FOI timescales decisive for public law claim

An FOI request is used to show when the clock for bringing a claim starts ticking

As I am neither Scottish, not a lawyer, I make a foray into Scottish law with a distinct lack of confidence. However, I notice an interesting* case in the Scottish Court of Session, where the dates relating to a request for information were crucial in deciding whether a claim could continue.

The pursuer (equivalent to the claimant in England and Wales) was Nationwide Gritting Services (NGS), and it is aggrieved at, as it claims, missing out on the opportunity in 2010 and 2011 to tender to supply de-icing salt to Transport Scotland. The preliminary matter before Lord Woolman was whether the claim for breach of the then-in-force Public Contracts (Scotland) Regulations 2006 (“the Regulations”) was time-barred. The key issue, for the purposes of deciding when the time limits for making the claim began (applying the authority of the European Court of Justice in Uniplex (UK) Ltd v NHS Business Services Authority), was to determine the date on which NGS knew or ought to have known of the alleged infringement.

The claim had to be brought within three months of the date when the grounds for bringing the proceedings first arose. NGS served the summons in the present action on 28 August 2012. Accordingly, the critical date is 28 May 2012. The Scottish Ministers contend that NGS had the grounds to bring proceedings prior to that date (¶5)

Although there had been media coverage of salt-procurement matters in 2010, and some contact between an agent of NGS and Transport Scotland in 2010, it was only when another customer stated that Transport Scotland had purchased de-icing salt that NGS decided to make enquiries. On 30 April 2012 it sent an email headed “Formal Request for Information on Procurement Process for Salt” to Transport Scotland. It is not clear whether it cited the Freedom of Information (Scotland) Act 2002 (FOISA) but it appears that Transport Scotland properly treated it as a request under the same, because they replied on 30 May 2012 – the twentieth working day following receipt. Thus, contended NGS, 30 May was the date on which it had the requisite knowledge to bring a claim under the Regulations.

The judge agreed. Although NGS might have had “suspicions” in 2010 and 2011 that Transport Scotland had acquired salt, it had no “hard information”. When it received “hearsay evidence” from its customer it acted to enquire whether this was correct. The wording of its FOISA request (even though it had stated that NGS was “of the opinion” that proper process had not been followed) should not be taken to mean that it had “sufficient information to make an informed decision”. Only on 30 May 2012 had NGS’s suspicions “ripened into hard knowledge”.

Consequently, the claim can proceed:

as at 28 May 2012, NGS only suspected that an infringement has occurred. That suspicion was unsupported. Accordingly the grounds for bringing proceedings had not arisen by that date (¶30)

Of course, on one view this make perfect sense and is uncontroversial. People don’t normally make FOI requests unless they want to receive new information.

I don’t for a second claim the case is ground-breaking, but it is interesting for showing that the strict deadlines applying to FOI requests can potentially be useful for drawing a line in the sands of litigation.

(*Indulge me – happen to find judicial analysis of salt procurement interesting.)

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Filed under FOISA, Freedom of Information

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