Commissioner welcomes Court ruling in landmark freedom of information case

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.?


For further information contact Claire Sigsworth or Paul Mutch on 01334 464610, out of hours, 07976 511752

Notes to Editors:

Court of Session Opinion

  • The Court of Session heard the appeals in December 2006.
  • The Opinion of the Court was issued on 23 January 2007 .
  • The Opinion of the Court of Session on this case is available to view online here:

Commissioner's Decisions

The Commissioner's Decisions to which the Court of Session's Opinion relates are:

Decision 057/2005 ? Mr William Alexander and the Scottish Executive

  • Mr Alexander requested information relating to the commencement of sections 25 to 29 of the Law Reform (Miscellaneous Provisions) ( Scotland ) Act 1990. Sections 25 to 29 of this Act, which have yet to be implemented, set out arrangements which would ensure greater competition in the provision of legal services in Scotland .
  • The Scottish Executive refused the request, arguing that most of the information either related to the formulation of policy or would prejudice the effective conduct of public affairs, and was therefore exempt from release under FOISA.
  • The Commissioner found, following consideration of the content of each document, that, while much of the information did indeed fall within the scope of an exemption, other information did not, and should therefore be released. The Commissioner also found that some information, while falling within the scope of an exemption, should be released in the public interest.

Decision 060/2005 ? Mr David Elstone / Mr Martin Williams of the Sunday Herald and the Scottish Executive

  • Mr Elstone and Mr Williams separately made similar requests for documentation relating to a decision taken by the Scottish Ministers not to ?call in? a planning application for Trearne Quarry, North Ayrshire. If ?called in?, North Ayrshire Council would have been required to refer the application to the Scottish Ministers for decision.
  • The Scottish Executive refused both of these requests, arguing that release would prejudice the effective conduction of public affairs.
  • Given the similarity of the cases, the Commissioner issued a single Decision which addressed both requests. The Commissioner found, following the consideration of individual documents, that while some had been withheld correctly, others did not fall within the scope of any exemption and were appropriate for release.

The Freedom of Information (Scotland) Act 2002

  • The Freedom of Information (Scotland) Act 2002 (FOISA) provides a statutory right of access to all information held by Scottish public authorities. This right came into effect on 1 January 2005.
  • Around 10,000 public authorities in Scotland are covered by FOISA. They include the Scottish Parliament and Executive, police forces, the NHS, local authorities, education institutions, and publicly owned companies.
  • Information can only be withheld by a public authority if it falls under one of the exemptions listed in FOISA. If an individual believes an authority is wrong to withhold information, they ultimately have a right of appeal to the Scottish Information Commissioner, who can require release.
  • The parties to any case have the right to appeal against the Commissioner?s decision to the Court of Session on a point of law only.

The Scottish Information Commissioner

  • Kevin Dunion the Scottish Information Commissioner is a fully independent public official, appointed by the Queen on the nomination of the Scottish Parliament.
  • His duties and powers are to ensure that people get the information from Scottish public authorities to which they are entitled.
  • His role actively promotes and enforces compliance with FOISA.

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