Scottish Court of Session Decisions

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2015] CSIH 47

XA117/14

Lord Eassie

Lord Brodie

Lady Clark of Calton

OPINION OF THE COURT

delivered by LADY CLARK OF CALTON

in the appeal

by

CHARLES WELSH

Appellant;

against

THE SCOTTISH INFORMATION COMMISSIONER

Respondent:

Act:  Party

Alt:  Ross; Anderson Strathern LLP

10 June 2015

Summary

[1]        This is an appeal by Charles Welsh under section 56 of the Freedom of Information (Scotland) Act 2002 (the 2002 Act) in respect of a decision notice dated 7 July 2014 by the Scottish Information Commissioner (the Commissioner). 

[2]        The decision by the Commissioner followed upon an application process invoked by the appellant under the 2002 Act.  On 15 May 2013 the appellant wrote to a Scottish public authority, namely Dumfries and Galloway Council (the council) requesting specified information relating to the process of revision of the council’s disciplinary policy.  The council provided a partial response explaining that a full response would be delayed by reason of the absence of a member of staff.  The appellant was dissatisfied and wrote to the council requesting a review.  The council responded on 17 July 2013 but the response was not received by the appellant until 14 August 2013 when a further copy was sent out.  In the response the council stated that it had identified further information which it was withholding in terms of section 30(b)(ii) and (c) of the 2002 Act.  On 14 February 2014 the appellant applied to the Commissioner for a decision and explained in detail why he was dissatisfied with the outcome of the council’s review.  The appellant sought:

“All documents including emails, memos, notes, minutes relating to the process of the revision of the Council’s Disciplinary Policy, whereby to establish the timeline for the initiation, consultation and conclusion of the process of adopting the revised Disciplinary Policy in April, 2011, including information relating to the reasons for initiating the revision of the Disciplinary Policy and for the particular amendments contained in the revised version”.

The appellant further explained his reasons for his application as follows:

“I should wish the requested information to be made available because it is of general public interest and it has a bearing on the circumstances in which I consider my continued employment with the Council became untenable and on the circumstances of an outstanding expenses claim against me by the Council”.

The application was treated by the Commissioner as an application under section 47(1) of the 2002 Act and dealt with on that basis.  Following notification by the Commissioner to the council, on 7 March 2014, the council provided the appellant and the Commissioner with the information previously withheld from the appellant.  The appellant remained dissatisfied and did not accept that all the information within the scope of his request had been supplied.  The Commissioner investigated this dispute and allocated an officer to investigate.  The details of the investigation and analysis are set out in the decision notice.  The Commissioner made the decision:

“The Commissioner finds that, in respect of the matters covered by Mr Welsh’s application, Dumfries and Galloway Council complied with Part 1 of the Freedom of Information (Scotland) Act 2002 in responding to the information request made by Mr Welsh.”

Thereafter the appellant exercised his right of appeal to the Court of Session under section 56 of the 2002 Act. 

The statutory framework

[3]        In order to understand the nature of this appeal in context, it is necessary to describe the statutory framework. 

[4]        The 2002 Act set up a new statutory regime and gives a general entitlement in section 1(1) that a person who requests information from a Scottish public authority which holds the information, is entitled to be given the information.  That general entitlement is limited in specific ways set out in the 2002 Act.  The Commissioner is given various functions by the 2002 Act including specified decision making and enforcement functions.  The 2002 Act, in sections 8 to 19, sets out a scheme by which a person may request information from a Scottish public authority and regulates how such a request must be dealt with.  In section 20 there is provision that an applicant who is dissatisfied with the way in which a Scottish public authority has dealt with the request for information may require the authority to review its actions and decisions and give notice of its decision to the applicant.  If the applicant is dissatisfied, there is provision in section 47 for an application to be made to the Commissioner.  Section 47 states:

“47    Application for decision by Commissioner

(1)   A person who is dissatisfied with¾

            (a)  a notice given under section 21(5) or (9); or

            (b)  the failure of a Scottish public authority to which a requirement for review was made to give such a notice,

may make application to the Commissioner for a decision whether, in any respect specified in that application, the request for information to which the requirement relates has been dealt with in accordance with Part 1 of this Act. 

(2)   An application under subsection (1) must¾

            (a)  be in writing or in another form which, by reason of its having some permanency, is capable of being used for subsequent reference (as, for example, a recording made on audio or video tape);

            (b)  state the name of the applicant and an address for correspondence; and

            (c)  specify¾

                        (i)  the request for information to which the requirement for review relates;

                        (ii)  the matter which was specified under sub-paragraph (ii) of section 20(3)(c); and

                        (iii)  the matter which gives rise to the dissatisfaction mentioned in subsection (1).”

Section 49 sets out the procedure to be used by the Commissioner.  This includes giving the Scottish public authority notice in writing of the application and inviting comments.  In the event of no settlement having been effected, the Commissioner must reach a decision on the application within certain time limits.  The Commissioner in this case, as we have explained, reached a decision and duly gave notice in terms of section 49(5). 

[5]        It should be noted that the 2002 Act sets out a detailed and specific procedure for dealing with an application requesting information.  The final stage of involvement of the Commissioner in relation to a request from an individual applicant is the decision of the Commissioner in terms of section 49. 

[6]        A restricted right of appeal to the Court of Session is given from the decision of the Commissioner but only certain decisions of the Commissioner are appealable.  Section 56 of the 2002 Act states:

“56       Appeal against notices under Part 4

An appeal, on a point of law, to the Court of Session may be made¾

            (a)  against a decision by the Commissioner under subsection (2) of section 49, by the person who applied for that decision;

            (b)  against a decision by the Commissioner under subsection (3)(b) of that section¾

                        (i)   by that person; or

                        (ii)  by the Scottish public authority in respect of which the decision was made; or

(c)  against the decision which resulted in the giving of¾

(i)  an information notice; or

(ii)  an enforcement notice,

to a Scottish public authority, by that authority.”

[7]        It is also important to note that the Commissioner has many functions under the Act which are not appealable.  For example, the Commissioner’s functions under sections 43 and 44, which include promotion of good practice and the making of practice recommendations, and the approval of publication schemes of public authorities in terms of section 23 are not appealable under section 56.  In addition the 2002 Act gives specific power in section 63 for the Commissioner to disclose certain matters to the Scottish Public Services Ombudsman or to the Information Commissioner.  Section 65 creates a criminal offence of altering, destroying or concealing etc records with intent to prevent disclosure but the investigation and prosecution of this criminal offence is not a function of the Commissioner.

[8]        In considering the appeal in this case within that statutory framework, we note that the appeal is against a decision by the Commissioner under section 49 subsection (3)(b).  Such an appeal is limited to appeal on a point of law only.  The decision of the Commissioner which is appealable arises out of an application by the appellant in terms of section 47.  In terms of section 47 the Commissioner requires to consider and decide whether, in any respect specified in that application, the request for information to which the requirement relates has been dealt with in accordance with Part 1 of the 2002 Act.  This is a limited and specific function.  In some cases such consideration may raise legal questions about the application or otherwise of certain exemptions stated in the 2002 Act but this is not an issue in the appellant’s case.  In this case following a factual investigation, the Commissioner decided that all relevant information held by the council on receipt of the appellant’s request had been identified, located and disclosed to him.  The appellant is dissatisfied with the results of that factual investigation and the decision of the Commissioner.

The grounds of appeal
[9]        There are three grounds of appeal stated by the appellant. 

“1. The Commissioner did not take full account of the evidence before her or of evidence available to her and thereby failed to ensure so far as possible in the avoidance of doubt in coming to her decision, that the representatives of the Council involved in responding to her requests were not facing a conflict of interests of a nature and proportion such as to make their position untenable and to render them ineffective for her purposes, such conflict being between their duty to the Commissioner and concern for their own position within the Council arising from pressure bearing on them whether perceived or exerted directly or indirectly by the Council’s management, to protect the interests of those members of management whose alleged improper conduct stood to be exposed by the information searches required by the Commissioner;

2.   The Commissioner did not take full account of the evidence before her of the Council’s lack of policy or procedures for creating, storing, retrieving and disposing of records, such policy and procedures being required by the Code of Practice on Records Management by Scottish Public Authorities as published by Scottish Ministers’ under s61 of FOISA (the s61 Code) which inter alia serves to prevent the unaccountable destruction of records by individual officers;

3.   The Commissioner accordingly failed in pursuit of the overall objectives of FOISA in regard to the release of public information to ensure on the balance of probabilities that all the information in the possession of the Council and its officers and employees was identified and released.”

Submissions

[10]      The appellant set out detailed written submissions in his note of argument in support of the appeal which he adopted and expanded in oral submissions.  In developing his submissions, the appellant was open and direct in explaining the reasons which motivated his request for information from the council and his concerns about the way in which his request for information had been dealt with.  The appellant’s concerns date back to events in 2010 when he was an employee of the council.  During grievance and disciplinary proceedings involving him, there was a change to the disciplinary policy which he considered disadvantaged him.  He considered that some officers of the council had misled committee members about the effect of the changes and that there was some form of deception and wrongdoing in relation to the changes and to the way in which the appellant’s request for information was dealt with by the council.  The appellant did not seek to make specific allegations against any particular official.  He did seek however to alert the Commissioner to the potential conflict of interests which in his opinion existed in the particular circumstances of the case.  The appellant gave information in detail to the Commissioner and to this court about his concerns.  The appellant was actively seeking to alert the Commissioner to the problems which he considered the Commissioner might face in trying to obtain the relevant information in the circumstances of the case against a background in which the appellant considered that the council had frustrated his attempts to obtain the information earlier when it would have been of use to him in various proceedings related to the cessation of his employment.  The appellant recognised in his written submission at paragraph 2.06:

“…that consideration of such matters is likely to be alien to the Commissioner and her case officers and that whether wrongdoing did in fact take place would be something with which as has been stated she would not wish to concern herself.  Nevertheless as with evidence I had submitted, I did not seek to persuade anyone of this beyond all doubt, merely that there is doubt and that enquiries should be conducted accordingly”.

[11]      Against that background, the appellant criticised both the approach of the Commissioner to her investigation and the content of her decision which did not deal with some of the points specifically raised by the appellant.  The appellant submitted that the Commissioner failed in her duty of care in her investigation in not having full regard to evidence before her of wrongdoing;  and she thereby failed to ensure that her communications were with such agency within the council as could reliably be taken as having its corporate authority vested in it without any conflict of interest.  The appellant also criticised the Commissioner for failing to take account of the council’s lack of policy or procedures to prevent destruction of records. 

[12]      The appellant sought a number of remedies which appear to envisage this court giving directions about how the inquiries by the Commissioner should be carried out.

[13]      Counsel for the Commissioner invited the court to dismiss the appeal under reference to the answers and note of argument which she adopted.  In relation to the first ground of appeal, counsel drew attention to the Local Government (Scotland) Act 1973, sections 56 and 57 which permits local authority functions to be discharged by one of its officers.  The public authority with whom the Commissioner was concerned was the council and not any given individual or individuals within it.  The Commissioner has a role defined by statute and is not entitled to interfere with the internal functioning of the council or to insist upon a particular official or committee providing information.  The concerns and allegations made by the appellant about conflict of interest and lack of thoroughness in providing information were unspecific.  Plainly the Commissioner was aware of the appellant’s concerns but the Commissioner was entitled to take into account the results of investigation by her officer and information from the council, including the council’s letter of 14 April 2014 which was lengthy and gave details of the extensive searches carried out by the council.  Counsel submitted that the second ground of appeal was misconceived.  The Commissioner in considering the application from the appellant was not entitled to investigate general grievances but was required to consider the matter within the framework of the 2002 Act.  Counsel submitted that the third ground of appeal had no meaningful content as a ground of appeal.

Analysis
[14]      The three grounds of appeal must be taken as the foundation of this appeal.  We observe that although the appellant made submissions critical of the reasoning or lack of reasons given by the Commissioner about certain matters, there are no grounds to found such an appeal.  The first ground of appeal criticises the Commissioner for the way in which the evidence was assessed.  In our opinion, the Commissioner’s task in terms of section 47 is to decide whether, in any respect specified in the application, the request for information to which the requirement relates has been dealt with in accordance with Part 1 of the 2002 Act.  The task of the Commissioner in this case in which the dispute was whether or not the council had disclosed to the appellant requested information which it held involves a decision on the facts found by the Commissioner after investigation.  In our opinion, the Commissioner followed the statutory procedure, made an assessment of the facts found and reached a decision within the terms of the statutory remit of section 47.  The appellant disagrees with that assessment.  The appellant interprets the case in the wider context of his own grievances which plainly influence his views.  It is no part of the appellate court’s function to consider the information available and reach its own conclusion.  The Commissioner’s decision making functions are set out in the 2002 Act.  The Commissioner has no power or duty to determine whether officials were facing a conflict of interest of a nature and proportion such as to make their position untenable and to render them ineffective for her purposes.  We consider the submissions made by counsel for the Commissioner are well founded.  In our opinion the first ground of appeal raises no point of law and appears to proceed on a misunderstanding of the role of the Commissioner and of the appeal court.

[15]      A similar misconception appears to run through the second ground of appeal.  The Commissioner in her decision making about the particular request for information is carrying out a specific statutory function in terms of section 47.  Although the Commissioner also has functions in relation to wider policy matters of the type we set out in paragraph [7], these functions are separate from the decision making of the Commissioner in terms of sections 47 and 49. 

[16]      The third ground of appeal appears to be dependent upon the first and second grounds of appeal.  As we consider there is no merit in the first and second grounds of appeal and that no relevant point of law is identified, we consider the third ground of appeal is also without merit.  Even if the third ground of appeal is not intended to be so dependent, we consider that it is a criticism of the factual decision making of the Commissioner.  We are unable to identify any relevant point of law for decision. 

[17]      Further the directions which the appellant seeks from this court raise matters which go well beyond any appellate role which this court has in relation to the decision making functions of the Commissioner in terms of section 49.  The limited right of appeal to this court does not open up the type of review the appellant seems to envisage.  This court has no power in a section 56 appeal to give directions to the Commissioner or to direct the Commissioner to await the outcome of a section 65 investigation.  The present appeal is not an application to the common law supervisory jurisdiction of the Court of Session.  The appeal is limited to a point of law in relation to the decision making process of the Commissioner set out in the statutory scheme. 

Decision

[18]      For these reasons, we refuse the appeal and continue the appeal on the question of expenses.