William Frederick Ian Beggs V. The Scottish Information Commissioner+the Chief Constable Strathclyde Police Against A Decision Of The Scottish Information Commissioner Dated 16 December 2011

CourtCourt of Session
JudgeLady Clark Of Calton,Lord Clarke,Lord Menzies
Neutral Citation[2014] CSIH 10
Published date21 January 2014
Date21 January 2014
Docket NumberXA11/12

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2014] CSIH 10

Lord Menzies Lady Clark of Calton Lord Clarke

XA11/12

OPINION OF THE COURT

delivered by LORD MENZIES

in the Appeal under section 56 of the Freedom of Information (Scotland) Act

by

WILLIAM FREDERICK IAN BEGGS

Appellant;

against

The Scottish Information Commissioner

First Respondent;

and

The Chief Constable Strathclyde Police

Second Respondent:

against a decision of the Scottish Information Commissioner dated 16 December 2011

_______________

Act: Leighton; Drummond Miller LLP

First Respondent: Lindsay QC; Anderson Strathern LLP

Second Respondent: Barne; Simpson and Marwick WS

21 January 2014

Introduction
[1] The appellant is presently a prisoner within HMP Glenochil, having been sentenced to life imprisonment for the murder of Barry Wallace.
The first respondent is the Scottish Information Commissioner. The second respondent is the Chief Constable Strathclyde Police. By letter dated 7 July 2010 the appellant requested the second respondent to provide the information specified in a schedule attached to the letter. The information sought related to facts and circumstances surrounding the death of Mr Wallace. The information sought was set out under seven general heads. Head (1) related to CCTV footage from cameras located in Kilmarnock. Head (2) related to a CCTV tape identified by reference to nightclub premises in Kilmarnock. Head (7) related to investigations carried out by the police in relation to a line of inquiry suggested by statements given to the police to which the appellant has access. The present appeal is concerned with three items on this schedule, namely (1)(e), (2)(c) and (7). Item (1)(e) sought "such additional information as has been derived from the 'sighting'"(of Mr Wallace on CCTV footage after a particular point); item (2)(c) sought "any information relative to sightings of the deceased, Barry Wallace, or (a named witness) at this locus (e.g. date, time etc.)"; and item (7) sought "all and any information as to steps taken to investigate the veracity of the claims which (a named witness) admitted having made or as to any steps taken to 'eliminate' (this witness) from the inquiry" (which claims, the schedule alleged, related to the witness being in the company of the deceased on the night in question and the suggestion of sexual relations).

[2] By letter dated 6 August 2010 the second respondent wrote to the appellant declining to disclose any of the information requested, on the basis that it was exempt from disclosure by reference to section 34(1)(a) and (b), section 35(1)(a) and (b), and section 38(1)(b) of the Freedom of Information (Scotland) Act 2002 ("the Act"). The appellant requested the second respondent to review this decision, and by letter dated 29 September 2010 the second respondent wrote to the appellant advising that on completion of the review, a decision had been taken to disclose certain of the information requested by the appellant, but this did not include the items referred to above.

[3] In October 2010 the appellant applied to the first respondent for a decision in terms of section 47(1) of the Act, and in May 2011 the first respondent required the second respondent to conduct a further review. By letter dated 27 June 2011 the second respondent wrote to the appellant stating that it had no further information on the first two items, and that in relation to the third item the information was exempt under sections 34(1)(a)(i) and (b) and 35(1)(a) and (b) of the Act. The appellant was dissatisfied with this result, and by letter dated 5 July 2011 he applied to the first respondent for a decision in terms of section 47(1) of the Act.

[4] On 16 December 2011 the first respondent issued decision 251/2011 in response to the appellant's application. The first respondent set out his conclusions on the public interest test at paragraphs 44 to 53 of the decision. On balance he found that the public interest in maintaining the exemptions in sections 34(1)(a)(i) and (b) outweighed that in disclosure of the information withheld from the appellant, and upheld the decision of Strathclyde Police to withhold the information in question. In the decision, the first respondent found that the second respondent was entitled to withhold the information sought, on the grounds that it was exempt from disclosure under section 34(1)(a)(i) and (b) of the Act. It is against this decision that the appellant has appealed to this court, in terms of section 56 of the Act.

The relevant sections of the Act
[5] "1 General entitlement

(1) A person who requests information from a Scottish public authority which holds it is entitled to be given it by the authority.

...

(6) This section is subject to sections 2, 9, 12 and 14.

2 Effect of Exemptions

(1) To information which is exempt information by virtue of any provision of Part 2, section 1 applies only to the extent that-

(a) the provision does not confer absolute exemption; and

(b) in all the circumstances of the case, the public interest in disclosing the information is not outweighed by that in maintaining the exemption.

...

34 Investigations by Scottish public authorities and proceedings arising out of such investigations

(1) Information is exempt information if it has at any time been held by a Scottish public authority for the purposes of-

(a) an investigation which the authority has a duty to conduct to ascertain whether a person-

(i) should be prosecuted for an offence; or

(ii) prosecuted for an offence is guilty of it;

(b) an investigation, conducted by the authority, which in the circumstances may lead to a decision by the authority to make a report to the procurator fiscal to enable it to be determined whether criminal proceedings should be instituted; or

(c) criminal proceedings instituted in consequence of a report made by the authority to the procurator fiscal.

...


35 Law Enforcement

(1) Information is exempt information if its disclosure under this Act would, or would be likely to, prejudice substantially-

(a) the prevention or detection of crime;

(b) the apprehension or prosecution of offenders; ..."

Submissions
[6] Counsel for each of the three parties to this appeal helpfully lodged full written notes of argument, which we do not seek to repeat here.
The submissions for each of the parties may be summarised as follows.

Submissions for the appellant
[7] Counsel for the appellant submitted that the application and interpretation of the public interest test amounts to a point of law.
The first respondent erred in the weight which he attached to the various factors which were before him, and he also erred in adopting general reasons for refusal rather than reasons specific to the present case. These two arguments were connected. Although counsel accepted that it might be said that the weight to be attached to various factors was a matter for the first respondent (and it was accepted that the first respondent was a specialist tribunal, so the first line of argument was difficult to advance), it was a symptom of the generalised approach which was the subject of attack in the second submission. The first respondent required to carry out a balancing exercise having regard to the individual circumstances of the case. In support of this proposition, counsel relied on a decision of the information tribunal in relation to the (English) Freedom of Information Act 2000 - Guardian Newspapers Ltd and Heather Brooke v The Information Commissioner EA/2006/0011, dated 4 January 2007 (particularly at paragraphs 82 to 87). Reference was also made to Export Credits Guarantee Department v Friends of the...

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