The Inner House of the Court of Session has refused an appeal against a decision of The Scottish Information Commissioner in relation to the Police Investigations and Review Commissioner’s refusal of a freedom of information request.
Background
In Scotland, under the Freedom of Information (Scotland) Act 2002, any person can request access to recorded information held by public authorities. Ms Alexandria Gallagher made a freedom of information request under FOISA to the PIRC, to find out the number of police officers the PIRC had arrested since its inception in 2013.
The PIRC refused this request for information under section 12 FOISA (and the regulations made thereunder), which stipulate that public authorities are not obliged to comply with FOI requests if the cost of complying with such a request exceeds £600, based on a capped rate of £15 per hour of an employee’s time. The PIRC had calculated that it would have to review 433,588 files to find the information requested by Ms Gallagher as it was not recorded centrally by the PIRC, amounting to a cost of £108,390 for compliance. On this basis the PIRC refused Ms Gallagher’s request.
Ms Gallagher asked the Scottish Information Commissioner to investigate the legitimacy of PIRC’s refusal. The Commissioner concluded that the estimated cost of complying provided by the PIRC was reasonable (when looked at against PIRC’s current operating capabilities rather than any upgraded system of data retrieval). Therefore, section 12 FOISA was applicable and the PIRC was entitled to refuse Ms Gallagher’s request for information.
Arguments of the Appellant
Ms Gallagher appealed the Commissioner’s decision to the Inner House of the Court of Session on a number of grounds, including alleging bias and breach of natural justice and that in taking its decision the Commissioner had acted irrationality and unreasonably and failed to have regard to the public interest in favour of disclosure of information by the PIRC. She also asked the Court to declare that the PIRC owes a statutory duty of care to keep the public informed about the conduct of police officers; and for an adjudication to take place on whether her request was properly refused as costing more than £600.
Section 56 of FOISA provides that an appeal of the Commissioner’s decision to the Court can only be brought on the basis of the Commissioner having made an error in law. Ms Gallagher’s main submissions were that the Commissioner wrongly based its decision (and assessment of whether the estimated cost of compliance was reasonable) on the PIRC’s existing recording systems, which Ms Gallagher viewed as highly inefficient and conducive to a lack of transparency and accountability. She argued that in his assessment of what a reasonable cost of compliance was, the Commissioner should have sought expert advice and had regard for the potential the PIRC to employ a more efficient system of data retrieval.
The Court’s findings
The Court acknowledged that the efficiency of an authority’s systems no doubt has an impact on the cost of compliance with FOI requests, and that the cost limit of £600 has not been increased since FOISA came into force more than 20 years ago. However, the Court stressed the limitations of both its and the Commissioner’s powers in cases such as these; the Commissioner was bound by the terms of FOISA (which allows PIRC to refuse a request where the cost of compliance limit would be exceeded), and the Court was bound by section 56 which only allows the Court to interfere with the Commissioner’s decision if the Commissioner has made an error in law. Neither the Commissioner nor (whether directly or indirectly) the Court has a power under FOISA to require PIRC to operate a more efficient data retrieval system, let alone to make a declaration that PIRC has a statutory duty of care regarding transparency.
The Court considered the English case of Kirkham v Information Commissioner [2018] UKUT 126 (AAC) (looking at the corresponding FOIA regime) in which it was found that cost limits for compliance are there to protect public authorities from overly onerous requests for information and that the question of what is a reasonable cost of compliance is “not a purely objective one of what costs it would be reasonable to expect to incur”.
The Court also found Ms Gallagher’s arguments regarding breaches of natural justice, bias, irrationality and unreasonableness were without merit, and noted that the public interest test which Ms Gallagher sought to rely upon only applies where an individual has requested information pertaining to one of the exempt categories of information (as set out in Part 2 FOISA).
Comment
Judicial reviews of decisions of the Scottish Information Commissioner are fairly unusual and for that reason alone this judgment makes a valuable contribution to how FOISA is to be interpreted and applied. At a time when reform of the FOISA regime is currently under discussion by the Scottish Parliament, this case also raises important questions regarding the effectiveness of the current FOISA regime and whether it is succeeding in its function of ensuring transparency and accountability of public authorities. That is particularly so when current statutory provisions appear to actively incentivise public authorities to maintain outdated and inefficient record keeping systems. It will be interesting to see how reforms to the FOISA regime, if passed, will impact on this (though noting that private member bills are not generally permitted to have significant cost implications).
If you would like to discuss how this judgement may affect you or your public authority, please contact Jamie Dunne or your usual Brodies contact.
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