EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
	[2014] CSIH 10
Lord Menzies Lady Clark of Calton Lord Clarke	XA11/12 OPINION OF THE COURT delivered by LORD MENZIES in the Appeal under section 56 of the Freedom of Information (Scotland) Act by WILLIAM FREDERICK IAN BEGGS Appellant; against The Scottish Information Commissioner First Respondent; and The Chief Constable Strathclyde Police Second Respondent: against a decision of the Scottish Information Commissioner dated 16 December 2011 _______________

Act: Leighton; Drummond Miller LLP

First Respondent: Lindsay QC; Anderson Strathern LLP

Second Respondent: Barne; Simpson and Marwick WS

21 January 2014

Introduction
[1] The appellant is presently a prisoner within HMP Glenochil, having been sentenced to life imprisonment for the murder of Barry Wallace. The first respondent is the Scottish Information Commissioner. The second respondent is the Chief Constable Strathclyde Police. By letter dated 7 July 2010 the appellant requested the second respondent to provide the information specified in a schedule attached to the letter. The information sought related to facts and circumstances surrounding the death of Mr Wallace. The information sought was set out under seven general heads. Head (1) related to CCTV footage from cameras located in Kilmarnock. Head (2) related to a CCTV tape identified by reference to nightclub premises in Kilmarnock. Head (7) related to investigations carried out by the police in relation to a line of inquiry suggested by statements given to the police to which the appellant has access. The present appeal is concerned with three items on this schedule, namely (1)(e), (2)(c) and (7). Item (1)(e) sought "such additional information as has been derived from the 'sighting'"(of Mr Wallace on CCTV footage after a particular point); item (2)(c) sought "any information relative to sightings of the deceased, Barry Wallace, or (a named witness) at this locus (e.g. date, time etc.)"; and item (7) sought "all and any information as to steps taken to investigate the veracity of the claims which (a named witness) admitted having made or as to any steps taken to 'eliminate' (this witness) from the inquiry" (which claims, the schedule alleged, related to the witness being in the company of the deceased on the night in question and the suggestion of sexual relations).

[2] By letter dated 6 August 2010 the second respondent wrote to the appellant declining to disclose any of the information requested, on the basis that it was exempt from disclosure by reference to section 34(1)(a) and (b), section 35(1)(a) and (b), and section 38(1)(b) of the Freedom of Information (Scotland) Act 2002 ("the Act"). The appellant requested the second respondent to review this decision, and by letter dated 29 September 2010 the second respondent wrote to the appellant advising that on completion of the review, a decision had been taken to disclose certain of the information requested by the appellant, but this did not include the items referred to above.

[3] In October 2010 the appellant applied to the first respondent for a decision in terms of section 47(1) of the Act, and in May 2011 the first respondent required the second respondent to conduct a further review. By letter dated 27 June 2011 the second respondent wrote to the appellant stating that it had no further information on the first two items, and that in relation to the third item the information was exempt under sections 34(1)(a)(i) and (b) and 35(1)(a) and (b) of the Act. The appellant was dissatisfied with this result, and by letter dated 5 July 2011 he applied to the first respondent for a decision in terms of section 47(1) of the Act.

[4] On 16 December 2011 the first respondent issued decision 251/2011 in response to the appellant's application. The first respondent set out his conclusions on the public interest test at paragraphs 44 to 53 of the decision. On balance he found that the public interest in maintaining the exemptions in sections 34(1)(a)(i) and (b) outweighed that in disclosure of the information withheld from the appellant, and upheld the decision of Strathclyde Police to withhold the information in question. In the decision, the first respondent found that the second respondent was entitled to withhold the information sought, on the grounds that it was exempt from disclosure under section 34(1)(a)(i) and (b) of the Act. It is against this decision that the appellant has appealed to this court, in terms of section 56 of the Act.

The relevant sections of the Act

[5] "1 General entitlement

(1) A person who requests information from a Scottish public authority which holds it is entitled to be given it by the authority.

...

(6) This section is subject to sections 2, 9, 12 and 14.

2 Effect of Exemptions

(1) To information which is exempt information by virtue of any provision of Part 2, section 1 applies only to the extent that-

(a) the provision does not confer absolute exemption; and

(b) in all the circumstances of the case, the public interest in disclosing the information is not outweighed by that in maintaining the exemption.

...

34 Investigations by Scottish public authorities and proceedings arising out of such investigations

(1) Information is exempt information if it has at any time been held by a Scottish public authority for the purposes of-

(a) an investigation which the authority has a duty to conduct to ascertain whether a person-

(i) should be prosecuted for an offence; or

(ii) prosecuted for an offence is guilty of it;

(b) an investigation, conducted by the authority, which in the circumstances may lead to a decision by the authority to make a report to the procurator fiscal to enable it to be determined whether criminal proceedings should be instituted; or

(c) criminal proceedings instituted in consequence of a report made by the authority to the procurator fiscal.

...

35 Law Enforcement

(1) Information is exempt information if its disclosure under this Act would, or would be likely to, prejudice substantially-

(a) the prevention or detection of crime;

(b) the apprehension or prosecution of offenders; ..."

Submissions
[6] Counsel for each of the three parties to this appeal helpfully lodged full written notes of argument, which we do not seek to repeat here. The submissions for each of the parties may be summarised as follows.

Submissions for the appellant
[7] Counsel for the appellant submitted that the application and interpretation of the public interest test amounts to a point of law. The first respondent erred in the weight which he attached to the various factors which were before him, and he also erred in adopting general reasons for refusal rather than reasons specific to the present case. These two arguments were connected. Although counsel accepted that it might be said that the weight to be attached to various factors was a matter for the first respondent (and it was accepted that the first respondent was a specialist tribunal, so the first line of argument was difficult to advance), it was a symptom of the generalised approach which was the subject of attack in the second submission. The first respondent required to carry out a balancing exercise having regard to the individual circumstances of the case. In support of this proposition, counsel relied on a decision of the information tribunal in relation to the (English) Freedom of Information Act 2000 - Guardian Newspapers Ltd and Heather Brooke v The Information Commissioner EA/2006/0011, dated 4 January 2007 (particularly at paragraphs 82 to 87). Reference was also made to Export Credits Guarantee Department v Friends of the Earth [2008] EWHC 638 (Admin), [2008] Env L.R. 40 (particularly at paragraphs 26/27), McKie v Western Scottish Motor Traction Co 1952 SC 206 and Armstrong v The Information Commissioner (Information Tribunal Appeal Number EA/2008/0026, dated 14 October 2008).

[8] Counsel submitted that in the circumstances of the present case, the interests which were sought to be protected as exempt information by sections 34(1) and 35(1) were not so important as to outweigh the public interest in disclosing the information. These interests have considerable force before any trial, but their force diminishes after the trial. In the present case the appellant was convicted on 12 October 2001; standing this, the public interest in disclosing the information is not outweighed by that in maintaining the exemption. Section 34 loses much of its force after the conclusion of the criminal process. However, counsel accepted that there was a stronger public interest in maintaining exemption for witness statements than there is in relation to CCTV footage. (In the present case, the CCTV footage has been destroyed, and all that remains is a schedule of what it contained). The Commissioner's approach did not deal with the particular circumstances of this case, but only dealt with arguments at a general level. He was required by section 2(1)(b) to look to the circumstances of the case, and it was an error of law not to do so. For these reasons counsel moved us to allow the appeal and to remit the matter back to the Commissioner.

Submissions for the first respondent
[9] Senior counsel for the first respondent submitted that the appellant had identified no error of law by the first respondent, and invited us to refuse this appeal. He adopted his revised note of argument (no 27 of process). The Commissioner had applied himself properly to the issues and tests in sections 2(1) and 34(1), and had carried out the necessary balancing exercise between the competing public interests of disclosure and exemption. The appellant's submission regarding the weight which the Commissioner attached to the various factors before him was misconceived - the assessment of the weight to be attached to these factors was a matter for the Commissioner's judgment, and only if this could be shown to be perverse or irrational would an error of law result. There was no suggestion in this appeal of perversity or irrationality.

[10] The argument that the Commissioner did not have regard to the particular circumstances of this application was without merit - he clearly did have such regard. Both parties relied on general considerations, but this does not mean that they were irrelevant to the exercise which the Commissioner required to perform. The phrase "in all the circumstances of the case" is apt to include both individual and general circumstances. The submission by the appellant before the Commissioner (as recorded at paragraph 43 of the decision) was in general terms - the appellant had not placed any particular circumstances before the Commissioner, and had rested his application on generalities.

[11] The submission for the appellant that the weight to be attached to exemptions diminished with the passage of time is not well-founded - for example, section 58(2) provided that the exemption provided by section 35 falls away after 100 years, and as is made clear by paragraphs 143 and 144 of the explanatory notes to the Act, all other exemptions continue to apply in perpetuity.
Submissions for the second respondent
[12] Counsel for the second respondent adopted his note of argument. His primary submission was that an appeal to this court under section 56 of the Act was only competent on a point of law; the appellant does not challenge the application of the exemption conferred by section 34 to information requested by the appellant. The challenge is directed towards the Commissioner's application of the public interest test to the circumstances of this case. This is a matter within the exclusive province of the Commissioner - by analogy with Tesco Stores v Environment Secretary [1995] 1 WLR 759 at 788. It is not for the court to investigate, assess and weigh the evidence or to substitute its own views on the public interest test for those of the Commissioner. The appellant's complaints about the decision amount to no more than complaints that the Commissioner attached too much weight or too little weight to matters before him. As long as the Commissioner's decision on the weight to be attached to these matters is not perverse or irrational (and that is not suggested to be the case here) there is no error of law. The appeal should therefore be dismissed as disclosing no valid ground of appeal.

[13] The submission for the appellant, that the Commissioner must have regard only to circumstances that are specific to a case if an exemption is to be maintained, is misconceived. In most cases it will be appropriate for regard to be had to both the general and the specific circumstances of the case. This is consistent with the approach of the court in Export Credits Guarantee Department v Friends of the Earth (particularly at paragraphs 33 to 38). In the present case the Commissioner clearly did have regard to both. He did not fall into error of law, and the appeal should be refused.
Discussion
[14] In advancing his first submission that the Commissioner's alleged failure to give appropriate weight to all the facts and circumstances amounted to an error of law, counsel for the appellant accepted that the Commissioner was a specialist tribunal, and that the submission was difficult to advance on its own. He accepted that it might be said that the weight to be attached to the various factors before him was a matter for the Commissioner, and that provided that he did not exercise his judgment perversely or irrationally (which was not suggested in this case) his assessment of the weight to be attached to the various factors could not be challenged as an error of law. For this reason, in his oral submissions to the court, he suggested that his first submission should really be viewed as a supporting ground for his second submission, namely that the Commissioner failed to carry out an assessment of the particular circumstances of this case.

[15] We do not consider that there is any substance to the submission that the Commissioner erred in law in the weight which he attached to the facts and circumstances before him. He set out the background to this matter fully at paragraphs 1 to 16 of his decision, and the investigations carried out by Strathclyde Police at paragraphs 17 to 20. He analysed the information under consideration and the relevant provisions of the Act, he set out the submissions for Strathclyde Police and for the appellant as to where the public interest lay, and he gave a careful explanation of his conclusion, and the reasons for that conclusion, at paragraphs 44 to 53. There is no suggestion that his reasons are perverse or irrational. All that this ground of appeal amounts to is that the appellant does not agree with the weight which the Commissioner has attached to the various factors before him. Such disagreement as to weight, in the absence of perversity or irrationality, does not amount to an error of law. It does not constitute "an appeal on a point of law" for the purpose of section 56 of the Act.

[16] The second submission for the appellant is also, we consider, without merit. Section 34 of the Act clearly provides that information is exempt information if it falls into the categories listed therein. There is no dispute that in the present case the information which the appellant has sought falls within the categories of information contained within section 34(1). The general entitlement of an applicant to be given information under section 1 of the Act applies only to the extent that, in all the circumstances of the case, the public interest in disclosing the information is not outweighed by that in maintaining the exemption.

[17] In the present case, Strathclyde Police relied on several factors in support of their view that the public interest in disclosing the information was outweighed by that in maintaining the exemption. They maintained that disclosure of the information would show how, and why, they focus their inquiries, effectively showing what material is criminally relevant and thus what criminals should seek to hide or prevent from being recorded. Information relating to evidence provided by witnesses is properly the provenance of the Crown and the courts, and there was a risk that witnesses would lose confidence in the police, their investigating processes or the courts if such information was the subject of subsequent public discussion. Whilst it might be in the applicant's interest to attempt to gather other information in respect of the investigation, it cannot be said to be in the public interest that confidential and sensitive information is so disclosed. They maintained that there is a general and strong public interest in ensuring that the flow of information and evidence to and from the police in relation to criminal investigations is not deterred or inhibited - if it were, the police would not be in a position to fully investigate whether, and by whom, a crime had been committed. The withheld information related to CCTV footage seized and lines of inquiry undertaken as part of a criminal investigation, and information provided to Strathclyde Police by third parties. Disclosure of such information may discourage or prevent the public from contacting the police in the future for fear that their information would be publicly disclosed.

[18] It does not appear that the appellant provided the Commissioner with any specific facts or circumstances peculiar to this case which might persuade him that the public interest in disclosing the information was not outweighed by that in maintaining the exemption. The Commissioner recorded his submission at paragraph 43 of the decision, to the effect that the appellant:

"did not consider the requested information to be in any way sensitive or controversial. He maintained that there was a clear public interest in transparency and confidence in the criminal justice system in relation to the availability of the information concerned. He also noted that, as much information relating to the investigation was made public at the time, the same approach should be taken now and the withheld information should be made public."

[19] It is to be noted that the appellant placed before the Commissioner no specific reasons why, in the particular circumstances of this case, the public interest in disclosing the information outweighed the public interest in maintaining the exemption. His submission was couched in general terms. We find it impossible to support his criticism of the Commissioner for having taken account of general factors rather than specific factors, when the appellant placed no specific factors before the Commissioner. There does not appear to have been any material presented to the Commissioner which might distinguish this case from other cases in which a person is convicted of a crime and seeks information which is exempt by reason of sections 34 or 35 of the Act.

[20] We are not persuaded by Mr Leighton's submissions that the public interest in maintaining the exemption diminishes with the passage of time. The Scottish Parliament made specific provision in section 58 of the Act for the falling away of exemptions with time. The information referred to in section 35 ceases to be exempt after the end of that period of 100 years which commences at the beginning of the calendar year following that in which the record containing the information is created. As is clear from the explanatory notes, the exemption provided for by section 34(1) continues to apply in perpetuity.

[21] It appears to us that the Commissioner has given careful consideration to all of the circumstances of the case. Those circumstances, as we have said, were, in substance, general circumstances applicable to a class of information. It does not appear that the appellant relied on any particular or specific circumstances peculiar to this case to justify disclosing the information.

[22] We are not persuaded that the Commissioner fell into error of law in his decision. Accordingly, we refuse this appeal.