Thursday, October 08, 2009

Court of Session rules no right to request copies of documents under FOI(S)A

The Court of Session has ruled that the FOI (Scotland) Act provides a right of access to information, not copies of actual documents. In doing so, the Court rejected the argument that a request for a copy of a document was a request for information to be supplied in a preferred form.

In this case the requesters, MacRoberts solicitors, had made clear they wanted copies of the actual notices rather than the information contained in them.

In allowing the two appeals brought by Glasgow and Dundee city councils, the Court also said the requests made by MacRoberts were not valid requests under the Act since they were made by an agent acting on behalf of an unidentified client. In situations where a request is made by an agent, the Court said the client was the true applicant, and in accordance with section 8(1)(b) should therefore be named.

A report in the Sunday Herald said the Scottish Information Commissioner was concerned by the ruling is considering whether to appeal to the Supreme Court.

The judges' decision states:
We can summarise our conclusions as follows:

1. The requests were invalid in that they were not requests for "information" within the meaning of the Act.

2. The requests were in addition invalid in that they did not disclose the name of the applicant, namely the second respondents.

3. The Commissioner erred in reaching his decisions on the basis that copies of statutory notices constituted "information" within the meaning of the Act.

4. The Commissioner erred in reaching his decision in the Glasgow case on the basis that a preference expressed by the applicant in terms of section 11 was relevant to the application of section 25.

5. We question whether, in any event, a request for copies of specified documents falls within the scope of section 11, but we do not require to express a concluded opinion on the point.

6. The Commissioner further erred, in relation to section 25, in failing to proceed on the basis that information which is made available in accordance with an authority's publication scheme, any payment required being specified in, or determined in accordance with, the scheme, is deemed to be reasonably obtainable.

7. The Commissioner further erred, in relation to section 25(1), in failing to take into
consideration the nature and characteristics of the applicant.

8. The Commissioner failed to comply with his duty to act fairly in reaching his decisions, in relation to section 33(1)(b), in both the Glasgow case and the Dundee case.

9. The Commissioner's decision in the Glasgow case was, in addition, irrational in that it dealt with the contentions in respect of section 12 and section 25 on inconsistent bases.

In these circumstances, both appeals must be allowed.
The full judgment is here.


Katherine Gundersen said...

We received a comment on this post today (Fri 9/10) which in the course of moderating we accidentally rejected instead of publishing. If the person would like to re-submit it, we will put it up.

Many thanks,


jonathan b said...

The comment which was inadvertently deleted was to the effect that, although the judges may have found that the requests made were not valid under FOI(S)A, they don't seem to have considered whether they might have been valid under the Environmental Information (Scotland) Regulations. I would have thought that information such as registers of roads, and other information "commonly sought when a person proposes to acquire an interest in heritable property in Scotland" might well fall into the category of environmental information.

The SIC has previously said that requests for environmental information can be considered either under FOI(S)A or the EIR. However, if they are considered under FOI(S)A and the outcome is non-disclosure one must move on to see if the EIR permit disclosure.

As far as I understand it, the EIR don't require the applicant to provide name and address - in those circumstances would a request from an "agent" not be pefectly valid?

I'm not saying consideration of the EIR would necessarily have led to a different outcome in court, but I'm surprised they weren't even referred to.