The Court of Session has issued a rare judgment in respect of an appeal under the Freedom of Information (Scotland) Act 2002 (FOISA). Yesterday the First Division published its judgment in the case of David Gilroy –v– The Scottish Information Commissioner and the Chief Constable of Police Scotland.
The Appellant, David Gilroy, had been convicted of the Murder of Suzanne Pilley at the High Court of Justiciary. Mr Gilroy sought information from the Police Service of Scotland, as the statutory successor to Lothian and Borders Police (who had conducted the investigation to the murder of which Mr Gilroy has been convicted). The information he sought related to CCTV that had been seized by the Police as part of the murder investigation. The Police initially responded by saying that the information sought had been released to Mr Gilroy’s defence team and so he could obtain it that way, but had not complied with the technical requirements imposed in FOISA for a refusal notice. Mr Gilroy required that the Police conducted a review into their handling of the request. In response to the requirement for review, the Police refused the request on the grounds that it was exempt under section 38(1)(a) of FOISA – which provides that information to which the applicant is the data subject of is exempt. This is an absolute exemption and therefore it is not subject to the public interest contained in section 2 of the FOISA. Such information can be sought by way of a ‘subject access request’ pursuant to section 7 of the Data Protection Act 1998. The Police also cited the exemption at section 34(1)(c) of FOISA.
Mr Gilroy made an application to the Scottish Information Commissioner pursuant to section 47(1) of FOISA. The Commissioner issued a Decision in respect of that application (Decision 005/2015) finding that the Police were correct to withhold the information under section 38(1)(a). Section 56 of the FOISA provides a right of appeal to the Court of Session against a decision of the Scottish Information Commissioner on a point of law. Mr Gilroy appealed the decision of the Scottish Information Commissioner to the Court of Session.
The Court of Session’s decision is a short one. The relationship between the Data Protection Act 1998 and FOISA has been the subject of previous litigation and nothing new was brought out in this case. The litigation that has previously occurred in this field has confirmed that the question of whether information is personal data is a factual one. The Lord President (Carloway), in giving the decision of the Court, considered that there was “no identifiable error of law” in the Commissioner’s decision (para ) and that there was no “point of law to be considered” (Para ). The Lord President’s judgment states that Mr Gilroy’s appeal was “essentially an application to this court to review an assessment of fact made by the first respondent”. Mr Gilroy’s appeal was therefore refused by the Court.
The judgment does highlight (once again) the wide scope of the definition of personal data in the Data Protection Act. The Information in question was not stills or footage from the CCTV, but rather a list of images together with details such as location, dates and times. This was considered by the Court to clearly be within the definition of personal data and that the Appellant was the data subject (para ).
The Commissioner did not consider in her decision the question of the application of section 34(1)(c) to the information because it was, in her view, exempt under section 38(1)(a). The Court of Session therefore did not consider it either.
The Court’s judgment can be read on the Scottish Courts and Tribunals website here.