Scottish ICO: Commissioner welcomes Court ruling in landmark freedom of information case

Scottish Information Commissioner: News Release: 24 January 2007

The Scottish Information Commissioner today (24 January 2007) welcomed a landmark Court of Session ruling which upheld his decisions in relation to two appeals brought by the Scottish Executive under the Freedom of Information (Scotland) Act 2002 (FOISA).

The ruling concerned two separate decisions issued by the Commissioner, in which he found that the Executive had acted incorrectly in withholding specific information from release. One case involved documents concerning legislation passed over 15 years ago, part of which the Executive had still not carried into effect in Scotland. Sections 25 to 29 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990, if implemented, would allow professionals, other than advocates and solicitors, rights to conduct litigation on behalf of members of the public, as well as rights of audience in the courts.

In bringing its appeals to the Court, the Executive argued that the Commissioner had wrongly interpreted FOISA when considering the content of withheld documents on an individual basis. The Executive argued that certain types, or “classes”, of documents should automatically fall within the scope of particular FOISA exemptions.

Following its consideration of the case, the Court rejected the arguments put forward by the Executive. In reaching this conclusion, the Court described the “class” arguments put forward by the Executive as “ill-founded”, and concluded that the Commissioner’s methodology of considering the specific content of individual documents, and the potential impact of release, was correct and appropriate. A number of other criticisms made by the Executive were also rejected by the court. As a result, the Court refused both of the Executive’s appeals.

Kevin Dunion, the Scottish Information Commissioner, said:


“This is an important judgement in my favour. The Court has agreed that it was wrong of the Executive to conclude that it would be harmful to release information which it characterised as belonging to a class or type, e.g. advice to Ministers, without regard to the content of that information. I have consistently maintained this is not what Parliament intended and is not what the Freedom of Information (Scotland) Act allows. In my view, the effect of the release of such information can only be gauged by considering the content. I am pleased that the judgement clearly supports my position.”

The Commissioner added:

“At the heart of these cases is whether the public is given access to information which allows them to understand why decisions have been arrived at. With regard to the Law Reform Act, I took the view that a democratic society is entitled to expect that legislation passed by its elected representatives in Parliament will be brought into force unless there are good reasons for not doing so, and citizens are entitled to know those reasons unless there is a greater public interest in keeping them secret.”

Ends