Ben R.palmer V. The Commissioners Of Her Majesty's Revenue And Customs
| Jurisdiction | Scotland |
| Judge | Lord Johnston,Lord Abernethy,Lord Penrose |
| Judgment Date | 16 February 2006 |
| Neutral Citation | [2006] CSIH 8 |
| Court | Court of Session |
| Docket Number | XA2/06 |
| Published date | 16 February 2006 |
| Date | 16 February 2006 |
Opinion of the Court delivered by The Lord President
The Scottish Ministers
v
The Scottish Information Commissioner
(William Alexander's Application)
and
The Scottish Ministers
v
The Scottish Information Commissioner
(David Elstone and Martin Willams's Applications)
SUMMARY
23 January 2007
The First Division of the Court of Session has refused appeals by the Scottish Ministers against decisions made by the Scottish Information Commissioner in respect of applications made to him by (1) Mr. William Alexander and (2) Mr. David Elstone and Mr. Martin Williams.
Mr. Alexander had requested the Scottish Ministers to give him information in relation to advice given to Ministers and in relation to other matters pertinent to why sections 25 to 29 of the Law Reform (Miscellaneous Provisions)(Scotland) Act 1990 had not been brought into force. These sections made provision by which any professional or other body might, subject to certain statutory arrangements, enable its members to acquire rights to conduct litigation on behalf of members of the public and rights of audience in the courts. The Scottish Ministers, with the exception of certain documents which they released, refused that request. Mr. Alexander applied to the Commissioner who accepted as justified some of the objections taken by the Scottish Ministers to the release of information but ordered the release of certain other information held by them. In the appeal against the Commissioner's decision the Scottish Ministers argued that the Commissioner had failed to recognise that in some cases it might be possible, where the exemption in question was based on the prejudicial effect of releasing information, to identify exempt information by reference to classes or groups of documents - without necessarily having regard to their particular content. The court rejected that argument, concluding that in relation to such an exemption it was necessary to proceed by examination of the content of individual documents. A number of other criticisms made by the Scottish Ministers to release of information were also rejected by the court.
Mr. Elstone and Mr. Williams had each requested the Scottish Ministers to give them paperwork/correspondence surrounding the decision of the Scottish Ministers not themselves to decide an application made to North Ayrshire Council for planning consent for a waste disposal and ecological conservation site are at Trearne Quarry, Gateside. Their requests were refused. They each applied to the Commissioner who decided that in some instances the Scottish Ministers had insufficient grounds for withholding the information in question. He ordered the release of that information. In appealing against his decision the Scottish Ministers again argued that the Commissioner had failed to recognise the possibility of identifying exempt information by reference to classes or groups of documents. They also advanced certain other arguments. Again the court upheld the Commissioner's decision.
NOTE
This summary is provided to assist in understanding the Court's decision. It does not form part of the reasons for that decision. The full report of the Court is the only authoritative document.
The full opinion will be available on the Scottish Courts website today at this location:
http://www.scotcourts.gov.uk/opinions/2007CSIH08.html
| FIRST DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord President Lord Nimmo Smith Sir David Edward | [2006] CSIH 8 XA2/06 and XA6/06 OPINION OF THE COURT delivered by THE LORD PRESIDENT in APPEALS by (1) THE SCOTTISH MINISTERS Appellants; against THE SCOTTISH INFORMATION COMMISSIONER (William Alexander's Application) Respondent; and (2) THE SCOTTISH MINISTERS Appellants; against THE SCOTTISH INFORMATION COMMISSIONER (David Elstone and Martin Williams's Applications) Respondent: _______ |
Act: Keen, Q.C., McBrearty; Office of the Solicitor to the Scottish Executive
Alt: Cullen Q.C., M. Ross; Brodies, LLP
23 January 2007
Mr. Alexander's application - Background
[1] On 1 November 1990 the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 received the Royal Assent. By section 75(2) it was provided that its provisions should come into force on such days as the Secretary of State (now the Scottish Ministers) might appoint. Sections 25 to 29 inclusive made provision under which any professional or other body might, subject to certain statutory arrangements, enable any of its members who was a natural person to acquire rights to conduct litigation on behalf of members of the public and rights of audience in the courts. Sections 25 to 29 have not been brought into force.
[2] Mr. William Alexander has an interest in these provisions. On 5 January 2005 he wrote to the Minister for Justice asking to be provided with any information which the Scottish Ministers held regarding the coming into force of sections 25 to 29. The information requested comprised:
(a) information including, but not restricted to, details of any advice given to
Ministers and notes of meetings;
(b) this information to include the source of the suggestion that the
commencement of sections 25 to 29 will be a burden on the courts; whether this view was taken regarding all the courts in Scotland and, if not, which courts;
(c) information about a meeting or meetings with the Lord President, intimated by
officials in January 1997;
(d) information about a request made by Ross Finnie, MSP on 10 January 2003 to
the Justice Minister Jim Wallace, asking for clarification on why a commencement order for sections 25 to 29 of the Miscellaneous Provisions Act had not been brought in by the Executive.
[3] The Scottish Ministers responded by letter dated 7 February 2005 advising Mr. Alexander that the information relating to points (a) and (b) was exempt from disclosure under section 29(1)(a) and (b) of the Freedom of Information (Scotland) Act 2002 ("the 2002 Act"), that information relating to point (c) was not held by the Scottish Ministers and that, subject to certain information already provided to Mr. Alexander, information relating to point (d) was exempt under section 29(1)(b).
[4] Mr. Alexander asked the Scottish Ministers to review their decision. They did so and by letter dated 10 March 2005 maintained their response to points (c) and (d) of the request but, in relation to points (a) and (b), identified 32 documents which were covered by exemptions but which, they concluded, it would be in the public interest to release, in whole or in part, and 6 documents to which no exemption applied and which should therefore be released. In relation to other information held by them and relevant to the request they maintained their position that such information should not be released. In that regard they relied upon a wider range of exemptions than had been relied on earlier.
[5] On 11 March 2005 Mr. Alexander applied to the respondent for a decision as to whether the request for information from the Scottish Ministers had been dealt with by them in accordance with Part 1 of the 2002 Act. Thereafter the respondent carried out his own inquiry, which included an examination of a substantial number of documents which the Scottish Ministers had withheld from Mr. Alexander and an analysis of these documents against the exemptions relied on. On 24 November 2005 the respondent issued his decision on Mr. Alexander's application to him. By that decision he held that certain information held by the Scottish Ministers was such as had justifiably been withheld from disclosure to Mr. Alexander; certain other information he ordered to be released. In that respect he required the Scottish Ministers to provide Mr. Alexander with the documents, in whole or in part, specified in an appendix annexed to his decision. Against that decision the Scottish Ministers have appealed to this court under section 56 of the Act.
The exemptions discussed in the appeal
[6] The exemptions relied on by the Scottish Ministers and discussed in the course of the appeal were those provided for by sections 25(1), 36(1), 28(1), 29(1)(a), 30(b) and 30(c) (arranged in the order in which they are dealt with in the respondent's decision). None of these confers an absolute exemption. Accordingly, the obligation to disclose applies only to the extent that "(b) in all the circumstances of the case the public interest in disclosing the information is not outweighed by that in maintaining the exemption" (section 2(1)). The specified sections are in the following terms:
"25(1) Information which the applicant can reasonably obtain other than by requesting it under section 1(1) is exempt information".
"36(1) Information in respect of which a claim to confidentiality of communications could be maintained in legal proceedings is exempt information".
"28(1) Information is exempt information if its disclosure under this Act would, or would be likely to, prejudice substantially relations between any administration in the United Kingdom and any other such administration."
[Section 28(2) defines 'administration in the United Kingdom' as including 'the Government of the United Kingdom' and 'the Scottish Administration'].
"29(1) Information held by the Scottish Administration is exempt information if it relates to -
(a) the formulation or development of government policy;
... ".
"30 Information is exempt information if its disclosure under this Act -
...
(b) would, or would be likely to, inhibit substantially -
(i) the free and frank provision of advice; or
(ii) the free and frank exchange of views for the purposes of
deliberation; or
(c) would otherwise prejudice substantially, or be likely to prejudice
substantially, the effective conduct of public affairs".
The respondent's approach to the public interest in disclosure
[7] In circumstances where the respondent reached the view that a non-absolute exemption applied, he required to consider the public interest in disclosing the information. He expressed...
To continue reading
Request your trial
-
Langley v R & C Commissioners
...the different expression "controlled waters". Following the Court of Session decision in the case of Palmer v HM Revenue and CustomsTAX[2007] BTC 126 the court would assume that the definition of "offshore installation" in the 1995 Regulations should be read as if the references to "relevan......