Dr Ian Graham v The Scottish Information Commissioner  CSIH 57 is a rare decision of the Court of Session in an appeal against a decision of the Scottish Information Commissioner, the last one coming almost 12 months ago. The case was considered by the Second Division (with the bench comprising of the Lord Justice Clerk, Lord Malcolm and Lord Glennie) with Lord Glennie delivering the Opinion of the Court.
Before a Scottish public authority is required to release information, it actually has to hold it and information will not be held, according to the law, if it is held by the Scottish public authority on behalf of a third party. The question that was considered in the appeal by Dr Graham was on this fundamental point: whether the Scottish public authority held the information or not; and in particular whether information was held by a Council on behalf of a third party (in this case, the Returning Officer).
In January 2018, Dr Graham requested the following information from Aberdeenshire Council: (1) a list of the contracts called off by the council from the framework agreement, (2) invoice and order copies for each contract, (3) payment confirmation from the council of the invoices and (4) whether the council reclaimed the input VAT on the invoice. The framework agreement in question was for the provision of electoral services to the returning officer. In terms of the contract (and of importance for this appeal), the Council assumed obligations and liabilities under the contract and also had responsibilities and liabilities in respect of the procurement process.
Whilst the Council ultimately released information in relation to parts (3) and (4) of his request, initially the Council also claimed that it did not hold this information for the purposes of the Freedom of Information (Scotland) Act 2002 (“FIOSA”). The Council’s argument was that because a returning officer, although an official from within the council, was legally a separate entity from the rest of the council when acting in their capacity as returning officer, they only held the information on behalf of the returning officer and not in their own right. Dr Graham was dissatisfied with this and applied to the Scottish Information Commissioner for a decision on whether the Council had complied with its disclosure obligations under FOISA. The Commissioner upheld the Council’s decision, determining that the Council did not hold the information for the purposes of FOISA, but rather held it on behalf of the returning officer.
Counsel for the Appellant argued that the word ‘held’ was being submitted to too much scrutiny, as well as drawing attention to the spirit in which the FOISA had been made; that being to make information available to the public. Counsel contended that a liberal approach should be taken to the interpretation of this provision. Reference was made by the Appellant’s Counsel to University and Colleges Admission Service v Information Commissioner  UKUT 0557 (AAC) and Common Services Agency v Scottish Information Commissioner 2008 SC (HL) 184. Counsel for the Appellant further drew upon University of Newcastle v Information Commissioner  UKUT 185 (AAC) to demonstrate how a more common-sense approach was preferable. The broader interpretation of ‘held’ was further supported by the decision of the Upper Tribunal in Department of Health v Information Commissioner where it was held that a ministerial diary was ‘held’ by a department purely as a historical record for reference purposes. With reference to the current case, he ultimately claimed that the differentiation between the council holding the information for itself or on behalf of the returning officer was immaterial and indeed that both conditions could be fulfilled simultaneously in the present circumstances; with the fine-tooth investigation of the council election laws amounting to little more than prevaricating.
The Court allowed Dr Graham’s appeal, emphasising that “that the relevant provisions of FOISA should, so far as possible, be interpreted in a manner consistent with the policy of the Act, namely the desirability of making information available to the public, all in the interests of promoting open, transparent and accountable government.”  The court also held “that the words and expressions used in the Act should, so far as possible, be given their ordinary and natural meaning” and that “[t]here should be no scope for the introduction of technicalities, unnecessary legal concepts calculated to over-complicate matters and, by so doing, to restrict the disclosure of relevant information.” .
The Court approved of and agreed with the reasoning given by the Upper Tribunal at paragraphs 21-22 of its decision in University of Newcastle. In essence, a Scottish public authority will hold information if it has more than a de minimis interest in the information. That is to say, it will only fall outside of the scope of FOISA if it has “no (or no material) interest of its own” in the information.  As a result of the Court’s decision, it reduced the Commissioner’s decision and remitted the matter back to him so that he could reconsider Dr. Graham’s application in light of its opinion.
The effect of this decision should be to widen the scope of information that is available to the public under FOISA. Scottish public authorities and the Commissioner will be required to take a more holistic approach in future to deciding whether information is only held by the Scottish public authority on behalf of a third party. A more practical approach requires to be taken than simply looking at whether the Scottish public authority and the third party are separate entities from one another; consideration must be given to the underlying factual matrix. The opinion of the Court also re-iterates previous comments by the courts that the Act should be interpreted in a way that isn’t too complex or technical.
Our Alistair Sloan acted for the successful appellant in this case, instructing John MacGregor, Advocate.
Danny Cummins (Trainee Solicitor)
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I was the appellant.
The request related to the contract documentation for contracts between a local authority and suppliers for goods and services which would be delivered to the independent election returning officer. Observant readers of the decision and this summary will note that the arguments of the SIC for the information not being held are not included; this is because they were not made. Any observer in the Court of Session waiting to hear the Information Commissioner’s arguments outlining the circumstances under which a public authority does not “hold” for FOISA the contract documentation for their own contracts would have been cruelly disappointed.
So how did it get this far? One possible clue is in the Commissioner’s guidance on Information Not Held http://www.itspublicknowledge.info/nmsruntime/saveasdialog.aspx?lID=11402&sID=11131 . At paragraph 17, following reference to a control test, it states: ” A more important question is whether the information relates to the functions and core business activities of the authority: if it does, then it is likely that the information is held by the public authority in its own right.” Procuring goods and services for the returning officer is not a statutory function or core business activity of a public authority. This guidance has the potentially perverse effect of placing information relating to a public authority acting outwith its powers on behalf of another body exempt from FOISA. This guidance needs reviewing in the light of the Court of Session decision to prevent public authorities, and the Information Commissioner, incorrectly applying S2(a)(i) of FOISA.
Finally, the process leading to this decision exposes, to me, weaknesses in the FOISA appeals process. A citizen makes a request to a public authority. The public authority responds with a short s2(a)(i) response that the information is held for person A, so not “held” for FOISA. The citizen asks for a review, putting forward an argument why it is held, but it gets the same minimal response. The citizen submits a S47 application for a decision by the Commissioner, with an even more detailed argument. Under S49(3)(a) the Commissioner shares the application with the public authority. The authority responds to the Commissioner with a statement of facts and legal argument supporting the claim that the information is not held. These communications are not shared with the applicant and are exempted from FOI by claims of S30(c) exemptions and S45 confidentiality. The Commissioner’s decision will then include a paraphrasing of the authority’s statements of fact. The first the citizen knows of these facts is when the Commissioner’s decision hits her doormat, but by then they can only appeal to the Court of Session on the legal points and not on the case facts. S49(4) of FOISA gives the Commissioner the power to “endeavour to effect a settlement between the applicant and that authority” before publishing his decision, which would assumably require the citizen to be made aware of the gist of the authority’s comments, but this power seems to be rarely used. The effect of the current process is that we have a legal process where one side, the applicant, can never challenge the claims of fact of the other side, the public authority, and can only challenge their legal reasoning in the Court of Session.