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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
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Lord Nimmo Smith
Lord Eassie
Sir David Edward, Q.C.
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[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
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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.
