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Commissioner orders release of Shirley McKie case information

News release: 29 June 2010

The Scottish Information Commissioner has ordered the Scottish Government to release previously-withheld information from 131 documents to the family of Shirley McKie. The decision marks the conclusion one of the most complex FOI investigations to date, involving information contained in over 630 individual documents, and the application by the Ministers of ten separate FOI 'exemptions'.

The Commissioner's decision ? which runs to 118 pages - sets out the strong public interest arguments which establish that the Scottish Government must release new information about the Shirley McKie fingerprint affair. The ruling requires the Government to release all withheld information from 111 documents, and some withheld information from a further 20 documents.

Issuing his decision, Kevin Dunion, the Scottish Information Commissioner said:

"The Shirley McKie case has involved considerable public expense, affected the lives of many individuals, and called the Scottish fingerprint service into question. There is a significant public interest in knowing that Scotland has a fingerprint service which ensures that correct identifications are made, so that justice can be served. This is why I have ordered that this information should now be released to the McKie family."

The Commissioner also found that the Scottish Government had acted correctly in withholding information contained in a further 507 documents. For the most part, the Commissioner found that this information related to confidential legal advice supplied to the Scottish Ministers, which is subject to legal privilege. The Commissioner concluded that there is a strong public interest in ensuring that individuals and organisations can communicate freely with their legal advisers and that the preservation of this privilege is fundamental to the administration of justice.

He added:

"The principle of maintaining confidentiality in the communications between a client and their legal adviser is a basic condition for the administration of justice. Had I found evidence in the information of wrong doing, or of unreasonable or reprehensible behaviour on the part of Ministers, the public interest outcome may well have been very different. However, I found no such evidence in my review of the information. The balance of the public interest therefore lay in maintaining the confidentiality of these sensitive communications."

The full text of the Commissioner's decision is available here: Decision 109/2010.

Ends

For further information contact the Commissioner's Media Team on 01334 464610, out of hours on 07976 511752, or email media@itspublicknowledge.info.

Notes to Editors:

About the Commissioner's decision:

  • The Commissioner's decision was issued on Monday 28th June. It follows an appeal to the Commissioner under the Freedom of Information (Scotland) Act 2002 (FOISA), by Mr Iain and Mrs Mhairi McKie, relatives of Shirley McKie.
  • Iain McKie initially submitted a request to the Scottish Government in 2005, seeking access to all the information held in relation to the Shirley McKie case. While the Government disclosed a large amount of information to Mr McKie, other information was withheld.
  • When Mr and Mrs McKie's subsequent attempts to access the full range of this information failed, the McKies brought an appeal to the Scottish Information Commissioner in August 2007.
  • The government cited a range of exemptions in withholding the information, including those which protect information relating to the formulation of policy, those which allow non-disclosure where release would harm the effective conduct of public affairs, and those which protect personal data, commercial interests and information which is subject to legal professional privilege.
  • The Commissioner found that the Scottish Government acted correctly in withholding the information which fell within the scope of the legal professional privilege exemption. While this exemption is subject to a 'public interest override' (which requires that information nevertheless be disclosed if the balance of the public interest favours release), the Commissioner found that the balance of the public interest favoured non-disclosure, on the basis of the strong public interest in protecting this privilege.
  • However, the Commissioner went on to find that other information should nevertheless be released in the public interest. Where, for example, information fell within the scope of FOI exemptions protecting information relating to the formulation or development of government policy or the effective conduct of public affairs (and where it was not also covered by the legal professional privilege exemption), the Commissioner concluded that the public interest favoured the release of that information. In doing so, the Commissioner found that the public interest in ensuring openness around this matter, and in ensuring the appropriate scrutiny of the Scottish fingerprint service in relation to this case, outweighed the public interest arguments for non-disclosure.

About the Freedom of Information legislation:

  • The Freedom of Information (Scotland) Act 2002 (which came into force on 1st January 2005) provides individuals and organisations with a right to receive the information held by over 10,000 public authorities in Scotland. The Act applies to the Scottish Parliament, the Scottish Government and the NHS in Scotland, as well as all of Scotland's police forces, local authorities and universities.
  • Under FOI any written request for information must be responded to within 20 working days. Information can only be withheld where the FOI Act expressly permits it. Information can be withheld, for example, where its release would breach someone's right to privacy under data protection legislation, or where it would harm national security or an organisation's commercial interests. Even where an exemption applies, however, in many cases the Act also says that information must be released if it is in the public interest to do so.
  • There is a three-step process to requesting information. This works as follows:
    • Step 1 ? the request stage ? an individual writes to an authority to request information. In most cases, the information will be provided first time, and there will be no need to move on to the later stages. Where information is refused, however, the FOI Act requires that the authority inform the requester of his/her rights of appeal in relation to the decision.
    • Step 2 ? the review stage ? the first stage of this right of appeal is to write to the authority asking it to review its handling of the original request. The authority has a further 20 working days to reconsider the request and respond. If it continues to withhold the information, it must notify the requester of his/her right to appeal to the Scottish Information Commissioner.
    • Step 3 ? the application stage ? an individual can appeal to the Scottish Information Commissioner. On receipt of an appeal application, the Commissioner will conduct a full investigation into the public authority's handling of the request. If he finds that the authority has withheld information incorrectly, he can force the authority to release it. He may also uphold the authority's decision to withhold information.

About the Scottish Information Commissioner:

  • Kevin Dunion was appointed as the first Scottish Information Commissioner in February 2003. In February 2008 he was reappointed for a second, and final term, for four years until 2012.
  • He is also Co-Director of the Centre for Freedom of Information, a joint venture with the Dundee University School of Law.

About the Shirley McKie affair:

  • In January 1997, Marion Ross was found murdered at her home in Kilmarnock. A forensics team subsequently took fingerprints at the scene, which led to the arrest of David Ashbury for the murder.
  • During the investigation a fingerprint, referred to as mark Y7, was found at the scene. This fingerprint was identified as belonging to Shirley McKie, a serving police officer involved in the investigation.
  • At the subsequent murder trial Shirley McKie denied that the fingerprint was hers, stating that she had never been inside the house.
  • Following the trial, Shirley McKie was prosecuted for perjury as a result of her evidence. The evidence before the jury included evidence from defence fingerprint experts that Y7 was not her fingerprint. The jury unanimously found her not-guilty of perjury.
  • Following the not-guilty verdict, various fingerprint experts expressed differing views as to whether Y7 was the fingerprint of Shirley McKie.
  • In August 2000, David Ashbury was granted interim liberation pending an appeal against his conviction for murder. His conviction was quashed in August 2002.
  • Shirley McKie raised an action for damages in November 2001. The action was settled out of court by the Scottish Ministers, without admission of liability, in February 2006.
  • In March 2008, the Scottish Parliament announced that an independent inquiry into the affair ("the Fingerprint Inquiry") was to be held. Sir Anthony Campbell was appointed to undertake the inquiry.The inquiry is ongoing.
  • For more information about the Fingerprint Inquiry, visit: www.thefingerprintinquiryscotland.org.uk.

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