An Unnecessary FOI Appeal?

South Lanarkshire Council have lost what seems to me to have been a rather unnecessary, and surely rather costly, FOI case in the Supreme Court. That said, the judgment is important reading.

It is well-established that, for disclosure of personal data to be lawful under Freedom of Information law (both the Freedom of Information Act 2000 (FOIA and the Freedom of Information (Scotland) Act 2002 (FOI(S)A) it will normally be necessary to satisfy the test in the sixth condition of Schedule Two of the Data Protection Act 1998 (DPA)

The processing is necessary for the purposes of legitimate interests pursued by the data controller or by the third party or parties to whom the data are disclosed, except where the processing is unwarranted in any particular case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject.

Disclosure is, by section 1(1) of the DPA, an act of “processing”.

It is also well-established (indeed, one might almost say it is trite law), that “necessary” in that condition is to be construed in accordance with the relevant European authorities. As the High Court held, in the MPs’ expenses case

‘necessary’ within para 6 of Sched 2 to the DPA should reflect the meaning attributed to it by the European Court of Human Rights when justifying an interference with a recognised right, namely that there should be a pressing social need and that the interference was both proportionate as to means and fairly balanced as to ends. Corporate Officer of the House of Commons v The Information Commissioner & Ors [2008] EWHC 1084 (Admin)

For reasons which are not entirely clear to me (but I’m not a Scottish lawyer) (in fact, I’m neither Scottish, nor a lawyer) the Court of Session in Scotland said, when hearing an appeal from South Lanarkshire Council of a decision by the Office of the Scottish Information Commissioner (OSIC) to order disclosure of information on how many of the total number of a certain post were placed at specific points in the pay scale, that it saw the force of a submission by counsel for the Council that

the word “necessary” should be accorded its ordinary and natural meaning, with the opening phrase being understood as imposing a distinct requirement

and that

but for the authority [of the MPs expenses case], we would have had little hesitation in giving effect to it

but they didn’t even need to reach a concluded view on this, because it was clear that, in this case, whatever construction was given to “necessary”

the Commissioner could only have concluded that necessity was made out. In particular, he held that the Requester’s own interest coincided with a widespread public interest in the matter of gender equality and that it was important to achieve transparency on the subject of Equal Pay. No better means existed to achieve that goal than by releasing the information in question

Apparently grabbing at that tiny bone thrown them by the Court of Session, the Council appealed to the Supreme Court. The hearing was three weeks ago, and judgment has been handed down today (which strikes me as rather quick) unanimously dismissing the Council’s appeal. At the time of the hearings The Herald reported that the Supreme Court had “slapped down” the Council

A cash-strapped Labour council has been scolded by one of the UK’s most senior judges for “dancing on the head of a pin” with “Alice In Wonderland” legal arguments, which have cost taxpayers thousands of pounds.

Anyone with any experience of litigation knows that it is a dangerous game to predict the outcome on the basis of the apparent approval or disapproval of your argument by the judge – often the strongest argument will be given the heaviest interrogation – but it does appear that, in this case, The Herald wasn’t taking too much of a gamble in anticipating the outcome. Lady Hale, giving the leading judgment, agreed with the Council that

the word “necessary” has to be considered in relation to the processing to which it relates. If that processing would involve an interference with the data subject’s right to respect for his private life, then [Rechnungshof v Ősterreichischer Rundfunk (Joined Cases C-465/00, C-138/01 and C-139/01) [2003] 3 CMLR 265] is clear authority for the proposition that the requirements of article 8(2) of the European Convention on Human Rights must be fulfilled

but in this instance, although disclosure of the information would be “processing” of “personal data” by the Council (as the Council itself could identify those to whom the data related), the requester (nor any other third party) would not be able to identify the data subjects. Accordingly

as the processing requested would not enable Mr Irvine or anyone else to discover the identity of the data subjects, it is quite difficult to see why there is any interference with their right to respect for their private lives

And Lady Hale disagreed with the Council on the construction of “necessary”

all that has to be asked is whether the requester is pursuing a legitimate interest in seeking the information…and whether he needs that information in order to pursue it. It is well established in community law that, at least in the context of justification rather than derogation, “necessary” means “reasonably” rather than absolutely or strictly necessary…necessity is well established in community law as part of the proportionality test. A measure which interferes with a right protected by community law must be the least restrictive for the achievement of a legitimate aim. Indeed, in ordinary language we would understand that a measure would not be necessary if the legitimate aim could be achieved by something less 

As the requester was clearly pursuing a legitimate interest, and this could only be met by disclosure under FOI(S)A the appeal had to fail, and the information falls to be disclosed. It is difficult to see how any other outcome, following the domestic and European authorities, could have ensued.

This does leave unanswered what the outcome would be if, for instance, no legitimate interest were advanced by a requester and/or the data subjects could be identified. In this instance, the OSIC had sought clarification of the requester’s purposes, in an investigation which the Supreme Court held was not in breach of the rules of natural justice, despite a failure to involve the Council in the correspondence. As a blogger activist the requester, Mr Irvine, could clearly point to a legitimate interest – a “serious, ongoing interest in equal pay matters”, but Lady Hale observed that

for example, if Mr Irvine had asked for the names and addresses of the employees concerned, not only would article 8 have clearly been engaged, but the Commissioner would have had to ask himself whether his legitimate interests could have been served by a lesser degree of disclosure

 In European Commission & United Kingdom v Bavarian Lager (Case C-28/08 P) the European Court of Justice found that the European Commission had not erred in refusing to disclose, under the EU Access Regulation, the identities of people attending a meeting, because the company requesting it had not been able to advance a legitimate interest in disclosure (see the excellent Panopticon post on this). FOI was traditionally said to be “applicant blind”, with a requester not needing to advance a purpose for asking for information, but, as these “personal data” cases (and others not relating to personal data – the “social watchdog” argument in the ongoing litigation involving Dominic Kennedy and the Charity Commission) show that motivation can be a determining point when it comes to disclosure under FOI.


Filed under Data Protection, FOISA, Freedom of Information, human rights, Uncategorized

2 responses to “An Unnecessary FOI Appeal?

  1. Robert Wyllie

    In this context the difference between Scottish and other jurisdictions in terms of the ability to appeal to the Supreme Court is relevant. It might well have been that had the public authority not been in Scotland the appeal would never have been allowed to be argued.

    For reasons identified (and viewed rather less than approvingly) by the Court in Uprichard [2013] this is not the case in Scotland (see para 58 onwards):

    Click to access UKSC_2012_0034_Judgment.pdf

    The point has arisen again in Apollo Engineering [2013] (see para 29)

    Click to access UKSC_2013_0038_Judgment.pdf

    • Thanks Robert. That’s a very good point. Para 58 of Uprichard copied here for others’ information:

      “By virtue of section 40(3) of the Constitutional Reform Act 2005, an appeal lies to this court from any order or judgment of a court in Scotland if an appeal lay from that court to the House of Lords at or immediately before the commencement of that section. The effect of that provision is that, subject to certain statutes under which an appeal from the Court of Session lies only with the permission of the Court of Session or the Supreme Court, the general rule is that an appeal against a judgment on the whole merits of a cause lies to this court from the Inner House of the Court of Session without leave. That is a privilege which is not enjoyed by litigants in any other part of the United Kingdom”

      So it’s not just, as I was thinking, that there is no appeal in Scotland to an Information Tribunal, which in E+W+NI allows a thorough reconsideration of merits. It’s also the case that it’s easier to get a FOI(S)A case to the Supreme Court, in circumstances where an E+W+NI case might be refused permission.

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