Court appeals

A right of appeal...

Following the issue of a decision by the Commissioner, either party – the applicant or the public authority – has a right to appeal the decision to the Court of Session. Appeals can only, however, be made on a point of law (i.e. the party must believe that the Commissioner has made a legal error in his decision, rather than, for example, simply disagree with the decision).

Not all appeals will reach the stage of a full Court hearing – often the appeal will be withdrawn, and occasionally a case may be conceded in advance of the hearing. Since 2005, only seven cases have been heard by the Court.

There were three appeals against a decision of the Commissioner made in 2009. These all related to one single decision – decision 014/2009. In this case, the applicants – three housing associations – have appealed against the Commissioner's decision that the release of statistical information held by Strathclyde Police regarding the number of Registered Sex Offenders in certain postcode areas would breach the Data Protection Act 1998.

This case represents the only Court of Session hearing that is currently outstanding. It is due to be heard by the Court in March 2010.

Appeals made to the Court of Session 2005-2009

by Authority by Applicant
Ministers, The Parliament
Scottish Ministers (Scottish Government) 7
     
Local Government
Aberdeenshire Council 3
Central Scotland Fire Board 1
Dumfries and Galloway Council 1
Dundee City Council 2
East Dumbartonshire Council 1
Falkirk Council 1
Fife Council 1 1
Glasgow City Council 1
South Ayrshire Council 1
West Lothian Council 1
     
National Health Service
Common Services Agency 3
     
Police
Grampian Police 1
Northern Constabulary 1
Strathclyde Police 3
     
Others
Scottish Commission for the Regulation of Care (Care Commission) 1
     
Total 23 7

Evolving practice...

In 2009 the Court of Session issued its Opinion in the case of Glasgow City Council and Dundee City Council v Scottish Information Commissioner. The Court found that, in the particular circumstances of the case, the information requests made to the Councils were invalid.

The Court's Opinion has a number of practical implications for the implementation of FOI in Scotland. For example, the Court stressed that requests made on behalf of a third party must name the 'true applicant' making the request. A request which fails to do so will be invalid under FOI.

The Court also highlighted that the FOI Act provides a right to information and not documents. While, therefore, a request might seek a copy of a letter, there is no automatic right to receive a copy, only the information contained within the letter.

In addition, the Court stressed the importance of a public authority's duty to advise and assist requesters, underlining that, where a request is invalid, public authorities have a duty to advise applicants on the steps they can take to make a valid request.

In January 2010, the Commissioner published guidance to set out the implications of the Court's Opinion, and provide practical advice for authorities on dealing with FOI requests. Key features are:

Requests for copies

The Commissioner reiterates that the FOI Act provides a right to information and not copies of specific documents. He stresses, however, that, where a request for a copy of a document is received, these should not be automatically refused. Where it is clear that a requester is seeking the information recorded in a document, then this information should be provided. In many cases, the supply of a copy will be the simplest way to provide this information.

Requests on behalf of others

The Commissioner stresses that requests made on behalf of someone else must name the third party. Where a request is made on behalf of an unnamed person, the authority should provide advice and assistant to the requester to explain what needs to be done for a valid request to be made.

The Commissioner would urge all Scottish public authorities to read the Guidance in full. Download the full version of the Commissioner's Guidance.