Opinion of the Court delivered by The Lord President
The Scottish Ministers
v
The Scottish Information
Commissioner
(William Alexander's Application)
and
The Scottish Ministers
v
The Scottish Information
Commissioner
(David Elstone and Martin Willams's
Applications)
SUMMARY
23 January 2007
The First
Division of the Court of Session has refused appeals by the Scottish Ministers
against decisions made by the Scottish Information Commissioner in respect of
applications made to him by (1) Mr. William Alexander and (2) Mr. David
Elstone and Mr. Martin Williams.
Mr.
Alexander had requested the Scottish Ministers to give him information in
relation to advice given to Ministers and in relation to other matters
pertinent to why sections 25 to 29 of the Law Reform (Miscellaneous
Provisions)(Scotland) Act 1990 had not been brought into force. These sections made provision by which any
professional or other body might, subject to certain statutory arrangements,
enable its members to acquire rights to conduct litigation on behalf of members
of the public and rights of audience in the courts. The Scottish Ministers, with the exception of
certain documents which they released, refused that request. Mr. Alexander applied to the Commissioner who
accepted as justified some of the objections taken by the Scottish Ministers to
the release of information but ordered the release of certain other information
held by them. In the appeal against the
Commissioner's decision the Scottish Ministers argued that the Commissioner had
failed to recognise that in some cases it might be possible, where the
exemption in question was based on the prejudicial effect of releasing
information, to identify exempt information by reference to classes or groups
of documents - without necessarily having regard to their particular
content. The court rejected that
argument, concluding that in relation to such an exemption it was necessary to
proceed by examination of the content of individual documents. A number of other criticisms made by the
Scottish Ministers to release of information were also rejected by the court.
Mr. Elstone
and Mr. Williams had each requested the Scottish Ministers to give them
paperwork/correspondence surrounding the decision of the Scottish Ministers not
themselves to decide an application made to North Ayrshire Council for planning
consent for a waste disposal and ecological conservation site are at Trearne
Quarry, Gateside. Their requests were
refused. They each applied to the
Commissioner who decided that in some instances the Scottish Ministers had
insufficient grounds for withholding the information in question. He ordered the release of that
information. In appealing against his
decision the Scottish Ministers again argued that the Commissioner had failed
to recognise the possibility of identifying exempt information by reference to
classes or groups of documents. They
also advanced certain other arguments.
Again the court upheld the Commissioner's decision.
NOTE
This summary is provided to assist in understanding the Court's
decision. It does not form part of the
reasons for that decision. The full
report of the Court is the only authoritative document.
The full opinion will be available
on the Scottish Courts website today at this location:
http://www.scotcourts.gov.uk/opinions/2007CSIH08.html
|
FIRST DIVISION, INNER HOUSE, COURT OF SESSION
|
Lord President
Lord Nimmo Smith
Sir David Edward
|
XA2/06 and XA6/06
OPINION OF THE COURT
delivered by THE LORD
PRESIDENT
in
APPEALS
by
(1) THE SCOTTISH MINISTERS
Appellants;
against
THE SCOTTISH INFORMATION
COMMISSIONER
(William Alexander's Application)
Respondent;
and
(2) THE SCOTTISH MINISTERS
Appellants;
against
THE SCOTTISH INFORMATION
COMMISSIONER
(David Elstone and Martin Williams's Applications)
Respondent:
_______
|
Act: Keen, Q.C., McBrearty; Office of the Solicitor to the Scottish
Executive
Alt: Cullen Q.C., M. Ross; Brodies, LLP
23 January 2007
Mr. Alexander's
application - Background
[1] On 1
November 1990
the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 received the Royal
Assent. By section 75(2) it was provided
that its provisions should come into force on such days as the Secretary of
State (now the Scottish Ministers) might appoint. Sections 25 to 29 inclusive made provision
under which any professional or other body might, subject to certain statutory
arrangements, enable any of its members who was a natural person to acquire
rights to conduct litigation on behalf of members of the public and rights of
audience in the courts. Sections 25 to
29 have not been brought into force.
[2] Mr. William
Alexander has an interest in these provisions.
On 5 January 2005 he wrote to the Minister for Justice
asking to be provided with any information which the Scottish Ministers held
regarding the coming into force of sections 25 to 29. The information requested comprised:
(a) information
including, but not restricted to, details of any advice given to
Ministers and notes of meetings;
(b) this
information to include the source of the suggestion that the
commencement of sections 25 to 29
will be a burden on the courts; whether
this view was taken regarding all the courts in Scotland and, if not, which courts;
(c) information
about a meeting or meetings with the Lord President, intimated by
officials in January 1997;
(d) information
about a request made by Ross Finnie, MSP on 10 January
2003 to
the Justice Minister Jim Wallace,
asking for clarification on why a commencement order for sections 25 to 29 of
the Miscellaneous Provisions Act had not been brought in by the Executive.
[3] The Scottish
Ministers responded by letter dated 7 February 2005 advising Mr. Alexander
that the information relating to points (a) and (b) was exempt from disclosure
under section 29(1)(a) and (b) of the Freedom of Information (Scotland) Act
2002 ("the 2002 Act"), that information relating to point (c) was not held by
the Scottish Ministers and that, subject to certain information already
provided to Mr. Alexander, information relating to point (d) was exempt under
section 29(1)(b).
[4] Mr. Alexander
asked the Scottish Ministers to review their decision. They did so and by letter dated 10 March 2005
maintained their response to points (c) and (d) of the request but, in relation
to points (a) and (b), identified 32 documents which were covered by exemptions
but which, they concluded, it would be in the public interest to release, in
whole or in part, and 6 documents to which no exemption applied and which
should therefore be released. In
relation to other information held by them and relevant to the request they
maintained their position that such information should not be released. In that regard they relied upon a wider range
of exemptions than had been relied on earlier.
[5] On 11
March 2005
Mr. Alexander applied to the respondent for a decision as to whether the
request for information from the Scottish Ministers had been dealt with by them
in accordance with Part 1 of the 2002 Act.
Thereafter the respondent carried out his own inquiry, which included an
examination of a substantial number of documents which the Scottish Ministers
had withheld from Mr. Alexander and an analysis of these documents against the
exemptions relied on. On 24
November 2005
the respondent issued his decision on Mr. Alexander's application to him. By that decision he held that certain
information held by the Scottish Ministers was such as had justifiably been
withheld from disclosure to Mr. Alexander;
certain other information he ordered to be released. In that respect he required the Scottish
Ministers to provide Mr. Alexander with the documents, in whole or in part,
specified in an appendix annexed to his decision. Against that decision the Scottish Ministers
have appealed to this court under section 56 of the Act.
The exemptions
discussed in the appeal
[6] The
exemptions relied on by the Scottish Ministers and discussed in the course of
the appeal were those provided for by sections 25(1), 36(1), 28(1), 29(1)(a),
30(b) and 30(c) (arranged in the order in which they are dealt with in the
respondent's decision). None of these
confers an absolute exemption.
Accordingly, the obligation to disclose applies only to the extent that
"(b) in all the circumstances of the
case the public interest in disclosing the information is not outweighed by
that in maintaining the exemption" (section 2(1)). The specified sections are in the following
terms:
"25(1) Information which the applicant can
reasonably obtain other than by requesting it under section 1(1) is exempt
information".
"36(1) Information in respect of which a claim to
confidentiality of communications could be maintained in legal proceedings is
exempt information".
"28(1) Information is exempt information if its
disclosure under this Act would, or would be likely to, prejudice substantially
relations between any administration in the United Kingdom and any other such
administration."
[Section 28(2) defines
'administration in the United Kingdom' as including 'the Government of the
United Kingdom' and 'the Scottish Administration'].
"29(1) Information held by the Scottish
Administration is exempt information if it relates to -
(a) the
formulation or development of government policy;
... ".
"30 Information
is exempt information if its disclosure under this Act -
...
(b) would,
or would be likely to, inhibit substantially -
(i) the
free and frank provision of advice; or
(ii) the
free and frank exchange of views for the purposes of
deliberation; or
(c) would
otherwise prejudice substantially, or be likely to prejudice
substantially, the effective conduct
of public affairs".
The respondent's
approach to the public interest in disclosure
[7] In
circumstances where the respondent reached the view that a non-absolute
exemption applied, he required to consider the public interest in disclosing
the information. He expressed his views
on that public interest at paragraphs 78-87 of his decision as follows:
"Public
interest in access to the information requested
78. I
consider the public interest in the information withheld to be mainly
focused on the following areas:
a) the reasons for the postponement
of legislative measures passed by a democratically elected parliament some 15
years ago.
b) the general debate around the
issue of competition in the legal services market.
The delay in commencing sections 25
to 29
79. It
is not uncommon for sections of an Act of Parliament to have
commencement delayed in this way (at
the time of writing, 39 Acts passed between 1990 and 1995 have sections which
have never been brought into force).
However, it seems to me to be reasonable for citizens to question why
legislation has still not been commenced after 15 years. 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.
80. Mr
Alexander has pointed out that the equivalent legislation came into
force in England and Wales 15 years ago under the Court[s] and
Legal Services Act 1990, and that plans for increasing competition still
further are currently being considered there.
He believes that he should be able to challenge the reasons for the
delay in Scotland, but cannot do so until he is given
access to the facts behind the decision to delay commencement.
81. Documents
already released show that, at several points during the last
15 years, Ministers or officials
agreed that sections 25 to 29 of the Miscellaneous Provisions Act should be
brought into effect, and even proposed dates by which work on implementation
should start,. This strengthens the
public interest in gaining access to information which would fully explain why
such agreements were overturned or set aside.
82. Mr
Alexander is not the only person to have asked why these measures
have never been commenced. MSPs on the Scottish Parliament's public petitions
committee asked the same question when considering a petition brought by Mr
Alexander, and in 2002 the Scottish Consumer Council asked why the present
policy view has been taken, expressing surprise that the provisions have never
been brought into force.
83. The
Executive has stated that it has already advised Mr Alexander of
the Executive's reasons for not yet
commencing this legislation and that release of the documents considered in
this case would add little to the information in the public domain. However, it is clear to me after studying the
documents in this case that the reasons for non-commencement have changed over
time, and are more complex and varied than the reasons presented to
Mr Alexander.
Competition in the legal services
market
84. It
could be argued that the implementation of sections 25 to 29 of the
Miscellaneous Provisions Act has not
so far been a matter of widespread national concern in Scotland.
However, the issue of opening up competition in the provision of legal
services has been increasingly attracting attention (including a draft
directive from the European Commission in February 2004) and approaches have
been made to the Executive from a range of bodies including the Scottish
Consumer Council, the Chartered Institute of Patent Agents and the Office of
Fair Trading.
85. The
Westminster Parliament has recently announced
proposals for
reform of the legal profession in England and Wales, following the report received from
Sir David Clementi in 2004. The
government proposes to allow outside firms to own and run law firms in England and Wales - the so-called 'Tesco law'. Following the government's announcement,
several media reports highlighted the disparity between the legal services
market for consumers in England and Wales and those in Scotland.
86. Mr
Alexander has argued that proper debate on the issue will not take
place without general access to all
the relevant information. He believes
that commencing sections 25 to 29 would go some way towards obtaining affordable
justice for people who have no means of paying high legal fees and who are not
successful in obtaining legal aid. Mr
Alexander has pointed out the differences between England and Scotland in this respect.
Public Interest - Conclusion
87. I
believe that the issues considered above demonstrate a strong public
interest in the release of
information that would explain why sections 25 to 29 of the Miscellaneous
Provisions Act have never been commenced.
The exemptions applied to such information must be considered in the
context of the public interest in releasing the information."
No challenge was made to the reasoning in these paragraphs.
The respondent's
reasoning in relation to the exemptions in sections 30(b) and (c)
[8] The main
focus in the excellent debate with which we were favoured was upon the
respondent's treatment of the exemptions provided for in section 30(b) and
(c). In that regard the respondent
stated:
"Sections
30(b)(i) and (ii) - inhibit substantially provision of advice or exchange of views
66. Sections
30(b)(i) and (ii) allow information to be withheld if it would,
or would be likely to, inhibit
substantially the free and frank provision of advice or the free and frank
exchange of views for the purposes of deliberation.
67. In
applying these exemptions the main consideration is not whether the
information constitutes advice or
opinion, but whether the release of the information would inhibit substantially
the provision of advice or the exchange of views. The Executive's guidance to its staff on the
application of section 30(b) points out that the word 'inhibit' suggests a
suppressive effect, so that communication in future would be less likely, or
would be more reticent or less inclusive.
68. The
Executive has argued that disclosure of any advice or opinion is
likely to constrain officials and
other stakeholders from providing candid advice in future, which will
substantially prejudice the conduct of public affairs by jeopardising the
effectiveness of government. The Executive
appears to have treated the exemptions in section 30(b)(i) and (ii) as class
exemptions, rather than assessing whether the release of the particular advice
or opinion contained within each document would be capable of having an
inhibiting effect. I do not accept that
the release of any statement of advice or opinion in one case necessarily
implies that such information would be released in other cases. Each case brought to me for decision is
assessed on the facts and circumstances surrounding that particular case. My views on the use of this exemption are
discussed more fully in my decision 041/2005.
69 As
the Executive has not provided me with specific reasons why each
document withheld under these
exemptions would substantially inhibit the provision of advice or opinion in
future, I have made my own assessment of the effects of releasing the
information, based on the apparent sensitivity of the information and its
relationship to the public interest issues identified in paragraphs 78 -87. I have found that the exemptions in 30(b)(i)
and 30(b)(ii) have been misapplied to the following documents:
[A list of documents is then given]
70. In
the following cases, I have found that the exemptions in sections
30(b)(i) and (ii) were correctly
applied, but the public interest issues identified in paragraphs 78 - 87 below
outweigh the exemption.
[A list of documents is then given]
In several instances other exemptions
have been applied to these documents:
these exemptions are considered elsewhere in this decision notice.
71. In
the following case, I have concluded that the exemption in section
30(b)(i) should be upheld and part of
the information withheld:
[A part document is then specified]
72. I
have also decided that certain information should be withheld under
section 30(b), even although the
Executive has not cited this exemption in relation to the documents
concerned. I consider that all or part
of information in the documents cited below would, if released, be likely to
inhibit substantially the free and frank provision of advice or free and frank
discussion. Full details are in the
schedule of documents at Appendix 1.
[Two documents are then specified]
Section 30(c) - Prejudice to effective conduct of public affairs
73. Section
30(c) allows public authorities to withhold information that
would 'otherwise prejudice
substantially the effective conduct of public affairs'. This is a broad exemption, and I expect any
public authority citing it to show what specific harm would be caused to the
conduct of public affairs by the release of the information.
74. As
with sections 30(b)(i) and (ii), I do not consider that the Executive
has provided me with sufficient
justification for the use of the exemption in 30(c) where it has been applied
to documents in this case. I have
therefore made my own assessment of the likely effects of releasing the
information concerned, based on the nature of the information and its relevance
to the public interest issues identified in paragraphs 78 -87.
75. On
this basis I have decided that some of the information in the
following documents should be
withheld under this exemption:
[A list of documents and
part-documents is then given]
76. I
have decided that the public interest (as discussed in paragraphs 78 -
87 below) in the following documents
is sufficiently strong to justify their release even though the exemption in
section 30(c) has been correctly applied:
[A list of documents and
part-documents is then given]
Other exemptions have been applied to
these documents: these exemptions are
considered elsewhere in this decision notice.
77. I
consider that the exemption in section 30(c) has been misapplied to
the following documents:
[A list of documents is then given]
Other exemptions have been applied to
these documents: these exemptions are
considered elsewhere in this decision notice."
Submissions for the
appellants in respect of the application of section 30
[9] Counsel for
the Scottish Ministers acknowledged that the argument advanced to the
respondent on behalf of the Executive had been too widely expressed in the
proposition that
" ... disclosure of any advice or
opinion is likely to constrain officials and other stakeholders from providing
candid advice in future, which will substantially prejudice the conduct of
public affairs by jeopardising the effectiveness of Government" (paragraph 68).
However, the respondent, it was submitted, had (in the
reasoning which followed) excluded the possibility of there ever being a
narrower class or type of information which, viewed as a class or type
independently of the particular content of individual documents, qualified for
exemption under section 30. He had erred
in law in concluding that the engagement of these exemptions must necessarily
involve a document by document assessment.
While the general objective of the statute was to allow greater access
to information, including advice given and views expressed, it was clearly
necessary that Ministers (or other public persons) and their advisers should
have a measure of "private space"; otherwise
there were risks that disclosure would be made before views had properly
matured and that the public record would be incomplete due to an increased
tendency not to record advice given.
Section 29 conferred an express (non-absolute) exemption in relation to
categories of information. Section 30(b)
and (c) provided for further exemptions where the disclosure of the information
would have, or would be likely to have, certain effects, namely, substantial
inhibition or likely substantial inhibition of the free and frank provision of
information or the free and frank exchange of views for the purposes of
deliberation and substantial prejudice or likely prejudice otherwise to the
conduct of public affairs. It was not
necessarily the content of individual documents which would have such
effects; a class of documents,
irrespective of individual content, might equally engage this exemption. Section 18(1) (which provided that an authority
might in certain circumstances give a notice which did not disclose whether the
information requested existed or was held) might apply to such a class of
information. Classes of information
applicable to section 30 might include such as disclosed that a particular
proposal (say, the building of a nuclear power station) was being discussed by
Ministers or officials or that advice was being given by officials to Ministers
about such a proposal, quite apart from the content of any advice given. So, while section 30 did not per se provide for a class exemption,
its application might in some circumstances involve the identification of
documents by class. The respondent's
error of law lay in his failure to recognise that possibility. Section 30 was in terms concerned with the
effect of disclosure. That effect might
result from a document being within a class, the disclosure of which would or
might have the adverse effect - quite irrespective of the content of particular
documents. The fact that a class of
document might be engaged by section 30 did not mean that they would not be
disclosed; it meant only that they would
qualify for the weighing exercise under section 2. In his decision 041/2005 (Luyken v The Scottish Executive, 25 October 2005) the respondent had,
particularly at paragraph 15, made a similar error by listing, in bullet
points, elements which turned upon individual content without having due regard
to class effect. Moreover, in dealing
with these exemptions the respondent had failed to maintain a clear distinction
between the engagement of the relevant exemption and the application of the
public interest test in section 2. He
had further erred in adopting (in relation to section 30(b)) "apparent
sensitivity" as the sole test and, in relation to section 30(c), a "nature of
the information" test, rather than the statutory criteria. Moreover, the respondent had failed to give
proper and adequate reasons for his decision that in the circumstances these
tests were met. Reference was made to Wordie Property Co. Ltd. v Secretary of State for Scotland 1984 SLT
345, per Lord President Emslie at page 348, Singh v Secretary of State
for the Home Department 2000 SC 219, at pages 222E-223A, City of Edinburgh Council v Secretary of State for Scotland 1998 SC (HL) 33, per Lord Clyde at page 49D-F and South
Bucks D C v Porter (No. 2) [2004] 1 WLR 1953, per Lord Brown of Eaton-under-Heywood at page 1964. Cases which dealt with the use of public
interest immunity certificates were not relevant. Reference in that connection was made to Glasgow Corporation v Central Land Board 1956 SC (HL) 1,
especially per Lord Radcliffe at pages 19-20, Conway v Rimmer [1968] AC 910, especially per Lord Upjohn at pages 993-4 and Burmah Oil Co. v Bank of
England [1980] AC 1090, per Lord Keith of Kinkel at page 1133. In the present case the court was concerned
about the inhibition on the recording of advice, not the giving of advice. It was also concerned with general freedom of
information as of right not, as in the cases cited, with the off chance that in
some future litigation the court might order disclosure for the particular
purposes of that litigation. Here the
legislature had recognised that disclosure might have the effect of inhibiting
the free and frank provision of advice, etc.
Submissions for the
respondent in respect of the application of section 30
[10] Counsel for
the respondent in opening observed that, while "information" had been defined
in the Oxford English Dictionary as "instructive knowledge" (there was no
definition in the statute), an applicant did not need to explain why he wanted
the information requested; subject to
the exemptions and to the application, where relevant, of the public interest
test, he was entitled under section 1 to be given the information. The statute had created a new public
interest, namely, a public interest in disclosure of information by public
bodies in Scotland, the list of which (given in Schedule 1 to the Act) was
long. As regards the exemptions in
section 30, counsel for the Scottish Ministers had acknowledged that what had
been put to the respondent in argument to him had been too broad a claim. He was now being criticised for failing to
accept an argument not put to him and for not acknowledging a class approach,
the formulation of which was even yet far from clear or obvious. The Scottish Ministers' argument had a theoretical
air about it. It appeared to be based on
a hypothetical class of information of significantly narrower definition than
that which had been identified to the respondent or, in the course of the
discussion, to the court. A class
approach was inappropriate to the exemptions provided for by section 30, which
were content-based exemptions. The
appellants could not exclude the respondent's jurisdiction by stamping a file
with "Advice to Ministers" or the like.
In contrast to section 29 (which did provide for class exemption in respect
of information held by the Scottish Administration) section 30, neither
expressly nor by implication, provided for exemption by class for information
which had a much wider range than that to which section 29 applied. Each case in which information was sought
required to be considered in its own circumstances. "Private space" was not to be protected by
the comfort of a class approach. There
was no justification for the suggestion that civil servants would fail to
record the advice they gave to Ministers.
The trenchant observations made by Lord Keith, albeit in the context of
public interest immunity certificates, at page 1133 in Burmah Oil Co. v Bank of
England were in point. Given the integrity
of the professional staff in the Scottish Administration, the argument advanced
by the Ministers was odd. In any event,
it appeared to go to the merits of the respondent's decision rather than to the
legal basis of it. Assistance could be
obtained from European jurisprudence where the necessity for a concrete,
individual examination in relation to access to information had been approved (Verein fur Konsumenteninformation v Commission of the European Communities
[2006] 2 C.M.L.R. 60, especially at paragraphs 69-71). As the respondent had recognised, there might
be documents which, if viewed in isolation, might appear to be innocuous but
which, if viewed in a wider context, might engage the exemption; but it was necessary to examine the
particular documents as well as the context before reaching a view. The introduction of a class approach to
section 30 was a distraction and simply led to confusion. On a fair reading of the respondent's
decision read as a whole, including both paragraphs which preceded and those
which followed the particular discussion in paragraphs 66 to 77, the respondent
had clearly distinguished between the engagement of the exemption and, if
engaged, whether section 2 required the disclosure of the information. He had in paragraph 68 made a cross reference
to his decision in 041/2005, the relevant terms of which (particularly
paragraph 15) required to be read into the present decision. "Sensitivity" was clearly linked to the
public interest consideration referred to in section 2. In assessing the strengths and weaknesses of
the section 2 public interest consideration the respondent had inevitably been
engaged in a weighing exercise of that consideration against the maintenance of
the exemption. The respondent had
complied with the duties imposed on him by section 49(6) of the Act. To the extent that there was an obligation on
him at common law to give proper and adequate reasons for his decision, the
respondent had done so. The standard was
not an exacting one (South Bucks D C v
Porter (No.2), per Lord Brown at page
1964). The appellants had ready access
to all the documents in question and could, and should, read the decision in
light of the treatment of each document.
Had the respondent endeavoured to give further particularisation, he
would have been at risk of disclosing the contents of the documents. To do so would have risked the commission of
a criminal offence under section 45 of the Act.
Discussion of the
application of section 30
[11] Section 1(1)
of the Act provides:
"A person who requests information
from a Scottish public authority which holds it is entitled to be given it by
the authority".
There is accordingly no restriction on the persons who on
application are entitled to be given information held by an authority; the scheduled list of public authorities in Scotland subject to the obligation to give
information is extensive. That the
statute creates or at least acknowledges a public interest in the disclosure of
requested information is confirmed by the terms of section 2(1) which requires,
in the case of non-absolute exemptions, the weighing of "the public interest in
disclosing information" against the public interest in maintaining the
exemption.
[12] Section 1
confers a general entitlement to information but is subject to sections 2, 9,
12 and 14 (section 2(6)). Section 9 is
concerned with fees, section 12 with excessive cost of compliance and section
14 with vexatious or repeated requests.
Otherwise, the broad effect of section 1 is restrained only by section 2
and the exemptions referred to in it. As
each is an exemption to a general entitlement it is for the public authority
relying on it to demonstrate that the exemption is engaged.
[13] Certain of the
exemptions apply by reason of the information in question being of a specified
type or class - for example, section 25(1) (information otherwise accessible),
section 29(1)(a) (formulation or development of Scottish Administration
policy), section 36 (confidentiality).
Others, including section 30, apply by reason of the prejudicial effect
which disclosure would have or would be likely to have. In each case it may be necessary at some
stage to examine particular information potentially disclosable in order to
ascertain whether or not it falls within an exemption. But the approach will be different. In the former case one will begin with the
defined class and then ascertain whether relevant information falls within
it. Thus, it may be possible to
conclude, without scrutiny of the content of each particular document, that a group
of documents (for example, all the documents in a particular file) falls, as a
group within the scope of the exemption in question. In the latter case one will necessarily begin
with the scrutiny of relevant individual documents and the ascertainment of
whether they contain particular information which, read in the context of
related information, has or is likely to have the specified prejudicial
effect. That is because it is only after
such scrutiny that it will be possible to say whether such information will
have or is likely to have such an effect.
The circumstance that one ends up with a "class", namely, with pieces of
information of that particular kind, does not mean that a class-based approach
to the exercise is ever legitimate. In
any event, whatever the procedural mechanisms employed, no method based on
classification was suggested to us which could satisfactorily and usefully have
been adopted, either generally or in any particular way, for the purposes of
the section 30 exemption in the present case.
[14] It is clear
and acknowledged that the argument presented by the Executive to the respondent
and recorded by him at paragraph 68 was too widely expressed. The respondent rightly rejected that
argument. We are unable to find any
error of law in the alternative approach which he adopted, namely, (1) that
each case was to be assessed on the facts and circumstances of that case and
(2) that the proper approach was to assess whether the release of the advice or
opinion contained within each document would be capable of having an inhibiting
effect. That approach acknowledges and
applies the principle that a piece of information viewed in context may qualify
as being non-disclosable, albeit viewed in isolation it might have appeared to
be innocuous. An approach to section 30
based on some a priori classification
would appear to inhibit rather than to advance the requisite exercise.
[15] In paragraph
69 the respondent proceeded to apply the reasoning of the preceding paragraph. Two exercises were required, first, whether
or not the exemption was engaged and, second, if it was, whether in terms of
section 2(1)(b) the public interest in maintaining the exemption was outweighed
by the public interest in disclosing the information in question. These exercises and their results in terms of
disclosure and non-disclosure of documents might have been expressed more
clearly than they were in paragraph 69 (as read with the immediately succeeding
paragraphs) but, reading these paragraphs fairly and in the context of the way
in which similar exercises had been carried out in earlier paragraphs (such as
in paragraphs 45-46) and of the respondent's conclusion at paragraphs 88-89, we
are satisfied that the respondent properly understood and applied the two-stage
test enjoined by the statute.
[16] As to the
expression "apparent sensitivity" in paragraph 69, we are not persuaded that
this discloses an inaccurate or incomplete approach to the exercise of
determining whether or not the exemption was engaged. Section 30 is concerned with prejudicial or
potentially prejudicial effect on the conduct of public affairs (whether by
substantially inhibiting the free and frank provision of advice or the free and
frank exchange of views for the purposes of deliberation, or otherwise) by
disclosure of the information in question.
Clearly such information may be sensitive in a number of respects. If the expression is read in the context of
paragraph 15 of decision 041/2005, which is expressly referred to in paragraph
68, it is clear that it embraces sensitivity in relation to issues such as
timing, content and subject-matter. In
paragraph 15 the respondent said:
" ... to insist that the release of any
advice to Ministers, regardless of its substance, would substantially inhibit
officials from providing any candid advice negates any sensible application of
the harm test. As I have consistently
stated I expect requests for information to be assessed on an individual basis,
taking into account the effects anticipated from the release of the particular
information involved. This would have to
consider:
·
the
subject-matter of the advice or opinion,
·
the
content of the advice and opinion itself,
·
the
manner in which the advice or opinion is expressed, and
·
whether
the timing of release would have any bearing (releasing advice or opinion
whilst a decision was being considered, and for which further views were still
being sought, might be more substantially inhibiting than once a decision has
been taken)."
[17] As to the duty
to give reasons, we accept the submission made on behalf of the respondent that
under the statute his duty, where he has decided that an authority has not
dealt with a request for information in accordance with Part 1 of the Act, is
confined to section 49(6) and that where, as here, the complaint is that the
authority has failed to comply with section 1 of the Act, it is sufficient for
the purposes of that statutory duty that the respondent specify that it is in
that respect that the authority has failed.
However, it was rightly accepted on behalf of the respondent before us
that there remains a common law duty on him to give proper and adequate reasons
for his decision. A number of familiar
authorities were cited in that respect.
[18] It is important,
in our view, when considering these authorities to bear in mind that the
respondent, in giving reasons for his decision, is necessarily restrained by
the need to avoid, deliberately or accidentally, disclosing information which
ought not to be disclosed. That
restraint also affects the ability of the court, if provided only with the respondent's
decision, to supervise the exercise by him of his powers. In the present case we were not given sight
either of the correspondence between the parties prior to the respondent's
decision or, except for the list of documents contained in the appendix
(restricted essentially to date and parties without disclosure of content), of
the information disclosed or undisclosed.
In these circumstances the scope for the detection of errors of law is
limited. We are unable to find any in
relation to the treatment of section 30 or its relationship to section 2. Disclosure may, of course, be made with
lawful authority (section 45(1)). Such
disclosure may be made to the extent that it is made for the purposes of
proceedings, including civil proceedings by virtue of the Act (section
45(2)(d)). In exceptional circumstances
resort might be made to disclosure for that purpose.
[19] For these
reasons we are not satisfied that any error of law has been demonstrated in
relation to the respondent's treatment of the exemption under section 30(b) or
the weighing exercise under section 2 of information held to fall within that
exemption.
[20] The criticisms
made by the appellants in relation to the exemption under section 30(c) were
essentially the same as those made in relation to that under section
30(b); the "class" argument is, in our
view, ill-founded, the two-stage exercise was sufficiently clearly undertaken
and "the nature of the information" was a sufficient explanation in the
circumstances of why it was held that the exemption was engaged.
The application of
other exemptions
[21] In relation to
section 28(1) (relations within the United Kingdom) the Scottish Ministers, in
this instance with support from the Department for Constitutional Affairs,
presented argument to the respondent that, although none of the information
withheld by them under section 28 had any protective marking to indicate that
the information was in any way sensitive, disclosure of any of the relevant documents
would substantially prejudice relationships between the Government of the
United Kingdom and the Scottish Executive, by deterring officials from sharing
experiences of policy operation in the future.
The Department also pointed out that the documents in question related
to an area of law reform "which remains of considerable interest and debate
from a policy perspective at this current time".
[22] In this instance
the appellants submitted that the respondent had again erred in law by failing
to recognise that the public interest in withholding documents might apply to a
class or group of documents. That
submission was in substance to the same effect as that advanced under reference
to section 30(b) and (c). For the same
reasons we reject it. Likewise we are
satisfied that the respondent recognised and applied the two-stage test and
gave reasons which, under reference to the question whether "release would
cause [the Scottish Administration or the Government of the United Kingdom] real, actual and significant harm"
were in the circumstances adequate.
[23] In relation to
section 29(1)(a) the respondent in his decision accepted that in most cases the
exemption was engaged, that is, that the information in question related to the
development of government policy. He
required thereafter to undertake the weighing exercise enjoined by section
2. In paragraphs 56 and 57 there is perhaps
a lack of clarity similar to that earlier discussed in relation to paragraph 69;
but again, reading the decision as a
whole we are satisfied that the respondent properly understood and applied the
two-stage test. The discussion of this
exemption involved an additional factor, namely the respondent's conclusion
that a distinctive and active phase of policy development started in February
2003. The appellants' counsel submitted
that it was not clear how that factor (which they did not maintain itself to be
irrelevant) fitted in, for the purposes of the weighing exercise under section
2, with the general policy considerations referred to in paragraphs 78-87. This was interrelated with a contention that
perusal of the appendix surprisingly revealed that some post-February 2003
documents had been ordered to be released.
In response, counsel for the respondent submitted that the matter of
dating was not separate from the general issue of public interest; the dates were simply an aspect of the
content of the documents, to be seen in the context of the development of
government policy against changes in the political landscape. All the documents listed in the appendix were
dated and, by reading it with the relative paragraphs, the respondent's
decision-making was clear. Without
disclosing information which should not be disclosed, he had adequately
explained the basis of his decision.
[24] Again, we are
of the view that the respondent's reasoning might have been more clearly
expressed than it was but that no error of law has been demonstrated. In this field it may be necessary to
distinguish between what it is not in the public interest to disclose because
to do so would impede the working of government and what would by its
disclosure simply embarrass Ministers or officials (see paragraph 75 of the
code of practice issued by the Ministers under section 60 of the Act). The giving of full reasons for making a
particular decision in this field may also be particularly difficult, given the
requirement not to disclose information which should not be disclosed. So far as concerns documents dated
post-February 1993 which have been ordered to be released, it is clear from the
respondent's reference in paragraph 53 to "most cases" that, following the
weighing exercise, he has accepted that some, but not all, documents in that
period should be disclosed.
[25] As regards
section 36 (confidentiality) the appellants' attack was restricted to the
adequacy of the reasoning given. In this
connection the respondent observed, at paragraph 36, that he was likely only to
order release of communications in respect of which a claim to confidentiality
could be maintained in legal proceedings "in highly compelling cases". In relation to two documents only did he,
having regard to the public interest issues described in paragraphs 79-83 (the
delay in commencing sections 25 to 29 of the 1990 Act), hold that the arguments
for disclosure outweighed the arguments against. There is nothing in the material before us to
demonstrate that in doing so he erred in law.
[26] Section 25
confers an absolute exemption (with respect to information which the applicant
can reasonably obtain otherwise than by a request under the Act). A question arose before us in relation only
to one document which, among others, had been identified in paragraph 31 for
disclosure but which was not listed in the appendix. This was a fax from Mr. Alexander upon which
words had been written by an official; only the manuscript was relevant to
disclosure. This inconsistency was
remedied by the respondent by his producing to us a fresh appendix which, among
other changes, included the document in question in the appended list. We would add, in this regard, that where
errors of an administrative nature, as we find this error to have been, are
noticed, it should not ordinarily be necessary to bring an appeal to remedy
them. The respondent has, in our view,
an implicit power to correct administrative errors drawn to his attention.
Mr. Elstone's and Mr.
Williams's applications
[27] Trearne Quarry,
Gateside, lies within the area for which North Ayrshire Council is the local
planning authority. In 2004 that Council
had before it an application for planning consent for a waste disposal and
ecological conservation area at the quarry.
On 4 April 2004 the planning sub-committee of the
Council agreed to refer the application to the Scottish Ministers and, subject
to an agreement being entered into under section 75 of the Town and Country
Planning (Scotland) Act 1997, to grant planning
permission subject to 18 conditions.
That decision was ratified by the Council on 11 May
2004. On 8 September 2004 the Scottish Ministers advised the
Council that they did not intend to issue a direction restricting the grant of
planning permission or requiring the application to be referred to them for
determination. Accordingly, the Council
was free to determine the application in the manner it thought fit.
[28] Mr. David
Elstone and Mr. Martin Williams respectively asked the Scottish Ministers to
supply copies of "all paperwork" and "all correspondence" surrounding the
decision of the Scottish Ministers not to "call in" the application. These requests were refused. After having each sought review by the
Scottish Ministers of these refusals, they applied to the respondent for a
decision on the matter. It was agreed
with these applicants that their cases be conjoined. In due course the respondent issued his
decision - to the effect that certain documents withheld by the Scottish
Ministers should be released. The
Scottish Ministers have appealed against that decision.
[29] Although a
number of exemptions were discussed by the respondent in his decision, only two
(section 30(b) and 30(c)) were in issue before us. In relation to the former, counsel intimated
that the challenge was restricted to whether there had been a proper approach
to the application of the exemption. It
was again acknowledged that the argument advanced by the Scottish Ministers
against disclosure had been too broadly expressed; but again it was submitted
that, as in Mr. Alexander's case, the approach adopted by the respondent
precluded consideration of documents on a group or class basis. For the reasons given in relation to Mr.
Alexander's case we reject that submission.
The respondent, rightly in our view, rejected the contention that the
release of the information withheld in this case (revealing the advice and
opinions of officials involved in the decision-making procedures) would as a
generality inhibit officials in the future from providing a clear analysis of
all the issues in a policy area. On the
other hand, he held that certain documents, if released, would be likely to
inhibit the exchange of similar advice and requests for advice in the future
and restricted the order for release accordingly. We are unable to discover any error of law in
that discriminating approach.
[30] In relation to
section 30(c) two aspects of the effective conduct of public affairs were in
issue; first, the deliberations of the
Council in respect of the, as yet, unfinalised planning application, the
envisaged consent being subject to the entering into of an agreement under
section 75 of the 1997 Act; and, second,
the possibility that the application might even at that stage be "called in" by
the Scottish Ministers. The respondent
made his own inquiry into these matters.
Enquiry of the local planning authority appears to have elicited a
response that, as at 3 August 2005 or shortly thereafter, planning
permission had already been granted. A
more accurate description, it emerged, was that, as earlier narrated, the
Council had, subject to a section 75 agreement being entered into, agreed to
grant conditional planning permission but had not formally granted
permission. Before us counsel for the
appellants criticised the respondent for proceeding, it was said, on a state of
affairs, ascertained by enquiry of the Council at a stage later than the date
of the Scottish Ministers' review of the request. Reference was made to sections 47(1)(b) and
49(6) of the Act. It was further
submitted that, as far as concerned any prejudice to the effective conduct of
public affairs, the respondent had unduly relied on the Council's view of the
matter, rather than upon his own judgement.
[31] Although the
history of events is not described with complete accuracy in the respondent's
decision (and required to be clarified in the course of the hearing before us),
there is, in our view, no sound basis for the criticism of him in relation to
the matter of timing. It is correct that
any issue of alleged failure by a public authority to comply with its statutory
obligations falls to be determined as at the date of the authority's notice
under section 21(5) of the Act. But it
does not appear that in this case the respondent proceeded upon any state of
affairs which occurred thereafter. He
was, of course, entitled to make such enquiries after that date as he thought
fit and reasonably to rely on any information pertinent to events prior to the
review notice which he elicited. In the
event it does not appear that he relied on any information bearing upon events
(as distinct from opinions expressed) subsequent to that date in respect of the
practical finality of the application, so far as concerned either the Council
or planning officials within the Scottish Administration. In these circumstances the respondent did
not, in our view, err in law in respect of the timing issue. On the matter of reliance on the views of
others, we are not persuaded that the respondent did otherwise than take such
views into account, arriving at his decision on the basis of his own judgement.
Disposal
[32] For the
reasons we have given we shall refuse both appeals.
