Scottish Court of Session Decisions

SECOND DIVISION, INNER HOUSE, COURT OF SESSION

[2015] CSIH 17

XA80/14

Lord Justice Clerk

Lady Dorrian

Lord Bracadale

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE CLERK

In the appeal by

WILLIAM FREDERICK IAN BEGGS

Appellant;

against

THE SCOTTISH INFORMATION COMMISSIONER

Respondent:

Act: Party

Alt: Johnston QC; Anderson Strathern LLP

3 March 2015

Statutory Provisions and Introduction
[1]        The Freedom of Information (Scotland) Act 2002 (FOISA) provides (s 1) that:

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

Information is defined (s 73) as meaning “information recorded in any form”.  The general entitlement to information does not apply (s 2) to “information which is exempt information by virtue of any provision of Part 2” where the provision confers an “absolute exemption”.  The absolute exemptions include (s 2(2)) information “which the applicant can reasonably obtain” other than by means of a FOI request (s 25(1)).  They also include information constituting personal data, as defined by the Data Protection Act 1998 (DPA), of which the applicant is the data subject (s 38(1)(a)).  In terms of the DPA (s 7), a data subject is entitled to have “communicated to him in an intelligible form … information constituting any personal data” by the data controller (s 7(1)(c)). 

[2]        Where, in relation to a FOI request, a public authority “claims that, by virtue of any provision of Part 2, the information is exempt information” (s 16(1)), it

“must, within the time allowed…for complying with the request, give the applicant a notice in writing (…”a refusal notice”) which –

(a) discloses that it holds the information;

(b) states that it so claims;

(c) specifies the exemption in question; and

(d) states (if not otherwise apparent) why the exemption applies.”

An authority does not require to comply with a request which is “identical or substantially similar” to any earlier request, with which it has complied (s 14(2)).

[3]        A person, who is dissatisfied with the way in which the authority has dealt with a FOI request, may require that authority to “review” its actions and decisions (s 20(1)).  In carrying out a review, the authority may confirm or modify its original decision or substitute a different decision (s 21(4)).  If the person is dissatisfied with the result of the review, he may apply to the respondent for “a decision whether, in any respect specified in that application, the request for information…has been dealt with in accordance with Part 1” of the Act (s 47(1)).  The authority must be notified of the application and invited to comment (s 49(3)(a)).

[4]        Where the respondent decides that the public authority has not dealt with a request for information in accordance with Part 1 of the Act, the decision notice must specify (s 49(6)):

“(a) the provision of that Part with which the authority has failed to comply and the respect in which it has so failed;

(b) the steps which, in the opinion of the Commissioner, the authority must take to comply with the provision; and

(c) the time within which those steps must be taken.”

An appeal from the respondent lies to this court “on a point of law” (s 56). 

[5]        The appellant appeals against a decision of the respondent dated 2 May 2014 concerning requests for information made by him to the Scottish Prison Service (SPS) under the FOISA.  Rather unusually, the appellant has already obtained all of the requested information, by virtue of a subject access request (SAR) under the DPA.  The SAR was made prior to the respondent’s decision, but after the SPS’s responses to the requests for information and review.  The decision was partly in the appellant’s favour, in respect that the respondent found that the SPS had failed to respond timeously to one of the appellant’s requests (infra) and had erred in maintaining that they did not need to respond to it because they had already responded to an identical earlier request (FOISA, s 14(2)).  The SPS were not required to take any steps in respect of the identified failures (s 49(6)(b)) because the appellant had already obtained the requested information.  The respondent found against the appellant, however, in determining that the SPS had been entitled to withhold the information requested because it could reasonably be obtained by other means (ie it was exempt under s 25(1)).  The appellant appeals on the basis of alleged “fundamental errors of law” in the respondent’s decision.  The issue in the appeal is whether such errors have been shown to exist.

Facts
The first request under the FOISA
[6]        On 4 July 2013, the appellant requested a copy of the “handwritten and transcribed notes” of an Internal Complaints Committee (ICC) meeting held on that day at HM Prison, Edinburgh.  The merits of the complaint, which related to the prompt delivery of the appellant’s mail, are not of direct relevance.  The appellant was present at the meeting and must be taken to be aware of what happened at it. 

[7]        On 8 July 2013, the SPS advised the appellant that “this” would be included as part of the “response” to his complaint.  The response, which was sent on the next day, bore to be a typewritten account of the meeting, at which the appellant’s complaints had essentially been upheld.  Specifically in relation to the requested notes, however, the response explained that:

“There is no necessary requirement for [the notetaker’s] personal notes or any other person’s personal notes to be sent to you.  These notes are used to complete the attachment to the [complaint form] which details the events of the hearing which is sent to you.  These notes are disposed of after the hearing.”

[8]        On 18 July 2013, the appellant requested that the SPS review their decision to decline to comply with his request.  On 21 August 2013, in the absence of a reply, the appellant applied to the respondent for a decision in respect of the handling of his request (s 47(1)).  Eventually, on 2 October 2013, the SPS replied, stating that the SPS accepted that their original response not only failed to comply with the statutory requirements but also contained factual errors; including the indication that the notes had been destroyed.  The SPS claimed, however, that the notes were a record of the appellant’s complaint to the ICC and therefore constituted personal information, which was exempt from disclosure (s 38(1)).  The appellant was advised that he could obtain the information by making a SAR under section 7 of the DPA.  This is what he ultimately did (see infra).

[9]        On 13 January 2014, the appellant made a further application to the respondent about the SPS’s eventual response, on the basis that the SPS had improperly relied on the stated personal data exemption (ie s 38(1)) in order to withhold the requested information (ie the notes).  The appellant contended that the notes would contain much information that was not personal to the appellant, such as references to the SPS’s policies and procedures.  On 4 March 2014, the appellant accepted that he had received the notes relating to the meeting of 4 July 2013, which is what he had originally requested.

The second request under the FOISA
[10]      Meantime, on 19 September 2013, the appellant had requested “all and any information contained within the notetaker’s notes” of another ICC meeting held on that day at HM Prison, Edinburgh.  The subject matter of the meeting is, again, not relevant to the appeal.  On 24 October, the appellant requested a review by the SPS in light of their failure to respond.  On 8 November, the SPS admitted that they had failed to respond timeously to the request, but they declined to comply with the request on the basis that it was “identical” to an earlier request dated 25 July 2013 (not the subject of this appeal), with which they had already complied (s 14(2)).  In relation to the request of 25 July, as in relation to the first request (supra), the SPS had claimed that the information was covered by the DPA and required a SAR.   On 4 December 2013, the appellant applied to the respondent for a decision on the basis (in part) that the SPS had misapplied section 14(2).  The appellant maintained that the meeting of 19 September had dealt with different matters from that referred to in the request of 25 July.

[11]      On 7 January 2014, an investigating officer of the respondent wrote to the SPS seeking comments on the appellant’s application, including whether the SPS wished to continue to rely on section 14(2), which appeared to her not to apply in light of the different nature of the earlier request.  The SPS conceded that they no longer sought to rely on this exemption.  On 12 February, the investigating officer advised the appellant that the SPS sought to rely instead on section 38(1), for the same reason as they had done with the first request.

[12]      On 18 February 2014, the investigating officer provided the appellant with a summary of the SPS’s submissions, including their reliance on section 38(1) and their contention that the notes contained personal data in terms of the DPA.  It stated specifically that the SPS were relying on the fact that the appellant had been provided with the information under the SAR.  On 6 March, the appellant made his own submissions to the respondent.  He accepted that he had already obtained the information via the SAR, which he said had been “submitted explicitly without prejudice to [his] right to obtain any ‘information’ contained therein pursuant to” the FOISA.  The appellant maintained that the disclosure of the notes pursuant to the DPA “at a cost and months after the written request being pursued via [the FOISA], has no bearing on the obligation on the [SPS]…to provide the information, not being exempted, pursuant to [the FOISA]”.  He accepted, however, that it was “no longer necessary to ask the [respondent] to require the [SPS] to provide the information”.

The Subject Access Request (SAR)
[13]      On 9 December 2013, the appellant had formulated a SAR, under the DPA, requesting “the contents of the notes taken by the SPS employed notetaker at ICC meetings…from 1 June 2013 onwards”.  The appellant enclosed a SAR form and the requisite fee.  On 10 January 2014, the SPS provided the appellant with copies of the ICC notes and other documents, all in terms of the request. 

The Respondent’s Decision
[14]      In an e‒mail to the SPS dated 27 March 2014, the respondent commented upon the fact that the information had already been provided.  She added that, in “the circumstances” she would “like to explore the possibility of considering section 25(1) …”.  She asked the SPS to call her “to discuss”.  In the subsequent telephone call of 31 March, the SPS advised that they would consider this.  By e‒mail (undated), and in a telephone call of 9 April 2014, the SPS confirmed that they wished to substitute their reliance on section 38(1)(a) with one based on section 25(1).  The respondent took the view that: “… as the applicant could make no further submissions which could make a material difference to the outcome of the case (the applicant has confirmed receipt of all of the information requested as a result of his [SAR])” the investigation was “to move to drafting the decision notice”.  There is no indication that the SPS’s abandonment of the section 38 exemption in favour of one under section 25 was communicated to the appellant.

[15]      On 2 May 2014, the respondent issued a decision in respect of both of the appellant’s requests under the FOISA.  This reasoned, inter alia, that:

“10.      In its submissions to the [respondent], the SPS withdrew its reliance on section 14(2) of FOISA, explaining that it had been applied in error.  It submitted that all of the requested information was exempt under section 38(1)(a) of FOISA, but later changed its position, applying section 25(1) of FOISA on the basis that the information was otherwise accessible to [the appellant]…

16.       … Section 38(1)(a) of FOISA does not deny individuals a right to access to information about themselves, but ensures that the right is exercised under the DPA and not under FOISA (i.e. under a regime providing for access by the individual concerned rather than the world at large).

17.       … [The appellant] has confirmed receipt of the information sought in both requests, as a result of a subject access request.

18.       In all the circumstances, therefore, the [respondent] is satisfied that the information requested by [the appellant] could reasonably be obtained by him other than by requesting it under section 1(1) of FOISA.  In light of this, it is unnecessary for her to consider the application of section 38(1)(a) to this information.  She accepts that the SPS was entitled to withhold it under section 25(1) of FOISA.”

Submissions
The appellant
[16]      During the hearing, the appellant focussed his arguments under three chapter headings.  The first issue was whether or not it had been open to the respondent to find that the information was reasonably obtainable in terms of section 25(1).  The respondent had been obliged to consider the basis upon which the SPS had claimed that the information had been reasonably obtainable otherwise than under the FOISA.  The information in the ICC notes reflected local SPS policies and procedures, which were unlikely to constitute personal data (Durant v Financial Services Authority [2004] FSR 573, Auld LJ at paras 28 – 30; Common Services Agency v Scottish Information Commissioner [2008] 1 WLR 1550, Lord Rodger at para 56; T v Scottish Prison Service, Decision 233/2014, 5 November 2014, SIC).  The respondent’s decision had been “irrational” to the extent that she had purported to determine that the information was exempt, pursuant to section 25(1), without considering whether or not it fell to be regarded, in its entirety, as the personal data of the appellant.  Had the respondent concluded that any of the information had not been personal data, it would not have been reasonable to expect the appellant to make a SAR in order to obtain it.  The respondent had failed to investigate the reasonableness of the steps that the appellant had required to take in order to obtain the information.  It would not have been reasonable to make a speculative request, which might have been refused on the basis that the information had not constituted personal data.  It had been irrational to determine that the information was reasonably obtainable solely on the basis that it had been obtained by means of a SAR. 

[17]      The second, and related, issue was whether or not the respondent had been obliged, as a matter of procedural fairness, to offer the appellant an opportunity to comment on the potential section 25 exemption.  The respondent had been under a duty to act fairly; a fundamental aspect of which was to hear all parties to a dispute (Board of Education v Rice [1911] AC 179, Lord Loreburn LC at 182).  This duty was synonymous with the requirement to act in accordance with natural justice (Errington v Wilson 1995 SLT 1193; Errington v Minister of Health [1935] 1 KB 249).  The procedural fairness of tribunal decisions was important, irrespective of the merits of those decisions (Barrs v British Wool Marketing Board 1957 SC 72, LP (Clyde) at 82).  The respondent had acted in a manner that was “not procedurally fair”.  She had considered only the submissions of the SPS in relation to the exemption under section 25(1).  The appellant had not been advised that the SPS no longer relied on the exemption set out in section 38(1)(a), or that they had adopted the exemption set out in section 25(1).  He had not been invited to comment on the implications of the latter, and whether or not he considered that he had been able “reasonably” to obtain the information other than by virtue of a FOISA request.  It had not been open to the respondent to draw the inference that she did in relation to the applicability of section 25(1), in the absence of any enquiry of the appellant.  The principle of audi alteram partem was recognised in the FOISA (s 49(3)(a)).  Where the respondent had invited the SPS to comment on the application of section 25(1), having raised the issue ex proprio motu, she had been obliged as a matter of fairness and natural justice to allow the same opportunity to the appellant (Glasgow City Council v Scottish Information Commissioner 2010 SC 125).  In any event, the respondent had been bound to apply herself to the question of whether or not the appellant could otherwise “reasonably obtain” the information.  There was a subjective element to this; in the sense that exempt information had to be reasonably accessible to the particular applicant.  The applicability of the exemption under s 25(1) could not be determined without hearing both parties thereon (Begum v Tower Hamlets LBC [2000] 1 WLR 306).  It did not matter that the respondent may inevitably have reached the same decision.

[18]      The final issue was the appropriate disposal of the appeal.  It was submitted that the respondent’s decision should be quashed, for the reasons set out above in connection with her reliance on section 25(1).  Thereafter, the court was entitled to substitute its own decision as to whether the information amounted to personal data, and to issue guidance on the relative application of sections 38(1)(a) and 25(1).

[19]      The appellant conceded that the purpose of his request for information, at least in part, was to obtain a record of information which was already known to him.  Rather than seeking a record of events, his purpose was to seek a record of the recording of those events.  Whilst the appellant was aware of what had happened at the relevant ICC meetings, because he had been present at them, he was not aware of what had been recorded as having happened at those meetings.  For the purposes of the FOISA, the “information” was the content of the notes of what had happened at the meetings, as distinct from a record of what had actually occurred.  Notwithstanding the accuracy or otherwise of the notes, there was a public interest in the availability of the information actually held.

The respondent
[20]      In a remarkably short written Note of Argument, the respondent maintained that she had been entitled to infer that the information was reasonably obtainable by the appellant, in terms of section 25(1), where he had sought and obtained it by means of a SAR.  Whether the information was reasonably obtainable was an objective question.  The respondent did not require submissions from any party in order to draw that inference.  It was accepted that the applicability of section 25(1) had been raised by the respondent, but this had been as a result of the appellant confirming receipt of the information.  The respondent had been entitled to take that information into account, and to consider ex proprio motu whether the information was properly described as reasonably obtainable.  At the time of the appellant’s request, the information had been reasonably obtainable as he had been able to pursue a SAR.

[21]      The general exemption under section 25(1) was a stand-alone provision, where the particular presumption in respect of information made available under publication schemes (s 25(3)) did not apply.  The respondent was obliged to scrutinise and give effect to any absolute exemption that appeared to apply.  It was not appropriate for the respondent to make orders with no practical effect, such as where the appellant had obtained the information already.  It was appropriate to apply section 25(1) where the respondent considered that the case should go no further.

[22]      The respondent had complied with the requirements of procedural fairness.  She had not carried out any supplementary investigations without giving notice to the parties concerned, nor had she sought submissions on the applicability of section 25(1) from one party and not the other.  The SPS had chosen to invoke the provision, but had made no submissions in support of it.  In any event, the appellant had anticipated the issue by acknowledging that no further steps were required of the SPS, in order to obtain the information.  The appellant’s submissions reflected his view that the information had not been reasonably obtainable under the DPA.  There had been no error of law in the respondent’s conclusion (Glasgow City Council v Scottish Information Commissioner (supra), Lord Reed at paras [81] – [82]; R v Secretary of State for the Home Department, ex p Doody [1994] 1 AC 531 at 560). 

[23]      The respondent had had no reason to determine whether the information was personal data within the meaning of section 38(1)(a).  The respondent was not obliged to determine the applicability of exemptions on which a public authority did not seek to rely.  The appellant had received the information.  Whether the information had been provided under the FOISA or the DPA, and whether the appellant had been entitled to the information in fact obtained by virtue of the latter, was irrelevant.  The respondent had been entitled to categorise the information as reasonably obtainable in terms of section 25(1).  She had been entitled to consider whether any of the exemptions were relevant in terms of Part 1 of the FOISA.  It was frequently the case that a public authority’s reliance on a particular exemption developed over time.  The respondent should not be unduly circumscribed by the terms of the notices of refusal or review, which may not have flagged up the particular exemption at the time. 

[24]      Ultimately, it was conceded that the respondent had taken the view that the information had consisted entirely of personal data.  Matters could have been clearer, had she said so expressly.  If the respondent had taken the contrary view, that section 38 did not apply, she would have had to say so.  Conversely, where the information had been provided under the DPA, and the SPS had withdrawn its reliance on that exemption, there had been no need for her to do so.  Whether or not the information constituted personal data was significant only where it formed the basis for withholding the information. 

[25]      Although the respondent was responsible for providing guidance on how the exemptions should be applied, it was not necessary to devote resources to a consideration of issues serving no practical purpose.  It was sufficient for the respondent to determine that no further action was required of the SPS in the present case.  As the appellant did not seek to obtain any practical remedy, the appeal should be refused.

Decision
[26]      The general purpose of the FOISA is to create openness in Government.  It is designed to permit members of the public to access information which ought to be, at least on request, in the public domain.  It is not a method of accessing private data, which is regulated differently under the DPA. 

[27]      If the principal purpose of the FOISA is to permit members of the public to obtain information which ought to be public, it might be thought that the Act should be invoked only to obtain information which the applicant does not know.  It would be a strange piece of legislation that created an elaborate method whereby a person could find out facts of which he was already aware.  Yet there is no exemption to this effect in the FOISA, perhaps because it would introduce an unnecessary hurdle of proving lack of knowledge.  It has however, been clarified that, despite the definition of information in section 73 as “information recorded”, the right to obtain information is not a right to obtain a copy of a recording, but to be provided with the substance of the information (Glasgow City Council v Scottish Information Commissioner 2010 SC 125, Lord Reed at para [43]).  It is the incorporeal, if recorded by the authority, that must be provided, perhaps in a corporeal form (FOISA, s 11).  In that respect, there is a similarity with what is recoverable under the DPA (Durant v Financial Services Authority [2004] FSR 573, Auld LJ at para 26).

[28]      The curiosity is then that, whereas the FOISA exempts information where the applicant can reasonably obtain it by other methods (s 25(1)), it does not exclude information which he already knows.  In this case, for example, the appellant’s requests related to meetings which he had attended.  He knew what had happened.  It is difficult to understand what relevance the FOISA had to his desire to obtain the notes of the meeting prepared by others, since these documents are precisely what he was not entitled to obtain under the FOISA in terms of the dictum (supra) in Glasgow City Council.

[29]      It may be said that there is little purpose to a FOISA appeal where an appellant has already obtained the requested information.  The appellant is, however, entitled to “a decision whether ... the request for information … has been dealt with in accordance with” the FOISA (s 47(1)).  The issue to be decided by the respondent was therefore not just whether the information had, or ought to have, been provided, but whether the appellant’s requests for information had been dealt with by the SPS in accordance with the FOISA. 

[30]      There were undoubted failures by the SPS to comply with the FOISA.  On the second request, the respondent found that the SPS had misapplied the statutory exemption relating to compliance with repeated requests (s 14(2)).  The only other decision taken by the respondent on this request was that the SPS had been entitled to withhold the information under section 25(1). 

[31]      The respondent had concluded that it was not necessary for her to consider whether the section 38(1) exemption had been properly applied because the SPS had withdrawn any reliance upon it.  At the time of the appellant’s request for information, and on review, the SPS had maintained that the information constituted personal data.  The SPS accepted that they were bound to disclose it to the appellant under a SAR (DPA, s 7; FOISA, s 38(5)).  As a consequence of the position adopted by the SPS, the respondent held that the information had, as a matter of fact, been reasonably obtainable by the appellant and thus, as a matter of law, exempt (s 25(1)).

[32]      The respondent’s duty to make decisions in respect of a particular application is an aspect of her general function to promote “the observance by Scottish public authorities of the provisions of [the FOISA]… [and] the following of good practice by those authorities” (s 43).  “Good practice” includes compliance with the requirements of the Act (s 43(8)).  The respondent exercises her decision-making jurisdiction within the context of a broader supervisory and advisory role.  From a practical standpoint, it could be said that the only live issue is whether the SPS was entitled to withhold the information on the basis that it was absolutely exempt (s 2), whatever the nature of the particular exemption (s 2(2)(a) – (e)).  The respondent had to determine the nature of the information herself.  It could be regarded as of limited moment whether or not the SPS had identified the correct exemption.  However, this approach is not consistent with the statutory scheme.  In responding to requests for information, the SPS is expressly required (s 16(1)) to specify the exemption claimed and the reason why it applies.  It was therefore incumbent upon the respondent to determine whether the SPS had properly done so. 

[33]      The respondent’s decision notice acknowledges the SPS’s concession that, in respect of the second request, the exemption under s 14(2) had been relied upon in error.  It is demonstrably clear that the SPS failed to comply with Part 1 of the Act, at least to that extent.  Thereafter, the respondent considered it “unnecessary…to consider the application of section 38(1)(a)” to the information.  Notwithstanding the terms of the decision notice to that effect, the court was told that the respondent had in fact considered that the information pertaining to both of the appellant’s requests consisted entirely of personal data.  If that were so, an express finding by the respondent on the applicability of section 38(1)(a), at the material time, ought to have been made in order to dispose of the question of whether the SPS had properly complied with Part 1 of the Act.  However, it is not appropriate to apply a fine‒tooth comb to every decision of the respondent in the same way as an appellate court might analyse the reasoning in a first instance decision in relation to liberty of the person or an issue of general public importance.  Regard must be had to the subject matter of the appellant’s application; relating as it did to information which had already been provided.  The reasons given by the respondent were intelligible and addressed the fundamental points advanced.  The court is not inclined to apply any deeper form of “hypercritical textual analysis” (Wordie Property Co v Secretary of State for Scotland 1984 SLT 345, Lord Cameron at 356) to the substance of the determination, which was that section 25(1) provided an exemption to the provision of the information sought.  Obliging the respondent to travel down every academic avenue suggested by an applicant, rather than reaching practical decisions based on the principles enshrined in the Act, would not promote transparency of Government.

[34]      There is undoubtedly an obligation on the respondent to act fairly when processing an application (South Lanarkshire Council v Scottish Information Commissioner 2014 SC (UKSC) 1, Lady Hale at para [29]).  The need to do so exists irrespective of whether, as a matter of fact, a fair result was reached (Barr v British Wool Marketing Board 1957 SC 72, LP (Clyde) at 82).  It might have been desirable for the respondent to have communicated her desire to consider section 25 not only to the SPS, but also to the appellant.  It is not clear why that was not done, although the communication with the SPS may have been perceived as related to the express statutory duty (s 49(3)(a)) to invite their comments.  However, the fact that she did not invite further comments from the appellant does not necessarily invalidate her decision.  That depends upon context (Glasgow City Council (supra) Lord Reed at paras [81] and [82] citing R v Secretary of State for the Home Department ex p Doody [1994] 1 AC 531, Lord Mustill at 560).  The context here was that the appellant had had sufficient notice of the substance of the SPS’s response to his applications.  This included not only the argument in respect of the personal data exemption, but also the fact that he had actually received the information as a result of his SAR.  He had thus been afforded the opportunity to make his own comments on both these matters. 

[35]      Following consideration of the legality of the SPS’s conduct under Part 1 of the Act, the issue for the respondent thereafter was whether the information was, in fact, exempt or not.  She was not bound by the submissions of the parties and was entitled to apply the provisions of the FOISA to the facts as she deemed fit (South Lanarkshire Council (supra), Lady Hale at para [32]).  In light of the appellant’s acceptance that he had received the requested information via the SAR, the legal characterisation of the SPS’s entitlement to refuse to comply with the requests for information as being exempt either in terms of section 38(1)(a) or section 25(1) was immaterial (see Barrs (supra), Lord Sorn at 87‒88).  The respondent, who had applied her mind to the question, determined that it was not necessary, as a matter of procedural fairness, to revert to the appellant on this particular point.  The court is unable to find fault in that view.  No breach of natural justice or the principles of fairness occurred.

[36]      The substance of the respondent’s decision in respect of section 25(1) cannot be criticised on the grounds that it depended on the application of section 38(1).  It did not, and need not have done so.  The respondent was entitled to conclude that, as a matter of fact, the information was reasonably obtainable within the meaning of section 25 on the basis that the appellant chose to make a SAR and, rightly or wrongly (see infra), the information was thereby obtained.  In those circumstances, the respondent’s view that it was unnecessary to determine whether the information constituted personal data, in order to determine that it was reasonably obtainable, is readily understandable.  The SPS had, in effect, bound themselves to provide the information under the DPA as a consequence of its view that the information constituted personal data.  The respondent was entitled to rely on the appellant’s own decision to make a SAR, and the fact that he had obtained the information thereby, in order to conclude that the information was reasonably obtainable.

[37]      Leaving aside any consideration of whether it can ever be categorised as unreasonable for an applicant to obtain information which he already has stored in his memory, and perhaps in his own notes, it was reasonable for the respondent to infer, as a matter of fact, that the appellant could reasonably obtain the information (s 25(1)) by virtue of the fact that the SPS had accepted, at the time of their decision on the first request (see Scottish Ministers v Scottish Information Commissioner 2007 SC 330, LP (Hamilton) at para [31]), that they were statutorily bound by the DPA to provide it.  It was reasonable for the respondent to accept the SPS’s assertion with regard to the nature of the information, in light of the fact that the SPS had, in fact, offered to provide the information to the appellant on that basis.  The respondent did not require to consider the likelihood of the information being obtained in that way.  The matter being objective, the view of the appellant on that issue would be of limited relevance and whether the SPS’s interpretation of the DPA was correct would equally have little significance.  There was no requirement for the respondent to look much beyond the fact that the appellant had obtained the information from the SPS under the SAR (see Glasgow City Council v Scottish Information Commissioner 2010 SC 125, Lord Reed at para [65]).  The required inference could be, even if it need not have been, drawn from that fact, when taken along with the other circumstances. 

[38]      The appeal must be refused.