Public Law

In a unanimous decision, the Supreme Court has ordered South Lanarkshire Council to release information on its pay scales under the Freedom of Information (Scotland) Act 2002 (“FOISA”).

The factual background to the case is refreshingly straightforward. In May 2010 Mark Irvine requested information about the number (but not the identity) of Council employees in a particular post at particular points on the Council’s pay scales. Mr Irvine is a campaigner for Action 4 Equality Scotland and was trying to work out whether the Council’s pay gradings favoured work traditionally done by men. The Council refused his request on the ground that disclosing the requested information would breach the Data Protection Act 1998 (‘”DPA”).

Mr Irvine applied to the Scottish Information Commissioner (“the Commissioner”) to review this refusal, and the Commissioner ordered the Council to disclose the information. The Council appealed (unsuccessfully) to the Inner House of the Court of Session, and then ultimately to the Supreme Court.

As an aside, the Inner House had discussed whether the Commissioner was the appropriate respondent to the appeal, on the basis that the real dispute was between Mr Irvine and the Council.  While no final conclusion was given on that point, the court was satisfied that there was (at least in this case) a public interest in the proper construction of the legislation that the requester and authority may not have been able to address. In addition, since Mr Irvine had chosen not to appear, the court would have been without a contradictor to the Council’s arguments if the Commissioner had not appeared. The Commissioner’s status as a respondent was not discussed in the Supreme Court, so it is possible that the Inner House may raise the question again in a future case that raises fewer public interest issues and in which both the requester and authority wish to appear.

The relationship between FOISA and the DPA is complex but, in essence, information is exempt from disclosure under FOISA if it constitutes personal data under the DPA and disclosing it would breach the data protection principles. Those principles include that personal data should not be processed unless at least one of the conditions set out in Schedule 2 of the DPA is met. The question in this case was whether disclosure was ‘necessary’ for the purpose of a legitimate interest pursued by Mr Irvine, and whether pursuing that legitimate interest would prejudice the rights and freedoms of the Council employees in question.

Lady Hale gave the only judgement of the court (unusually for a Scottish appeal, in which the Scottish justices – Lord Reed in this case – would usually be expected to take the lead). In dismissing the Council’s appeal, Lady Hale explained that the right to the disclosure of information under FOISA did not trump the provisions of the DPA, which continued to protect the right to privacy with respect to the processing of personal data. Though Mr Irvine had not asked to know the identities of the individuals in the relevant posts, and the Commissioner’s original decision had questioned whether the requested information would qualify as personal data, the parties accepted for the purposes of the appeal that it did. The Court therefore had to focus on the ‘legitimate interests’ issue, and said that three questions had to be answered in relation to Mr Irvine’s request:

  1. Was Mr Irvine pursuing a legitimate interest or interests?
  2. Was the processing of the personal data necessary for the purposes of those interests?
  3. Was the processing unwarranted in this case by reason of prejudice to the rights and freedoms or legitimate interests of the employees?

To the delight of lawyers everywhere (well maybe just public lawyers) much of the Supreme Court’s decision turns on the interpretation of the word ”necessary”. The Council had argued that “necessary” should be given its natural and ordinary meaning. The Court disagreed and found that it was well established in EU law (the DPA being derived from an EU Directive) that, in the context of justification, ”necessary” meant ”reasonably necessary” rather than absolutely or strictly necessary. It formed part of a proportionality test, and any measure which interfered with a protected right must be the least restrictive for the aim being pursued.  In this case the identities of the employees would not be revealed, so it was difficult to see how there would be any interference with the employees’ private lives. The Court found that the Commissioner was entitled to reach the decision he* did, and so the information should be disclosed by the Council to Mr Irvine.

The Council had also claimed a breach of natural justice, which the Court also dismissed for reasons too lengthy to go into here.

*If you scoffed at the use of “he” throughout the judgement (as a certain blogger may have pre-emptively done before checking his dates) it’s worth noting that the Commissioner changed (to an entirely different person, rather than a change of gender) between the initial decision in March 2011 and the Supreme Court’s decision in July 2013.

Niall McLean

Associate at Brodies LLP
Niall is a member of Brodies' market leading Government, Regulation and Competition practice. Niall gives both public and private sector clients advice in a broad range of areas including: corporate crime and investigations, governance, defamation and reputation management, public law and statutory interpretation.
Niall McLean