixed compliance dates for enforceability. |
The court cited it to emphasise that statutory compliance dates must be respected and cannot be unilaterally disapplied by the public authority. |
| Murray v HM Advocate 2022 JC 181 |
Where there is a court order, deliberate acts breaching it suffice for contempt; deliberate conduct constituting wilful defiance need not be motivated by intent to contemn. |
The court preferred this approach for assessing contempt under section 53 FOISA and applied it to infer deliberate failure from the Respondent's conduct. |
| Beggs v Scottish Ministers 2005 1 SC 342 |
Discusses conduct constituting contempt and relevance of intention or attitude where no court order; deliberate breach of an order can indicate lack of respect for authority. |
The court read Beggs as compatible with Murray and treated deliberate failure to comply with the Notice as prima facie indicative of contempt. |
| CM v SM 2017 SC 235 |
Standard of proof in certain contexts (referenced for comparative purposes on proof standards). |
The court noted standards discussed but applied the criminal standard beyond reasonable doubt to the finding of contempt and was satisfied on that standard. |
| Bence v Cornwall Council and the Information Commissioner [2025] UKUT 420 (AAC) |
Approach to contempt in FOIA context: deliberate omission suffices; factors relevant to sanctioning. |
The court used Bence as analogous authority under FOIA to inform finding and sanction considerations under FOISA. |
| R (JM) v Croydon LBC [2010] 1 WLR 1658 |
Supports awarding indemnity or agent-client type expenses in appropriate cases following contempt findings. |
The court referenced it when deciding that indemnity (agent-client, client paying) expenses were appropriate here. |
| Department for the Environment, Food and Rural Affairs v Information Commissioner [2012] PTSR 1299 |
Permits public authorities to take advice and consider appeals and alternative exemptions on review. |
The court acknowledged the principle but found it did not justify the long delay or the Respondent's failure to seek an extension. |
| Mid Bedfordshire District Council v Brown [2005] 1 WLR |
Risk that failure to exercise contempt powers may be seen as condoning breach by public authority; supports enforcement to uphold statutory authority. |
The court cited it in support of exercising powers to uphold the Petitioner's statutory role and the rule of law. |
Court's Reasoning and Analysis
The court first addressed the threshold discretion whether to inquire under section 53(3) FOISA. It concluded that an inquiry was appropriate because the Respondent accepted non-compliance with the Notice's time limit and had not sought an extension or appealed. The court applied principles drawn from related FOIA authorities to determine the appropriate approach to certification and inquiry, emphasising proportionality and the need for enforcement where statutory time limits were disregarded.
The court made detailed factual findings: the Notice required disclosure and a revised review outcome by 15 January 2026; the Respondent did not disclose by that date and did not request an extension; letters from Respondent officials on 15 and 22 January 2026 indicated compliance would occur "as soon as possible/practicably possible" but did not set a date; the withheld information was only disclosed on 24 February 2026; work on redactions did not commence in earnest until January 2026 after a Christmas break; the Respondent had resources and could have sought an extension or appealed.
In law, the court adopted the approach in Murray and related authorities that a deliberate act or omission breaching a required order/step suffices for a finding of contempt without proof of a subjective intent to contemn. The court inferred deliberate conduct from the Respondent's decisions about resourcing and timing and from the content and tone of the correspondence. Applying the criminal standard beyond reasonable doubt, the court was satisfied there had been contempt of the Commissioner (such that it was appropriate to invoke the court's contempt powers under section 53(3) FOISA).
In determining disposal, the court weighed mitigating factors (eventual compliance, complexity due to protective court orders, Christmas period) against aggravating features (delay, failure to request extension or appeal, use of correspondence to annex timing decisions to themselves, lack of apology or contrition). The court concluded admonition plus an adverse award of expenses on an indemnity (agent-client, client paying) basis was the appropriate response.
Holding and Implications
Holding: The court found that the Respondent deliberately failed to comply with the step required by Decision Notice 281/2025 by the date specified, such failure amounted to contempt of the Petitioner for the purposes of section 53(3) FOISA, and the court exercised its powers accordingly.
Implications: The direct effect is that the Respondent is admonished for the failure to comply with the Notice by 15 January 2026 and is ordered to pay the Petitioner's expenses on an agent-client, client paying basis. The decision reiterates that decision notices under FOISA containing statutory compliance dates must be respected unless appealed or an extension is agreed, and that the Court of Session may invoke contempt-related powers under section 53 FOISA to enforce compliance. The opinion provides guidance on factors relevant to inquiry and disposal under section 53 but does not purport to establish a new statutory test beyond applying established contempt principles.
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