The effect of the important Court of Session decision in freedom of information in the Glasgow and Dundee appeals, and some related developments from south of the border

The Freedom of Information (Scotland) Act 2002 is an important piece of legislation, affording members of the public a means to access information held by Scottish public authorities. The Court of Session recently issued an important judgment, Glasgow City Council and Dundee City Council v Scottish Information Commissioner [2009] CSIH 73 (30 September 2009), which found in favour of two councils (Glasgow and Dundee) who had been subject to information requests from a firm of solicitors under s 8 of the Act.

While this case may have involved two local councils, the concept of a Scottish public authority is not restricted to these entities. The term encompasses disparate bodies such as health boards, the Crofters Commission and indeed the body that passed the Act itself, the Scottish Parliament, to name but a few, so the judgment’s importance should not be understated.

Assisted searching

The solicitors acted for a private search firm (its identity was not disclosed at the time of the requests), whose business is to provide information (for a fee) about land and buildings in Scotland. Scottish councils charge a fee for providing, in the form of property enquiry certificates, details of what planning permissions and the like affect a building, but the search firm wished to short circuit any chance to levy a fee and force the councils to provide all relevant data held by the councils. In turn, such data could be included in a wider package of information about specific buildings to be sold to third parties, who would ordinarily buy such a search on the sale of land.

It was reported that the effect of a compulsory disclosure would have a significant impact on the councils’ revenue streams, basically forcing the councils to disclose information to a private sector competitor for nothing. Despite such concerns (and various other representations), the Scottish Information Commissioner (“the Commissioner”) ordered disclosure. The councils successfully appealed the Commissioner’s decisions.

There were several key points the court had to contend with.

1. Was this a request for information in terms of the Act?

The court distinguished “information” from “records” for the purposes of the Act, and looked to comparable overseas legislation from Australia, New Zealand, the USA and Ireland for guidance. “Put shortly, the Act provides a right to information, not documentation.” Here, the solicitors had requested copies of statutory notices, i.e. copies of records containing information, rather than the information itself. Lord Reed diplomatically noted that the request “was, at best, somewhat ineptly expressed”, but in fairness to the solicitors “the requests had been drafted advisedly”, i.e. the solicitors’ client specifically wanted the copies of the notices, “rather than the information which they contained and which might also be obtainable from other records”.

Lord Reed continued, noting: “The Commissioner might have sought clarification of whether what was actually sought was copies of the notices, or the information contained in the notices, but did not do so. Instead,… he proceeded on the basis that what had been requested was copies of the notices, that such requests fell within the scope of s 1, and that it would be insufficient for the first appellants to provide, in another form, the information which the notices contained. That approach was in our opinion mistaken.”

An argument that this was too legalistic an approach to interpretation was rejected. Essentially, any future freedom of information request needs to be looked at very carefully to see what it actually asks for.

The court also noted that information does not include unrecorded information, which is an important reminder that public authorities cannot be forced by the Act to proactively produce information on the back of a request.

2. Was the information readily available?

It was argued that the information contained in property enquiry certificates was reasonably obtainable under s 25 of the Act, and therefore exempt. The Commissioner rejected this on the sole basis that the request specifically asked for copies of extant notices as opposed to property enquiry certificates, but as noted in 1 above, this approach conflated information with documents and therefore fell.

3. Was a specific copy needed when the request asked for this?

As it was an appeal the court refused to be addressed on a new point about the different information contained in a property enquiry certificate as compared to the relevant copy notice, which narrow distinction had, it was conceded, not affected the Commissioner’s decision. The important issue here was an argument based on s 11 (asking the authority to provide information in the manner requested). This also fell, as s 11 is predicated on a valid information request.

In addition, the court seemed distinctly unimpressed with the argument that a copy of a specified document (or a document in a specified format) was needed when a request appeared to have been made under s 11, but did not express a concluded opinion on the point.

4. Was there a suitable publication scheme?

The court went on to note that the publication scheme adopted by the council, which provided a system for the disputed information to be accessed and had been separately approved by the Commissioner under s 23, was within the s 25 exception as otherwise accessible information. What was requested was already available “in accordance with the authority’s publication scheme” (as required by s 25(3), such scheme involving an (approved) fee). The Commissioner was not at liberty to look at the costs involved when considering the s 25 exemption (there is no discretion built in to the section, which the court noted is “not a model of clarity”). Any cost issues, or indeed other issues, with a publication scheme are to be considered by the Commissioner and a public authority when the scheme is being approved.

5. The position of the applicant

Another issue was whether the information sought by the applicant, being a professional search firm (i.e. not the solicitors who applied on its behalf) was “information which the applicant can reasonably obtain other than by requesting it under s 1(1)”, and as such “exempt information”. This is very much a personalised test, and the standing of the applicant is looked to here. It was noted that other (competitor) private search firms already scoured publicly available registers and minutes of relevant council meetings for the information this particular private search firm sought.

The court took guidance from a Ministry of Justice publication (Freedom of Information Guidance Series (2008)), and made reference, with approval, to a passage which noted as an example of a potentially relevant factor: “any enhanced skills or resources the applicant may have which would bring otherwise inaccessible information within his reach – for example research, technical or linguistic skills. The resources available to a requestor who is a Member of the Scottish Parliament were taken into account in HM Treasury v ICO [HM Treasury v Information Commissioner (7 November 2007) (EA/2007/0001)]”.

The characteristics of the particular applicant should have been considered, and “it was a mistake for the Commissioner, as a matter of principle, to close his eyes to those matters”. The court did concede this was very much a peculiar case.

6. Undisclosed principal?

Having discussed all the above, again the court did not need to consider this point but did so nonetheless. Section 8(1)(b) of the Act requires the applicant to be named, but here the purported applications stated they were made on behalf of an unnamed client. Based on the court’s view of the importance of the characteristics of a particular applicant, this was crucial, and the requests were therefore not valid requests. The court did however note that such requests might not all be refused out of hand, but at least a public authority should advise any agent making a request of the requirements of the Act.

7. Procedural fairness

In making the decision, the Commissioner had undertaken some investigations with other (unspecified) councils, giving little notice or opportunity to comment to the two affected councils. The court held that this was unfair, as the affected councils did not have a “fair crack of the whip” – referring to Lord Russell of Killowen’s observation in Fairmount Ltd v Secretary of State for the Environment [1976] 1 WLR 1255 at 1266.

8. Irrationality, in analysis as to costs of compliance

Glasgow City Council had argued that the costs in complying with the Commissioner’s decision were huge, and as such any duty to disclose could be excused by s 12. Excessive costs, by virtue of a 2004 statutory instrument, are set at the (perhaps modest) level of £600 per request. The council proceeded on the basis that its costs were premised on the provision of information contained in the statutory notices, rather than copies of the notices themselves (which, it will be recalled, was what the Commissioner wanted in terms of his interpretation of “information”). This led to a degree of “cross purposes” – compliance with the request apparently needed copies of the statutory notices, yet the council were allowed to prepare costs on a different basis, and indeed seemed to be encouraged to provide such (irrelevant) information by the Commissioner’s staff. As such the Commissioner acted irrationally, to the detriment of Glasgow City Council.

Widening scope

Against this compelling backdrop, both appeals were allowed. There is much in the opinion of the court to keep in mind, and it highlights how carefully any request should be looked at before anything is in fact divulged. Public authorities should not be afraid of asking for more detail in an application, or of rejecting an application that goes beyond the Act’s clear terms. The Act does contain a 20 day time limit for compliance, but this should not hurry a public authority into unnecessary disclosures.

The same advice applies to anyone working in tandem with the public sector, such as contractors employed by a public authority or a project company in a public private partnership relationship, when assisting a public sector client faced with an information request. This advice may soon be all the more pertinent to such private entities as, in a move welcomed by the Commissioner, the Scottish Government plans to consult (from the spring of 2010) on whether to widen the scope of the Act so as to directly cover bodies such as “contractors who build and maintain schools, hospitals and roads; private prison operators; leisure, sport and cultural trusts set up by local authorities; Glasgow Housing Association and the Association of Chief Police Officers in Scotland” (see 2009/12/08113806). Currently, many contracts have a specific clause dealing with information requests, detailing how a private operator should assist its public sector client. In a perhaps surprising twist, such clauses may also need to operate in the opposite direction.

Contract cases

The Inner House’s decision and the recent ministerial announcement are certainly not the only developments in this rapidly evolving area of law. A decision south of the border has also gone some way to strengthening the public’s right to access information, but interestingly was not based on the (English equivalent) Freedom of Information Act 2000. Veolia ES Nottinghamshire Ltd v Nottinghamshire County Council [2009] EWHC 2382 (Admin); The Times, 15 October 2009 allowed the public to inspect and copy the contract for a waste management PFI, which had previously been partially disclosed following a request under the 2000 Act. The compulsion for such disclosure is found in s 15(1) of the Audit Commission Act 1998, and the contractor’s attempt to block disclosure has been described (perhaps confusingly) by a BBC blogger as a “reverse-FOI” (Martin Rosenbaum, “Veolia and the reverse-FOI” 1 October 2009, at Rosenbaum’s Open Secrets blog also suggests that the Local Authority Accounts (Scotland) Regulations 1985 may apply to analogous situations in Scotland, the relevant provision being reg 5 (Martin Rosenbaum, “Council finances briefly open”, 4 July 2008, at blogs/opensecrets/2008/07/council_finances_briefly_open.html).

For completeness, mention should also be made of two key decisions made by the Commissioner in 2009. In Decision 122/2009 (Mr Alex Neil and South Lanarkshire Council), the Commissioner held that the financial model from a schools PPP was properly withheld under s 36(2) of the Act, “on the basis that it was information supplied by a third party and disclosing it would constitute a breach of confidence which could give rise to a court action”. This contrasts with the earlier Decision 104/2009 (Unison Scotland and the Scottish Prison Service), where the Commissioner did order disclosure of the, somewhat dated, financial model for the PFI contract for Kilmarnock Prison. Here, the Commissioner felt the commercial sensitivity exemption under s 33 of the Act was not applicable, as the market had sufficiently moved on since 1997 that the private operator’s commercial interests would not be prejudiced by disclosure.

Proper lessons

It is clear that the Act is a useful tool to access information, but it is not a blunt instrument and the Inner House’s decision makes clear it should not be treated as such. From a public authority’s perspective, an incomplete understanding of the Act could lead to inappropriate disclosure, which could result in embarrassment or, in a worst case scenario, a degree of self-incrimination. As for those seeking information, inappropriately framed requests could lead to frustration or delay in finding out important facts.

Some regard the Inner House’s decision as damaging to the public’s right to information (as reported in the Sunday Herald: “FoI ruling hurts public right to know”, 4 October 2009), but the key lessons to take from the decision are to make appropriate FOI requests framed in an appropriate manner. Despite the negative press response to the decision, further developments are already showing the public’s right to know to be in a fine state of health. The Commissioner may soon be a very busy individual indeed.

Malcolm Combe is a solicitor with Tods Murray LLP

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