Tag Archives: Freedom of Information

Information Law Review of 2019

Well, it is that time again; the beginning of a New Year and therefore time for my third annual look at what happened in the world of information law in the previous twelve months and what those with an interest in the field should be looking out for in 2020. I would like to begin by wishing all readers of the Information Law Blog, both new and old, a very happy New Year.

My reviews of 2017 and 2018 began by looking at the case of Various Claimants v WM Morrisons Supermarkets Limited. I shall keep the tradition going by looking once again at this case. In 2018, the Court of Appeal dismissed the appeal by Morrisons against the decision of Mr Justice Langstaff holding them vicariously liable for the actions of an ex-employee. This case rumbled on again in 2019, with the Supreme Court hearing an appeal by Morrisons on 6th and 7th November. By the end of 2019, the Supreme Court had not yet issued its judgment and so that will be something to look out for in 2020; the Supreme Court’s judgment (although concerned with the Data Protection Act 1998, rather than the GDPR and Data Protection Act 2018) will have ramifications for data subjects and controllers, regardless of which way it goes.

Brexit continued to be a feature of 2019 in the Information law world. We have seen the changes that will take effect in data protection law as a result of the UK’s withdrawal from the European Union, which is now scheduled to take place at the end of this month. Brexit, however, will not stop being a feature of information law at 23:00 on 31st January (assuming there are no further delays). We will be in a transition period until the end of the year, but we don’t yet know exactly what we’re transitioning to which might start to become clearer by the Summer.

Brexit also featured in the information law world in other respects as well. There are still some data protection and privacy concerns floating around from the 2016 referendum on the UK’s membership of the EU. Indirectly related to that have been proceedings in the Upper Tribunal involving UKIP and in also in the First-Tier Tribunal. If reports are anything to go by, proceedings in the First-Tier Tribunal at the end of 2019 could result in an extremely critical decision against the Commissioner, so that is something to look out for in 2020.

We also saw the first GDPR administrative fine issued in the UK by the Information Commissioner (some 19 or so months after the GDPR became applicable and quite a bit behind other regulators in other EU Member States). The Commissioner has issued two Notices of Intent against two other Controllers (that we’re aware of) both of which were due to expire this month, but it has been confirmed by the Information Commissioner that the statutory six month period has been extended by agreement (in accordance with the statutory provisions). The reasons for this have not been made public at this time.

Just before Christmas the Advocate General of the European Court of Justice gave his opinion in Data Protection Commissioner v Facebook Ireland & Schrems concerning standard contractual clauses. We can expect a decision from the European Court of Justice to follow soon, whether that is before or after “exit day” at the end of January remains to be seen.

In the wider field of privacy law, the Court of Appeal took a look at the judgment of Mr Justice Arnold in the case involving Channel 5’s fly-on-the-wall documentary ‘Can’t Pay? We’ll Take it Away’. The Court of Appeal dismissed the appeals by the Respondents in respect of liability and the cross-appeal by the Claimants on the issue of quantum of damages. Meanwhile, in Scotland, Lord Bannatyne (for the first time) declared that there exists in the law of Scotland a common law right to privacy.

In May, Information Notices were again a feature of the decisions flowing from the First-Tier Tribunal; this time, however, it was concerning the Commissioner’s powers under the Freedom of Information Act 2000. The Tribunal confirmed that the Commissioner can issue an information notice in order to obtain information as part of her process for determining whether a person is a public authority for the purposes of the Environmental Information Regulations 2004.

In 2019, the Scottish Parliament’s Public Audit and Post-Legislative Scrutiny Committee began undertaking Post-Legislative Scrutiny of the Freedom of Information (Scotland) Act 2002. In 2019, I gave both written and oral [pdf] evidence to the Committee. The Committee is expected to release its report and recommendations next month.

In 2019, we saw the expansion of FOI in Scotland with Registered Social Landlords formally being designated as Scottish public authorities for the purposes of the Freedom of Information (Scotland) Act 2002.

We also had one of those rare things: a decision from the Court of Session in an appeal against a decision of the Scottish Information Commissioner. In the sole decision in such an appeal issued by the Court of Session in 2019, my client successfully challenged (on a point of law) a finding by the Commissioner that information he had requested was not held by a local council for the purpose of the Freedom of Information (Scotland) Act 2002. This case provides some useful guidance on determining whether information is held, or not, for the purposes of the Freedom of Information (Scotland) Act 2002.

Alistair Sloan

If you would like advice or assistance with Privacy and Data Protection matters or with UK and Scottish Freedom of Information requests contact our team on 0141 229 0880.

Scottish Vexatiousness

Paragraph numbers in this blog post relate to the Court of Session’s decision in Beggs v Scottish Information Commissioner [2018] CSIH 80; unless the context requires, or it is expressly stated, otherwise.

If you’re regularly involved in the making of or responding to freedom of information requests then you are likely to be familiar with the decision of the English and Welsh Court of Appeal in Dransfield and Another v The Information Commissioner and another which deals with the meaning and application of “vexatious” within section 14 of the Freedom of Information Act 2000 (“FOIA”). In keeping with many of the provisions of FOIA, there has been considerable litigation on section 14 within the First-Tier Tribunal; however, the decision in Dransfield is the leading authority on the approach that public authorities, the UK Information Commissioner and the First-Tier and Upper Tribunals should take when applying or considering the exemption in section 14(1) of FOIA.

As with many aspects of the Freedom of Information (Scotland) Act 2002, the equivalent provisions within FOISA (also section 14) have escaped any judicial consideration; that is, until today when the First Division,  Inner House of the Court of Session (Lord President Carloway and Lords Brodie and Drummond Young) advised its opinion in an appeal under section 56 of FOISA against a decision of the Scottish Information Commissioner which upheld the decision of the Scottish Prison Service that a request for information made to it was vexatious: Beggs v Scottish Information Commissioner [2018] CSIH 80.

As with most cases involving vexatious requests, there is a history to the matter; this is briefly set out in paragraphs 5-15 of the Court’s Opinion. I am therefore not going to set it out here. There were two grounds of appeal advanced on behalf of the Appellant before the Court and these are set out, in full, by the Court in paragraph 4 of its Opinion. The grounds can  be summarised as follows: (1) that the test set out by Arden LJ (as she then was) in Dransfield should apply and that it had been incorrectly applied by the Scottish Information Commissioner (“SIC”); and (2) that the SIC’s decision was irrational as it failed to take into account a number of factors. The court ultimately rejected both grounds of appeal and refused the Appeal.

The Court makes some “preliminary comment” about the English and Welsh Court of Appeal’s decision in Dransfield. It notes that the decision is “an English case concerning English legislation” (para 26). This is not a wholly accurate statement by the Court: Dransfield concerns section 14 of FOIA, which cannot properly be said to be English legislation. FOIA covers UK-wide public bodies (such as UK Government departments, the BBC, UCAS, the British Transport Police and other); it can be used by people living in Scotland. There is also no separate Norther Irish FOI law and FOIA applies to bodies such as departments of the Northern Irish Government and the Police Service of Northern Ireland. Furthermore, it is possible for appeals against the Upper Tribunal to be taken to the Court of Session and the UK Commissioner can, for example, under section 54, make certifications to the Court of Session.

It appears that what the Court meant by “English legislation” is that the decision in Dransfield was not binding upon the SIC as the SIC is concerned with the enforcement of FOISA – an Act of the Scottish Parliament – rather than FOIA – an Act of the UK Parliament. I may, of course, be entirely wrong and the Court of Session has fundamentally misunderstood FOIA and the distinction between FOIA and FOISA. However, this is not really a matter upon which anything of substance in Beggs can be said to turn. It appears that the Court has essentially adopted the reasoning of Arden LJ and supplemented it with some of its own.

Also by way of preliminary comment the Court notes that Arden LJ expressly declined to offer a definition of or test for “vexatious” or “vexatiousness” (para 26) and so it was incorrect to argue that Dransfield set out a “test” for vexatious requests. The court went on (also at para 26) to state that “[i]t would be remarkable if the word “vexatious” when found in section 14(1) of the English Act of 2000 meant something different from the same word when found in section 14(1) of the Scottish Act of 2002; the terms of the two subsections are essentially identical.”

However, the Court of Session found that there was much in the judgment of Arden LJ that they would agree with and quote paragraph 68 of the judgment of Arden LJ with approval. The Court of Session, perhaps importantly, appears to have approved of the view that Arden LJ took that the rights in FOIA were constitutional in nature (para 28). The court also held that when assessing whether a request is vexatious or not, it must be viewed objectively. In the decision under challenge, the SIC had concluded that when viewed objectively the information sought was of no value to the Appellant. The First Division held that had the SIC followed Dransfield (which she was not obliged to do so) then she would have correctly reached the same conclusion: that Mr Beggs’ request was vexatious (para 30).

In terms of the irrationality ground of appeal, this was dealt with more swiftly by the Court. Counsel for the Appellant had characterised the three matters which the Appellant argued had been overlooked by the Court, were material.

The first matter was the Appellant’s express disavowal of any direct and personal attack. The Appellant had expressly disavowed in his request that there was any such attack. However, the Solicitor Advocate for the SIC argued that the contents of a letter sent to one of the SIC’s officers revealed the Appellant’s purpose; the Appellant’s purpose was “not to obtain information as such” (para 33) rather it was with a view to pursuing complaints about their conduct.” (also at para 33).

The court held that “the presence of a malicious motive may point to a request being vexatious the absence of a malicious motive does not point to a request not being vexatious” (para 33). In essence, while the Court appears to have been sceptical of the Appellant’s express disavowal of personal attack it seems that even if it had not been sceptical, the disavowal may not have assisted the Appellant anyway. The Court again expressed the objective nature of assessing whether a request is vexatious and agreed with the SIC that a request may be harassing even if that is not what is intended by the requester.

The second consideration referred to the past conduct of the authority; these requests appear to have been the result of the Scottish Prison Service putting forward inaccurate information in earlier proceedings before the Court of Session. The Court approved of the view of Arden LJ in respect of vengeful motives – such a motive might itself be an indicator that a request is vexatious. The court’s position here is fairly broad, but it does not appear to close off legitimate use of FOISA to uncover evidence of wrongdoing within a Scottish public authority. However, it is fairly clear that if a requester is using

The third consideration related to the importance of the information requested; the court concluded that the information was objectively of no value and this was therefore not a material consideration.

Comment
This is the first time that the vexatious requests provision in FOISA has been considered by the Scottish courts and will now be the leading case in applying section 14(1) of FOISA. The decision essentially approves of the approach set out by the English and Welsh Court of Appeal in Dransfield. It is important to remember that a request must be considered objectively. There is no express test for vexatious requests either under FOIA or FOISA, but it will be important for Scottish public authorities to keep in mind the constitutional nature of the rights in FOISA. With this in mind, the threshold for applying the provision in section 14(1) of FOISA is a high one.

The Court of Session considers that, when Arden LJ used the phrase “no reasonable foundation for thinking that the information sought would be of value”, it appears that Arden LJ was trying to encapsulate an idea of “gross disproportion as between much trouble inevitably caused and little benefit possibly gained.” How much traction this comment of the Court of Session will have in terms of the application of section 14 of FOIA (given that the Court of Session’s judgments in FOISA cases are of only persuasive authority to the Tribunals and English and Welsh Courts) remains to be seen. Of course, should Beggs seek permission (and be granted permission) to appeal to the Supreme Court we may get a definitive view from(the now)  Lady Arden on whether the Court of Session has correctly interpreted what she meant when sitting in the English and Welsh Court of Appeal.

For the time being, whether or not the Court of Session was right in what it said, this is now (subject to any appeal) the law as it applies in Scotland vis-à-vis FOISA. When considering whether a requester has a reasonable foundation for thinking that the information sought would be of value, it is necessary to look (objectively) at what value there is in the information (a mere assertion by the Applicant that it is of value will not itself be sufficient) and balance that against the inevitable burden that answering the request will place on the authority: they are inversely proportional to one another.

From the perspective of requesters, it is likely to be of little assistance to include express statements in requests that the request is not a personal attack on the authority or a member of its staff and even if you have no intent to cause harassment your request might well have that effect. Your request will be considered objectively in light of its facts and circumstances (and comments made in later correspondence may well be seen as tending to show the opposite).

The decision in Beggs is not likely to have much, if any, impact upon the way in which the vexatious requests provisions in FOISA operate in practice. The Court has essentially approved of the approach to the identical provisions under FOIA. In the absence of any previous authority from the Scottish courts in respect of section 14, the SIC and Scottish public authorities have historically found Dransfield to be persuasive and used it as a basis for understanding what section 14 means.

In short, to decide whether a request is vexatious it is necessary to consider the request objectively on its own facts and circumstances. There is no formula or checklist that can be followed which will give you a definitive answer.

Alistair Sloan

If you would like advice or assistance in respect of a Freedom of Information matter or a data protection/privacy issue then contact Alistair Sloan on 0141 229 0880 or you can send him an E-mail.