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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Dumfries & Galloway Council v Dunion, Scottish Information Commissioner [2008] ScotCS CSIH_12 (08 February 2008)
URL: http://www.bailii.org/scot/cases/ScotCS/2008/CSIH_12.html
Cite as: 2008 SC 327, [2008] CSIH 12, [2008] ScotCS CSIH_12

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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lord Nimmo Smith

Lord Eassie

Sir David Edward, Q.C.

 

 

 

 

 

[2008] CSIH 12

XA217/06

 

OPINION OF THE COURT

 

delivered by LORD NIMMO SMITH

 

in

 

APPEAL TO THE COURT OF SESSION

 

under section 56 of the Freedom of Information (Scotland) Act 2002

 

by

 

DUMFRIES AND GALLOWAY COUNCIL

Appellants;

 

against

 

KEVIN DUNION, SCOTTISH INFORMATION COMMISSIONER

Respondent:

 

against

 

a decision of the Respondent dated 21 November 2006

 

_______

 

 

Act: J.J. Mitchell, Q.C., Blair; Anderson Strathern

Alt: Cullen, Q.C.; Brodies, LLP

 

8 February 2008
Introduction

[1] This is an appeal under section 56 of the Freedom of Information (Scotland) Act 2002 ("FOISA") by Dumfries and Galloway Council ("the Council") against a decision of the Scottish Information Commissioner ("the Commissioner") dated 21 November 2006. What we have to consider is the proper interpretation of, and the interaction between, the relevant provisions of FOISA and those of the Enterprise Act 2002 ("the Enterprise Act"). We shall accordingly start by setting out these statutory provisions.

 

The relevant statutory provisions

FOISA

[2] Section 1(1) of FOISA provides: "A person who requests information from a Scottish public authority which holds it is entitled to be given it by the authority." By subsection (2), such a person is referred to as "the applicant". The Council is a Scottish public authority within the meaning of section 3(1)(a)(i) and paragraph 21 of Schedule 1. Section 1 is, by subsection (6), made subject to four other sections, of which section 2 is relevant for present purposes. This provides by subsection (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."

In Part 2, sections 25 to 41 set out various categories of information which is exempt provided that the information falls within the description applicable to the category in question and the conditions specified in relation to that category are satisfied. Section 26, which relates to prohibitions on disclosure, provides inter alia:

"Information is exempt information if its disclosure by a Scottish public authority (otherwise than under this Act) -

(a) is prohibited by or under an enactment; ..."

Section 35, which is headed "Law enforcement", provides that information is exempt information if its disclosure under FOISA would, or would be likely to, prejudice substantially inter alia (g) the exercise by any Scottish public authority of its functions for any of the purposes mentioned in subsection (2), which include "(a) to ascertain whether a person has failed to comply with the law" and "(c) to ascertain whether circumstances which would justify regulatory action in pursuance of any enactment exist or may arise".

[3] Provisions which are similar, but not identical, to the foregoing are contained in the Freedom of Information Act 2000, which is a United Kingdom statute that does not apply to Scottish public authorities and thus is of no further direct relevance for present purposes. Both Acts came into force on 1 January 2005.

 

The Enterprise Act

[4] Part 9 of the Enterprise Act, which contains restrictions on the disclosure of information, came into force on 20 June 2003. A general restriction is set forth in section 237, which provides inter alia:

"(1) This section applies to specified information which relates to -

(a) the affairs of an individual;

(b) any business of an undertaking.

(2) Such information must not be disclosed -

(a) during the lifetime of the individual, or

(b) while the undertaking continues in existence,

unless the disclosure is permitted under this Part. ...

(6) This Part (except section 244) does not affect any power or duty to disclose information which exists apart from this Part."

Section 248 provides by subsection (1) that information is specified information if it comes to a public authority in connection with the exercise of any function it has under or by virtue of the provisions specified in that subsection. As will be seen, it is not necessary to set forth the detail of those provisions. Section 238(3) contains a definition of "public authority"; the Council is a public authority within this definition. Section 241(1) provides:

"A public authority which holds information to which section 237 applies may disclose that information for the purpose of facilitating the exercise by the authority of any function it has under or by virtue of this Act or any other enactment."

Subsection (2) provides a restriction on further disclosure by the person to whom the information is disclosed. Subsection (3) contains provisions similar to those of subsection (1), authorising the disclosure by a public authority of information to any other person for the purpose of facilitating the exercise by that person of any function he has under or by virtue of the Enterprise Act or certain other specified legislation, subject to a restriction on further disclosure set forth in subsection (4), in similar terms of those of subsection (2). By section 244 a public authority must have regard to two considerations before disclosing any specified information (within the meaning of section 238(1)). The first consideration is the need to exclude from disclosure any information whose disclosure the authority thinks is contrary to the public interest. The second consideration is the need to exclude from disclosure (a) commercial information whose disclosure the authority thinks might significantly harm the legitimate business interests of the undertaking to which it relates, or (b) information relating to the private affairs of an individual whose disclosure the authority thinks might significantly harm the individual's interests. The third consideration relates to the extent to which the disclosure of the information in these two last-mentioned categories is necessary for the purpose for which the authority is permitted to make the disclosure.

 

The request for information

[5] On 9 February 2005 Dr Donald Reid ("the applicant") made a request, under section 8 of FOISA, for certain information from the Council. The request was for details of any complaints lodged in the previous ten years against any or all of a named company, any named directors of the company, and any named employee of the company. The request further specified that the details of the complaints were to include the date on which each complaint was lodged, against whom the complaint was lodged, a brief summary of the nature of the complaint, and the outcome of any investigation undertaken. The applicant made a request in the same terms to each of the other 31 local authorities in Scotland, who responded in various ways.

[6] The Council's response was to issue a refusal notice dated 9 March 2005, referring inter alia to the exemptions from disclosure provided by section 35 of FOISA and Part 9 of the Enterprise Act. After further correspondence, the applicant applied for the Commissioner's decision on this matter on 15 August 2005. The application also contained complaints about responses provided by nine of the other local authorities which were sent the request for information. It appears that the remaining 22 authorities had responded to the requests in terms which satisfied the applicant in one way or another.

[7] After sundry procedure, by decision No. 210/2006, dated 21 November 2006, and communicated to the Council on 22 November 2006, the Commissioner found that the Council failed to deal with the applicant's request for information in accordance with Part 1 of FOISA. In particular, he concluded that the Council misapplied section 26(a) and section 35(1)(g) of FOISA to the information withheld and therefore failed to deal with the application properly in terms of section 1(1) of FOISA. He required the Council to supply to the applicant the information he had requested, within two months of the date of receipt of his decision. Of the other nine requests which were the subject of an application to the Commissioner for a decision, two were resolved informally, and the Commissioner gave decisions on the remaining seven. We understand that the Council is supported in this appeal by a number of the other local authorities in relation to which the Commissioner made decisions similar to that which is the subject of the present appeal.

 

The scope of this appeal

[8] It is appropriate to emphasise at this stage what was, and what was not, in issue before us. As already noted, the Council is a Scottish public authority, as that expression is defined in FOISA, and a public authority within the meaning of section 238 of the Enterprise Act. The Commissioner held, and it was not disputed before us, that the information requested by the applicant from the Council is specified information, in accordance with the provisions of section 238(1). Moreover, although the point was addressed more by implication than expressly in the Commissioner's decision, he must be taken to have held, and it was not in issue before us, that the information is specified information which relates to the business of an undertaking, in accordance with the provisions of section 237(1)(b) of the Enterprise Act. It is not therefore necessary for us to consider the following matters: (a) what is "information" for the purposes of Part 9 of the Enterprise Act; (b) how information "comes to" a public authority, as provided by section 238(1); (c) what is meant by information so coming "in connection with" the exercise by the public authority of any of the specified functions; and (d) what is specified information which "relates to" the affairs of an individual or any business of an undertaking, as provided by section 237(1). It is also not necessary for us to consider the considerations relevant to disclosure of specified information provided by section 244.

[9] It was accepted by senior counsel for the Commissioner that, having regard to the matters which are not in dispute before us, the information requested by the applicant would be information, disclosure of which by the Council is prohibited by section 237 of the Enterprise Act, and would therefore be exempt information as provided by section 26 of FOISA, if it were not for the interpretation which the Commissioner invites us to place on subsection (6) of section 237. So what we have to consider is what is meant by the provision of that subsection that Part 9 of the Enterprise Act (except section 244) "does not affect any power or duty to disclose information which exists apart from" Part 9. We also have to consider the meaning, in section 26 of FOISA, of the words in parentheses in the provision that information "is exempt information if its disclosure ... (otherwise than under this Act)" is inter alia prohibited by or under an enactment, such as the Enterprise Act.

[10] Before us, senior counsel for the Council did not seek to rely on the exemption provided by section 35 of FOISA, so we do not require to consider whether the Council correctly relied on it in its response to the application.

 

Materials relevant to the issues of statutory construction
[11]
During the hearing of the appeal before us, counsel for both parties made reference to various background materials, which are not without interest but which we cannot treat as being of assistance to us in the construction of either of these statutes. These materials included excerpts from Hansard and letters from the Department of Trade and Industry and the Office of Fair Trading to the Commissioner. Counsel for both parties came to accept, however, in the course of the hearing, that neither statute discloses any ambiguity which might be resolved by the means approved in Pepper v Hart (Inspector of Taxes) [1993] AC 593. Rather, we are concerned to identify the scope and application of the legislation. It is legitimate for us to have regard to the explanatory note to Part 9 of the Enterprise Act: R (Westminster City Council) v National Asylum Support Service [2002] 1 WLR 2956 and R (S) v Chief Constable of South Yorkshire Police [2004] 1 WLR 2196. Paragraph 585 of the explanatory notes states that Part 9

"reflects the Government's strategy of widening and harmonising the gateways through which information can be disclosed ... and at the same time introduces appropriate safeguards in respect of permitted disclosure of information."

This is more a statement of aspiration than an aid to construction, and we find it of little assistance. Paragraph 596 states that section 237(6)

"confirms that the restrictions on disclosure, with the exception of section 244, are not intended to affect any power or duty to disclose information which exists outside Part 9 of the Act (i.e. whether arising under this Act or elsewhere)".

Whether this is so appears to us to be a question of construction of the statutes themselves, unaided by any extraneous material.

 

Discussion

[12] As has been seen, this appeal arises out of a request by the applicant for information held by a Scottish public authority. Under sections 1(1) and 2(1) of FOISA, the applicant is entitled to be given that information unless it is information that is exempt from disclosure under a provision of Part 2. It may either be exempt absolutely (section 2(1)(a)) or be exempt if the public interest in disclosure is outweighed by the public interest in non-disclosure (section 2(1)(b)).

[13] Information is exempt absolutely if its disclosure by a Scottish public authority (otherwise than under FOISA) is "prohibited by or under an enactment" (Sections 2(2)(b) and 26). In this case, the Council determined that the information requested by the applicant was exempt absolutely because disclosure was prohibited by Part 9 of the Enterprise Act. The Commissioner held that it was not so exempt, by reason of sections 237(6) and possibly also 241(1) of the Enterprise Act. He also considered the possible relevance of section 244 of that Act. All three sections appear in Part 9 of the Act.

[14] Under section 237(2) of the Enterprise Act, information must not (subject to exceptions, limitations and qualifications elsewhere in Part 9) be disclosed if it satisfies two conditions:

(i) that it is "specified information" within the meaning of section 238, and

(ii) that it "relates to (a) the affairs of an individual [or] any business of an undertaking" within the meaning of section 237.

That provision is, on the face of it, a prohibition which, in the terminology of section 26(a) of FOISA, is (i) a "prohibition by or under an enactment" and (ii) a prohibition against disclosure "otherwise than under [FOISA]".

[15] In order to determine the nature and scope of that prohibition, section 237(2) must be read in conjunction with the other provisions of Part 9. Moreover, the relevant question when dealing with an application under FOISA is not whether disclosure is prohibited under the Enterprise Act but whether that prohibition is such as to give rise to absolute exemption under FOISA. Accordingly, the two statutes must be read side by side.

[16] We stress the latter point because our attention was drawn to a number of non-statutory documents emanating from government departments and agencies which describe Part 9 of the Enterprise Act as a "single comprehensive access regime" or words to that effect - the implication being that, once Part 9 is engaged, it is unnecessary (and inappropriate) to refer back to FOISA. If that is what is intended, the approach is, in our opinion, unsound. But whether that is so or not, the issue here can, in our opinion, be resolved by conventional methods of statutory construction.

[17] The parties are agreed that the information requested by the applicant was "specified information" within the meaning of section 238(1) and that it "related to the business of an undertaking" within the meaning of section 237(1). Accordingly, the question at issue in this case becomes a very narrow one. Does either section 237(6) or section 241(1) - or do both of them--have the effect that, in spite of its apparent terms, section 237(2) does not constitute a "prohibition" for the purposes of section 26(a) of FOISA and, consequently, does not create an absolute exemption under section 2 of FOISA?

[18] We deal first with the purport of section 237(6). This provides that Part 9 does not "affect" any power or duty of disclosure which "exists apart from this Part". In our opinion, contrary to the approach of the Commissioner, these words have a twofold connotation. First, the source of the power or duty in question must be found elsewhere than in Part 9. Second, exercise of the power or performance of the duty must not be inconsistent with the prohibitions or restrictions imposed by the provisions of Part 9. The Commissioner has taken account of the first connotation, but not of the second. We give some examples to illustrate the effect of our interpretation.

[19] Information as to an individual's private life may be "specified information" within the meaning of section 238 but will not necessarily be information relating to the "affairs" of that person within the meaning of section 237. Whether it is so or not, the duty of non-disclosure under the Data Protection Act 1998 is consistent with the provisions of Part 9 and is not "affected" by section 237.

[20] Again, where information is "specified information" within the meaning of section 238, but does not relate to the affairs of an individual or any business of an undertaking within the meaning of section 237, section 237 does not constitute a "prohibition" against disclosure for the purposes of section 26 of FOISA. Consequently (except, it seems, in one possible respect) the powers and duties of a public authority under FOISA in relation to disclosure (or non-disclosure) of information are not "affected" by Part 9. (The possible exception relates to section 244 of the Enterprise Act, considered by the Commissioner at paragraphs 51 and 52 of his Decision. We consider this below.)

[21] Even if disclosure is prohibited under Part 9, the duty of an authority to provide advice and assistance under section 15 of FOISA is unaffected. Consequently, the authority may have a duty, on the one hand, to refuse disclosure of the information specifically requested by the applicant on the ground that disclosure is prohibited by Part 9 while, on the other, being bound to assist the applicant to formulate his request in a form that does not fall foul of Part 9.

[22] Further, information that is "specified information" in terms of section 238, but does not fall within section 237(1), may be still be exempt from disclosure (either absolutely or because the balance of public interest so requires) by virtue of provisions of FOISA other than sections 2(2)(b) and 26. To that extent again, the powers and duties conferred or imposed by FOISA continue "unaffected" by section 237.

[23] On the other hand, where specified information falls within section 237(1), section 237(2) expressly prohibits disclosure of that information. In that event, exercise of a power or performance of a duty under FOISA to disclose that information would be inconsistent with the provisions of Part 9. It is necessarily affected by the prohibition in section 237(2). Consequently, in our opinion, such a power or duty cannot be said to "exist apart from" Part 9.

[24] It follows that, in our opinion, the Commissioner erred in law in holding (at paragraphs 42 to 46 of his Decision) that section 237(6) allows disclosure of the information sought by the applicant in this case.

[25] As regards section 241 of the Enterprise Act, the Commissioner (at paragraph 48) expressed the view, strictly obiter, that disclosure of information under FOISA is a "function" of the authority and that section 241(1) is, consequently, wide enough to cover the duty under FOISA to comply with information requests.

[26] In our opinion, this approach is erroneous. It is unnecessary to enter into a general discussion as to what is, or is not, a "function" of a public authority. What matters here is to construe the word "function" in the context of section 241 (1). In our opinion, the word "function" in that context connotes an act or activity susceptible of being facilitated by disclosure of information. To say that disclosure of information "facilitates" disclosure of information is either meaningless or tautological.

[27] As regards section 244 of the Enterprise Act, the Commissioner expressed the opinion (at paragraph 52) that:

"Under FOISA, information must be released unless an exemption applies. Therefore, the only relevant considerations when addressing whether or not specified information should be released in response to a request under FOISA are those set out in Part 2 of FOISA (and any other provisions of FOISA which sets aside the duty to release information such as those dealing with vexatious or repeated requests)."

It is not necessary for us here to express a concluded view on the correctness of the Commissioner's approach. It appears to us, however, that the "considerations" referred to in section 244 may be relevant where the authority is required to weigh the public interest under section 2(1)(b) of FOISA. In that event, and to that extent, section 244 could be said to "affect" the powers and duties under FOISA.

 

Result

[28] In the result, we sustain the appeal and quash the Decision of the Commissioner.

 

 


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