On 2 June 2014 the Scottish Information Commissioner issued a decision notice finding that Dunbritton Housing Association Limited, a Registered Social Landlord (“RSL”), was a Scottish public authority for the purposes of the Environmental Information (Scotland) Regulations 2004 (the Scottish EIRs). In that decision the Commissioner ordered the Housing Association to conduct an internal review and to respond to the requester accordingly. Dunbritton Housing Association did not appeal that decision to the Court of Session, as was open to it.
It transpires that Dunbritton Housing Association complied with the Commissioner’s decision and conducted an internal review. It released some information and withheld the remainder under Regulations 10(5)(e) and Regulation 11(2) of the Scottish EIRs. The requester made a fresh application to the Commissioner seeking a decision on two matters: (1) whether Dunbritton had identified all of the information falling within the scope of the request; and (2) whether Dunbritton Housing Association was correct to apply the exceptions that it had.
What is interesting is that after not appealing the Commissioner’s decision to the Court of Session and after complying with the Commissioner’s decision by conducting a review and responding to the request, Dunbritton again tried to argue that it was not a Scottish public authority for the purposes of the Scottish EIRs. The Scottish Information Commissioner, once again, decided that it was.
Dubritton referred to the UK Upper Tribunal’s decision in Fish Legal and argued that the control test within both the UK EIRs and the Scottish EIRs was a high one. It contended that although the Scottish Housing Regulator had significant regulatory powers over RSLs like Dunbritton it only utilised those powers where a RSL was failing. It argued that it was therefore not a Scottish public authority for the purposes of the Scottish EIRs.
The Commissioner concluded, correctly, that she is not bound by the UK Upper Tribunal decision and instead looked to the decision of the Court of Justice of the European Union in the Fish Legal case. She determined, for the same reasons as set out in her previous decision that Dunbritton Housing Association is a Scottish public authority for the purposes of the Scottish EIRs.
There are now two decisions of the Scottish Information Commissioner determining that a RSL is a Scottish public authority for the purposes of the Scottish EIRs, albeit involving the same requester and the same RSL. Her decision has expressly been based upon the decision of the Court of Justice of the European Union in one case and in the other was made following that Court issuing its decision. It seems fairly certain that future RSLs that try to argue that they are not Scottish public authorities in applications to the Commissioner will not succeed; although the Commissioner’s decisions are not binding on anyone (including herself), these two decisions begin to show a clear and consistent line of thinking. It is open to Dunbritton to appeal the decision to the Court of Session – whether or not a person is a Scottish public authority is clearly a question of law. It remains to be seen whether Dunbritton does appeal. While an appeal might be successful and create binding case law that RSLs are not Scottish public authorities for the purposes of the Scottish EIRs it could equally go the other way and create binding precedent that states they are. While there is no binding case law it remains possible for Dunbritton or another RSL to convince the Commissioner that she got it wrong in the two previous decisions. At this stage it remains a case of waiting and seeing; Dunbritton have 42 days from the date the decision was intimated to lodge any appeal.