I’m sorry, we can’t confirm or deny that (Part 4)

On Tuesday the Scottish Information Commissioner published her decision on an application by Catherine Stihler MEP pursuant to s.47(1) of FOISA.  The background to this decision can be found here, here and here.

On 12 July 2012 the BBC were reporting that the Scottish Ministers intend to appeal Rosemary Agnew’s decision.  It is a groundbreaking decision by Rosemary Agnew and forces the Ministers to reveal whether they have recieved legal advice on a specific point.

The BBC quote a Scottish Government spokesperson as saying:

It is the longstanding and usual practice of the Scottish government to neither confirm or deny the existence or the content of legal advice.

It is certainly their longstanding and usual practice to neither confirm or deny the existence or content of legal advice recieved by the Ministers.  However, the Freedom of Information (Scotland) Act 2002 requires each request to be considered on its own merits.  In effect, the Scottish Government are suggesting that the existence of legal advice recieved by the Ministers should be neither confirmed nor denied in all circumstances.  Section 18 is clear in its terms and subsection (1) reads:

Where, if information existed and was held by a Scottish public authority, the authority could give a refusal notice under section 16(1) on the basis that the information was exempt information by virtue of any of sections 28 to 35, 39(1) or 41 but the authority considers that to reveal whether the information exists or is so held would be contrary to the public interest, it may (whether or not the information does exist and is held by it) give the applicant a refusal notice by virtue of this section.

The critical element of s.18(1) is that it must be contrary to the public interest to reveal whether the information exists or not.  The public interest must be considered in every request and on occassion it might be found that it is not contrary to the public interest to reveal whether the Ministers have recieved legal advice on a specific matter.

The Commissioner took the view on this occassion that the public interest was in the Ministers confirming or denying whether they held information falling within the scope of the request.  The Ministers cannot rely on the fact that they would normally rely on s.18 in these types of cases.  They need to demonstrate to the Commissioner (and they failed this time) that the public interest lies in not revleaing whether the information is held or not by them.

Appeals to the Court of Session are permitted only on a point of law.  That means the Ministers can only challenge the Commissioner’s decision on the grounds that she erred in her interetation and application of the law.  The Ministers cannot set out to prove the Court of Session that the public interest lies in favour of neither confirming nor denying as that is an issue of fact.  The Ministers would have to demonstrate that the Commisisoner’s understanding of the law was wrong and that resulted in her making the wrong decision.

Of course, the Ministers could simply be deploying a delaying tactic here.  The Ministers have in the past appealed to the Court of Session and then later withdrawn the appeal before it was heard by the Court.  In July 2011 the Ministers did not pursue an appeal that they had lodged over a decision by the then Commisisoner, Kevin Dunion.  The Commissioner had ordered the release of information held by the Scottish Ministers regardig their plan for a local income tax.  The decision that releated to had been issued in February 2011.  More information on that particular case can be read here.

In essence, the Ministers appear to have an uphil struggle.  The fact that it is their normal practice to deploy s.18 in these requests is unlikley to be accepted by the Court of Session because that runs contrary to both the letter and the spirit of FOISA.  Every request must be considered on a case-by-case basis.

Less than three months into the job it appears as if Rosemary Agnew has a Court of Session case on her hands.  Few decision notices are ever appealed.  That is likley to be for a number of reasons.  Firstly, appeals are on a point of law only.  It is not possible simply to appeal because you disagree with the Commissioner’s decision on a factual basis.  Secondly, it is almost impossible for a member of the public to appeal.  It simply costs too much to go to the Court of Session and applicants are handicapped because they don’t get to see the information that the Commssioner’s office recieved during the investigation.

It doesn’t appear as though the Scottish Ministers have actually formally lodged documents with the Court of Session yet, but they do still have more than a month until the deadline to appeal.

This is certainly an interesting development and one to be watched closely.