In the world of Freedom of Information in Scotland decisions of the Court of Session are rare, and on 21 January 2014 the Court of Session delivered its decision in the case of Beggs v Scottish Information Commissioner and the Chief Constable of Strathclyde Police.

Background

Mr Beggs wrote to Strathclyde Police on 7 July 2010 to request information from the Chief Constable concerning the investigation into a murder for which he was convicted in 2001.  The way in which Strathclyde Police had handled the request was considered by the Commissioner in decision 88/2011 in which the Commissioner required Strathclyde Police was required to carry out a review of certain aspects of Mr Beggs request.  It should be noted that throughout the Commissioner’s decisions, Mr Beggs is known simply as ‘Mr G’.  Following that review, Mr Beggs applied to the Commissioner again for a decision in terms of section 47(1) of the Freedom of Information (Scotland) Act 2002 (“FOISA”).  The Commissioner duly investigated that application, and that resulted in decision 251/2011 in which the Commissioner found that Strathclyde Police were correct to withhold the information under section 34(1) of FOISA and that they did not hold any further information in respect of parts of the request.

Mr Beggs appealed the decision to the Court of Session under section 56 of FOISA, such appeals can be on a point of law only (which is one of the ways in which FOISA differs from the Freedom of Information Act 2000 which covers UK public authorities).

The Exemptions

The exemptions cited by Strathclyde Police were contained in section 34 and section 35 of FOISA, both of which are exemptions which are subject to the public interest test; that is, the exemptions fall away where the public interest in maintaining the exemption is less than or equal to the public interest in releasing the information.

Arguments by Mr Beggs

Mr Beggs sought to argue that the Commissioner had erred in law in respect of his consideration of the public interest.  Counsel for Mr Beggs argued that the interpretation and application of the public interest was a matter of law.  Counsel for Mr Beggs argued that in respect of the various public interest factors which were considered by the Commissioner were not given the appropriate weight to them; that is, some of those factors ought to have been given a greater weight by the Commissioner than they were.

Sections 34 and 35 of FOISA clearly exist to protect the interests of justice; they exist to prevent information being released that might harm law enforcement and the judicial process.  Counsel for Mr Beggs argued that following the conclusion of a trial the level of force that protecting these interests have diminishes after the trial.  It was also argued that by focusing on generalised factors, and by not giving consideration to the specific circumstances in this case, the Commissioner had erred in law.

Arguments by the Commissioner

In respect of Mr Beggs’ arguments relating to the weight that the Commissioner ought to apply to the various public interest factors, the Commissioner argued that an error of law would not arise unless it could be shown that it was perverse or irrational.  Counsel for the Commissioner argued that no such evidence had been given.  Counsel for the Commissioner argued that smply because they were general didn’t meant that they were not relevant, and that Mr Beggs had placed before the Commissioner no specific arguments himself.

In responding to the reduction of the weight to be attached to the exemptions, Counsel for the Commissioner pointed to section 58 of FOISA which makes provision for some expiations “falling away”; in respect of section 35, FOISA provides that the exemption continues to apply for a period of 100 years.

Decision of the Court

The Court dismissed Mr Beggs’ contention that the Commissioner had failed to give sufficient weight to the various factors in this case.  The Court sets out the detail in which the Commissioner sets out the reasons for his decision and concludes that there was nothing perverse or irrational.  The Court stated at paragraph [15] that:

this ground of appeal amounts to is that the appellant does not agree with the weight which the Commissioner has attached to the various factors before him.  Such disagreement as to weight, in the absence of perversity or irrationality, does not amount to an error of law. It does not constitute “an appeal on a point of law” for the purpose of section 56 of the Act.

At Paragraph [20] of their judgment, the Court dismisses the argument that the “that the public interest in maintaining the exemption diminishes with the passage of time”.  In doing so it points to the provisions of FOISA in respect of section 35, and the terms of the explanatory notes in respect of section 34.

The entire appeal was dismissed

Comment

This was an interesting case dealing with the public interest test contained with FOISA.  Many of the exemptions are subject to the balancing of the public interest.  In doing so, public authorities are required to satisfy themselves that the public interest in maintaining the exemption outweighs the public interest in releasing the information.  The test places the burden of proof entirely with the public authority.  Having the burden of proof with the authority is both fair and reasonable; after all, it is the authority that has access to the information and is seeking to prevent its disclosure.  It is difficult, if not impossible, to argue the public interest for a position of complete blindness.

Paragraph [20] of the Courts judgment does appear to be rather interesting.  The notion that the public interest in maintaining an exemption diminishes with time has been almost universally accepted; indeed it even features in the Commissioner’s guidance on the public interest test (page 5).  It would seem odd if the Court is interpreting the legislation in a way that it clearly never was intended to be construed.  The whole purpose of the public interest test is to ensure that information is only withheld when it is in the public interest to do so.  It will often be the case that the public interest in maintaining the exemption thirty or forty years after the information was created will be very different to what it was thirty or forty days after it was created.  In respect of section 35, my reading of section 58 leads me to the conclusion that the information that is part of that class is exempt (subject to the consideration of the public interest) for a period of 100 years; once 100 years have elapsed the exemption ceases to apply and there can be no question as to whether it is in the public interest or not.  I am not at all sure what the Court meant in paragraph [20], but I don’t think that it would have meant what it appears it said.

Of course what paragraph [20] means rests on the arguments put before the Court, and the Court has provided little in the way of detail on the arguments advanced by Counsel.  It is clear from the legislation that Parliament intends the exemption to cover all information falling within the class of information for a period of 100 years; however, it is equally clear that Parliament intended that information falling within the class protected at section 35 could be released before this period is up by making it a qualified (as opposed to an absolute) exemption.  It is necessary to try and read between the lines in order to attempt to fully understand what the Court was saying.

It would appear that perhaps Counsel for Mr Beggs was attempting to argue something slightly different; his Counsel appeared to be suggesting that post-trial there is very little interest in keeping the information secret.  That is not a position that I would agree with, even if the legislation did not make it abundantly clear that such a position was not open.  There is a strong public interest inherent in sections 34 and 35, and quite rightly it should take a very forceful argument to dislodge the exemption upon application of the public interest.  Undoubtedly though, the closer one gets to the 100 year mark set out in FOISA, the more the public interest in maintaining the exemption reduces.  Of course The very nature of the public interest test is such that it will entirely depend upon the facts and circumstances of individual cases.

I would be very interested to hear others thoughts on the judgment.  If you have any, please feel free to stick them in the comments section below.

• FOISA
• Freedom of Information
• Scots Law
• Scottish Information Commissioner