South Lanarkshire Council v The Scottish Information Commissioner

This decision of the Court of Session (Extra Division, Inner House) delivered on 27 March 2012 by Lord Marnoch is in relation to an appeal by South Lanarkshire Council (“the Council”) against decision 056/2011 of the Scottish Information Commissioner (“the Commissioner”).  It concerns a request for information made pursuant to the Freedom of Information (Scotland) Act 2002 (“FOISA”) by Mr Mark Irvine relating to the number of individuals employed by the Council placed at specific points in the pay structure.

The full facts of the case are set out within the Commissioner’s decision.  The Council, after initially ruling Mr Irvine’s requests as vexatious, withheld the information sought by Mr Irvine on the grounds that it was personal data and to disclose the information would be a breach of the Data Protection Principles.  This exemption is provided for within Section 38 of FOISA, specifically the Council applied Section 38(1)(b) of FOISA to the information sought by Mr Irvine.  The Commissioner found that the Council had incorrectly applied Section 38(1)(b) of FOISA and he ordered the Council to disclose the information to Mr Irvine.  The Council exercised its right under Section 56 of FOISA and appealed to the Court of Session.

One of the contentions that the Council made to the Court was that the Commissioner had erred in law by failing to identify Mr Irvine’s “legitimate interest” in obtaining the information sought.  There is not normally a requirement under FOISA to consider the interests or reasons behind a request for Information under FOISA.  However, Schedule 1 to the Data Protection Act 1998 (“DPA”) places an obligation upon the “data controller” (in this case the Council) to ensure that the processing of information is fair and lawful.  It goes on to provide that the data should not be processed unless certain conditions are met.  It should be noted that in this case processing the data would be its disclosure under FOISA.  Relevant in this case is paragraph 6(1) of Schedule 2 to the DPA.  It provides that the data can be processed if it is necessary for the purposes of a legitimate interest of the data controller, or any third party to whom the information would be disclosed (in this case Mr Irvine and the world at large).   There is an exception to this and that is where the processing would be “unwarranted…by reason of prejudice to the rights and freedoms or legitimate interests of the data subject.”  The data subjects in this case would be the employees who fall within the information sought by Mr Irvine.

In essence the Council had to, on this occasion (and unusually in FOISA requests), consider what legitimate interest Mr Irvine had to the information sought.  Furthermore the disclosure of the information had to be “necessary” for the pursuance of that legitimate interest.  The Council also contended that the Commissioner had failed to separately consider the necessity of the disclosure to Mr Irvine’s pursuance of any legitimate interest identified.

The Court of Session rejected both of these arguments.  It found that when viewing the Commissioner’s decision as a whole the Commissioner had identified a legitimate interest and the Court agreed with that legitimate interest.  Furthermore the Court also held that “the Commissioner could only have concluded that necessity was made out.”  Disappointingly, the Court of Session did not say one way or the other whether the Commissioner’s approach in deciding this was correct.  They were satisfied that even had the approach, applying a stricter test, advocated by the Council been followed, necessity would have been made out.

The Court of Session refused the appeal by the Council and upheld the decision of the Information Commissioner.  It remains to be seen whether the Council will further appeal to the United Kingdom Supreme Court.  Such an appeal would need to be filled within 42 days of the Court of Session’s decision and with the leave of the Court of Session.

POSTSCRIPT: 15/04/2013 – South Lanarkshire Council has appealed to the United Kingdom Supreme Court.  The case is due to be heard by that court on 8 July 2013.

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