Commentary

Court appeals

In 2010, there were two legal challenges to formal notices issued by the Commissioner.

The identification of individuals

In the first of these, the Court of Session heard an appeal by three housing associations against a decision of the Commissioner, in which he agreed that Strathclyde Police had been correct not to disclose the numbers of registered sex offenders in certain postcode areas. The Commissioner accepted that, if the numbers were disclosed, individuals offenders could be identified, and that these numbers were exempt from disclosure under the FOI exemption that protects personal information (section 38(1)(b) of the FOI Act).

At the hearing, the housing associations argued that, in determining whether individuals could be identified, the Commissioner had been wrong to take account of other information in the public domain (which, together with the statistics, could lead to the identification of individuals), as the statistics, if disclosed, would be disclosed only to them, and they would not seek to identify individual offenders.

However, the Court made it clear that disclosure of information under the Act is, in effect, disclosure into the public domain, and that the Commissioner had therefore been correct to look beyond the intentions of the housing associations.

The Court also found, however, that the Commissioner's decision did not set out in sufficient detail why he came to the conclusion that disclosure of the statistics, together with other information in the public domain, would identify individual offenders, and the Commissioner has therefore been asked to reconsider his conclusions and issue a new decision.

Information notice challenge

The second of the formal challenges was an appeal by the Scottish Ministers against an information notice issued by the Commissioner. Section 50 of the FOI Act allows the Commissioner to issue an information notice to obtain information from a public authority (including unrecorded information) which he needs to deal with an application, or to determine whether an authority has complied with the Act. This was the first ever appeal against an information notice, but the case settled before the hearing.

A clean slate

Following the resolution of these matters, and for the first time since 2005, there are – at the time of writing – no live appeals waiting to be heard by the Court of Session.