Appeal By William Frederick Ian Beggs Against The Scottish Information Commissioner
| Jurisdiction | Scotland |
| Judge | Lady Dorrian,Lord Justice Clerk,Lord Bracadale |
| Judgment Date | 03 March 2015 |
| Neutral Citation | [2015] CSIH 17 |
| Court | Court of Session |
| Date | 03 March 2015 |
| Published date | 03 March 2015 |
| Docket Number | XA80/14 |
SECOND DIVISION, INNER HOUSE, COURT OF SESSION
[2015] CSIH 17
XA80/14
Lord Justice Clerk
Lady Dorrian
Lord Bracadale
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE CLERK
In the appeal by
WILLIAM FREDERICK IAN BEGGS
Appellant;
against
THE SCOTTISH INFORMATION COMMISSIONER
Respondent:
Act: Party
Alt: Johnston QC; Anderson Strathern LLP
3 March 2015
Statutory Provisions and Introduction
[1] The Freedom of Information (Scotland) Act 2002 (FOISA) provides (s 1) that:
“A person who requests information from a Scottish public authority which holds it is entitled to be given it by the authority.”
Information is defined (s 73) as meaning “information recorded in any form”. The general entitlement to information does not apply (s 2) to “information which is exempt information by virtue of any provision of Part 2” where the provision confers an “absolute exemption”. The absolute exemptions include (s 2(2)) information “which the applicant can reasonably obtain” other than by means of a FOI request (s 25(1)). They also include information constituting personal data, as defined by the Data Protection Act 1998 (DPA), of which the applicant is the data subject (s 38(1)(a)). In terms of the DPA (s 7), a data subject is entitled to have “communicated to him in an intelligible form … information constituting any personal data” by the data controller (s 7(1)(c)).
[2] Where, in relation to a FOI request, a public authority “claims that, by virtue of any provision of Part 2, the information is exempt information” (s 16(1)), it
“must, within the time allowed…for complying with the request, give the applicant a notice in writing (…”a refusal notice”) which –
(a) discloses that it holds the information;
(b) states that it so claims;
(c) specifies the exemption in question; and
(d) states (if not otherwise apparent) why the exemption applies.”
An authority does not require to comply with a request which is “identical or substantially similar” to any earlier request, with which it has complied (s 14(2)).
[3] A person, who is dissatisfied with the way in which the authority has dealt with a FOI request, may require that authority to “review” its actions and decisions (s 20(1)). In carrying out a review, the authority may confirm or modify its original decision or substitute a different decision (s 21(4)). If the person is dissatisfied with the result of the review, he may apply to the respondent for “a decision whether, in any respect specified in that application, the request for information…has been dealt with in accordance with Part 1” of the Act (s 47(1)). The authority must be notified of the application and invited to comment (s 49(3)(a)).
[4] Where the respondent decides that the public authority has not dealt with a request for information in accordance with Part 1 of the Act, the decision notice must specify (s 49(6)):
“(a) the provision of that Part with which the authority has failed to comply and the respect in which it has so failed;
(b) the steps which, in the opinion of the Commissioner, the authority must take to comply with the provision; and
(c) the time within which those steps must be taken.”
An appeal from the respondent lies to this court “on a point of law” (s 56).
[5] The appellant appeals against a decision of the respondent dated 2 May 2014 concerning requests for information made by him to the Scottish Prison Service (SPS) under the FOISA. Rather unusually, the appellant has already obtained all of the requested information, by virtue of a subject access request (SAR) under the DPA. The SAR was made prior to the respondent’s decision, but after the SPS’s responses to the requests for information and review. The decision was partly in the appellant’s favour, in respect that the respondent found that the SPS had failed to respond timeously to one of the appellant’s requests (infra) and had erred in maintaining that they did not need to respond to it because they had already responded to an identical earlier request (FOISA, s 14(2)). The SPS were not required to take any steps in respect of the identified failures (s 49(6)(b)) because the appellant had already obtained the requested information. The respondent found against the appellant, however, in determining that the SPS had been entitled to withhold the information requested because it could reasonably be obtained by other means (ie it was exempt under s 25(1)). The appellant appeals on the basis of alleged “fundamental errors of law” in the respondent’s decision. The issue in the appeal is whether such errors have been shown to exist.
Facts
The first request under the FOISA
[6] On 4 July 2013, the appellant requested a copy of the “handwritten and transcribed notes” of an Internal Complaints Committee (ICC) meeting held on that day at HM Prison, Edinburgh. The merits of the complaint, which related to the prompt delivery of the appellant’s mail, are not of direct relevance. The appellant was present at the meeting and must be taken to be aware of what happened at it.
[7] On 8 July 2013, the SPS advised the appellant that “this” would be included as part of the “response” to his complaint. The response, which was sent on the next day, bore to be a typewritten account of the meeting, at which the appellant’s complaints had essentially been upheld. Specifically in relation to the requested notes, however, the response explained that:
“There is no necessary requirement for [the notetaker’s] personal notes or any other person’s personal notes to be sent to you. These notes are used to complete the attachment to the [complaint form] which details the events of the hearing which is sent to you. These notes are disposed of after the hearing.”
[8] On 18 July 2013, the appellant requested that the SPS review their decision to decline to comply with his request. On 21 August 2013, in the absence of a reply, the appellant applied to the respondent for a decision in respect of the handling of his request (s 47(1)). Eventually, on 2 October 2013, the SPS replied, stating that the SPS accepted that their original response not only failed to comply with the statutory requirements but also contained factual errors; including the indication that the notes had been destroyed. The SPS claimed, however, that the notes were a record of the appellant’s complaint to the ICC and therefore constituted personal information, which was exempt from disclosure (s 38(1)). The appellant was advised that he could obtain the information by making a SAR under section 7 of the DPA. This is what he ultimately did (see infra).
[9] On 13 January 2014, the appellant made a further application to the respondent about the SPS’s eventual response, on the basis that the SPS had improperly relied on the stated personal data exemption (ie s 38(1)) in order to withhold the requested information (ie the notes). The appellant contended that the notes would contain much information that was not personal to the appellant, such as references to the SPS’s policies and procedures. On 4 March 2014, the appellant accepted that he had received the notes relating to the meeting of 4 July 2013, which is what he had originally requested.
The second request under the FOISA
[10] Meantime, on 19 September 2013, the appellant had requested “all and any information contained within the notetaker’s notes” of another ICC meeting held on that day at HM Prison, Edinburgh. The subject matter of the meeting is, again, not relevant to the appeal. On 24 October, the appellant requested a review by the SPS in light of their failure to respond. On 8 November, the SPS admitted that they had failed to respond timeously to the request, but they declined to comply with the request on the basis that it was “identical” to an earlier request dated 25 July 2013 (not the subject of this appeal), with which they had already complied (s 14(2)). In relation to the request of 25 July, as in relation to the first request (supra), the SPS had claimed that the information was covered by the DPA and required a SAR. On 4 December 2013, the appellant applied to the respondent for a decision on the basis (in part) that the SPS had misapplied section 14(2). The appellant maintained that the meeting of 19 September had dealt with different matters from that referred to in the request of 25 July.
[11] On 7 January 2014, an investigating officer of the respondent wrote to the SPS seeking comments on the appellant’s application, including whether the SPS wished to continue to rely on section 14(2), which appeared to her not to apply in light of the different nature of the earlier request. The SPS conceded that they no longer sought to rely on this exemption. On 12 February, the investigating officer advised the appellant that the SPS sought to rely instead on section 38(1), for the same reason as they had done with the first request.
[12] On 18 February 2014, the investigating officer provided the appellant with a summary of the SPS’s submissions, including their reliance on section 38(1) and their contention that the notes contained personal data in terms of the DPA. It stated specifically that the SPS were relying on the fact that the appellant had been provided with the information under the SAR. On 6 March, the appellant made his own submissions to the respondent. He accepted that he had already obtained the information via the SAR, which he said had been “submitted explicitly without prejudice to [his] right to obtain any ‘information’ contained therein pursuant to” the FOISA. The appellant maintained that the disclosure of the notes pursuant to the DPA “at a cost and months after the written request being pursued via [the FOISA], has no bearing on the obligation on the [SPS]…to provide the information, not being exempted, pursuant to [the FOISA]”. He accepted, however, that it was “no longer necessary to ask the [respondent] to require the [SPS] to provide the information”.
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