Scottish Court of Session Decisions

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2016] CSIH 23

XA105/14

Lord Drummond Young

Lord Armstrong

Lord McGhie

OPINION OF THE COURT

delivered by LORD DRUMMOND YOUNG

in the appeal

under

section 56 of the Freedom of Information (Scotland) Act 2002

by

WILLIAM FREDERICK IAN BEGGS

Appellant;

against

a decision of the Scottish Information Commission dated 13 June 2014

Act:  Connelly;  Drummond Miller LLP

Alt:  (Scottish Information Commissioner) Lindsay, QC;  Anderson Strathern LLP

22 March 2016

[1]        The appellant is a prisoner in HM Prison, Edinburgh, serving a life sentence for murder.  On 19 October 2010 the appellant wrote to Strathclyde Police requesting certain information that he claimed he was entitled to under the Freedom of Information (Scotland) Act 2002.  He sought information relating to the way in which Strathclyde Police had dealt with complaints that he had made about three matters:

1. The alleged oppressive use by the police of what was said to be “intelligence” relied upon in seeking a warrant to search the appellant’s home.
2. The extent to which officers of Strathclyde Police had allegedly been involved in unofficial and official briefing which resulted in the dissemination by the media of material prejudicial to the appellant.
3. The alleged failure on the part of police officers to conduct appropriate inquiries into the circumstances surrounding the death of the murder victim.

Strathclyde Police responded to that request, but the appellant was dissatisfied with the way in which they did so and in December 2010 he requested the Police Investigations and Review Commissioner (“PIRC”) to review their response.  Following certain further correspondence, on 7 March 2013 the appellant wrote to the PIRC to request the whole of the information on file relating to that review; he indicated that the request was made under the Data Protection Act 1998 and the Freedom of Information (Scotland) Act 2002.  On 4 April 2013 the PIRC replied, disclosing certain information to the appellant.  That information consisted only of the appellant’s own personal data; other information was withheld under sections 29 and 31 of the Data Protection Act and section 38(1)(b) of the Freedom of Information (Scotland) Act.  On 29 May 2013 the appellant wrote again to the PIRC to request a review of the earlier decision, as he did not consider that the PIRC’s response had been justified according to the terms of the exemptions that were cited.  The PIRC conducted a review, and decided that the original decision should be upheld without modification; that was intimated to the appellant on 25 June 2013.

[2]        Thereafter, on 20 December 2013, the appellant wrote to the Scottish Information Commissioner (“the Commissioner”) to express dissatisfaction with the result of the PIRC’s review and to apply to her for a decision in terms of section 47(1) of the Freedom of Information (Scotland) Act 2002.  The Commissioner is the respondent in these proceedings.  The appellant claimed that the PIRC had failed to apply the relevant data protection principles contained in the Data Protection Act properly and had not properly applied the statutory exemption in section 30(b)(ii) of the Freedom of Information (Scotland) Act.  Thereafter, on 13 January 2014, the Commissioner wrote to the PIRC to intimate that the appellant’s application had been received and to request the PIRC to provide her with the information that had been withheld from the appellant.  The PIRC provided that information to the Commissioner, and the case was allocated to an investigating officer.  The investigating officer subsequently contacted the PIRC to obtain comments on the application, as required by section 49(3)(a) of the 2002 Act, and to ask him to respond to specific questions.  The PIRC was asked to justify his reliance on any provisions of the 2002 Act that were considered applicable to the information requested, and to clarify which provisions of that Act he was relying on.  On 10 February 2014 he provided submissions on his application of the exemptions in sections 30(b)(i) and 38(1)(b) of the 2002 Act.  During the investigation the investigating officer also sought and received submissions from the appellant.

[3]        After considering the submissions from both sides, the Commissioner rejected the application in terms of section 49(3)(b) of the Freedom of Information (Scotland) Act 2002.  Her decision, contained in a decision notice dated 13 June 2014, was as follows:

“The Commissioner finds that the Police Investigations and Review Commissioner (PIRC) complied with Part 1 of the Freedom of Information (Scotland) Act 2002 (FOISA) in responding to the information request made by Mr Beggs.

The Commissioner finds that PIRC was entitled to withhold information under the exemption in section 30(b)(i) of FOISA.  The Commissioner also finds that PIRC was entitled to withhold personal data under the exemption in section 38(1)(b)”.

[4]        The appellant has appealed against the Commissioner’s decision to the Court of Session under section 56 of the 2002 Act.  That section permits an appeal on a point of law to be made to the Court of Session against a decision by the Commissioner.  The appellant contends that the Commissioner’s decision is erroneous in law.  The Commissioner submits that no point of law has arisen; the arguments taken by the appellant merely amounted to a disagreement with the weight given by her to various factors.  In such a case there could be no error of law in the absence of perversity.

Statutory provisions

[5]        Section 1 of the Freedom of Information (Scotland) Act 2002 provides that a person who requests information from a Scottish public authority which holds it is entitled to be given it by the authority.  It is not in dispute that the PIRC is a Scottish public authority.  Nevertheless, certain information is exempt from this duty of disclosure.  The Commissioner refused the appellant’s application for a review on the basis of two such exemptions, those contained in sections 30 and 38 of the Freedom of Information (Scotland) Act 2002.  Section 30(1)(b)(i) provides that information is exempt information if its disclosure under the 2002 Act would, or would be likely to, inhibit substantially the free and frank provision of advice.  Section 38(1)(b) provides for a further exemption in the case of personal data if disclosure would contravene the data protection principles set out in the Data Protection Act 1998.  The foregoing provisions of the 2002 Act are drafted in convoluted terms, and it is unnecessary for present purposes to set them out in greater detail.  Section 2 of the Act describes the effect of the exemptions: except for those that are defined as absolute exemptions, the duty to disclose in section 1 applies only if the public interest in disclosing the information is not outweighed by that in maintaining the exemption (section 2(1)(b)).  Absolute exemptions, by contrast, are not subject to any such balancing test.  The exemption in section 30(b)(i) is subject to this balancing requirement, so that the public interest in disclosure is set against the interest, which is also of a public nature, in the free and frank provision of advice.  In the circumstances of the present case, the exemption in section 38(1)(b) is an absolute exemption.

[6]        The expression “personal data”, which is used in section 38(1)(b), is defined in section 1(1) of the 1998 Act: it means data which relate to a living individual who can be identified from those data or from those data and other information which is in the possession of, or is likely to come into the possession of, the data controller.  Section 38(1)(b) and (2) exempts information that, in a case such as the present, contravenes any of the data protection principles.  The relevant data protection principle is the first, which is found in Part 1 of Schedule 1 to the Data Protection Act: personal data shall be processed fairly and lawfully, and shall not be processed unless at least one of the conditions in Schedule 2 is met.  In Schedule 2, the condition that is relevant for present purposes is that found in paragraph 6: that the processing is “necessary for the purposes of legitimate interests pursued by the data controller or by the third party… to whom the data are disclosed, except where the processing is unwarranted… by reason of prejudice to the rights and freedoms or legitimate interests of the data subject”.

The Commissioner’s decision

[7]        The Commissioner decided that the information requested by the appellant was exempt from disclosure under section 30(b)(i) of the 2002 Act.  She indicated that in assessing whether the disclosure of information would be likely to inhibit substantially the free and frank provision of advice, she would take account of factors such as the subject matter, the content of the information and the circumstances existing at the time of the request.  She further stated that the main consideration in determining whether the exemption applies is whether the disclosure of the information would, or would be likely to, have a substantially inhibiting effect on the free and frank provision of advice.  The Commissioner took the view (paragraph 20) that, in order for the exemption in section 30(b)(i) to apply, the damage caused by disclosing the information must be “both real and significant, as opposed to hypothetical or marginal”.  In addition, the damage would have to occur in the near future and not at some distant time, and the harm in question should take the form of substantial inhibition from expressing advice in as free and frank a manner as would be the case if disclosure could not be expected to follow.  Importance was attached to the word “substantial”.  Where, however, advice is communicated or received as part of an individual’s expected day-to-day professional activities, the risk of substantial inhibition if the information is released will be diminished.  The Commissioner concluded that the sensitivity of the information requested, the nature of the communications and the circumstances in which the information was created were such that its disclosure would be likely to cause the substantial inhibition envisaged by the exemption in section 30(b)(i): paragraph 24 of her decision.  On that basis she was satisfied that the PIRC had demonstrated that disclosure of the information would, or would be likely to, substantially inhibit officials and organisations from providing such advice in future: paragraph 25.

[8]        The Commissioner then considered the public interest test.  She stated that the public interest does not mean “of interest to the public” but “in the interest of the public”: disclosure must serve the interests of the public.  The PIRC had accepted that there was a public interest in making information available to improve accountability and transparency.  He nevertheless submitted that exchanges such as those in issue would be jeopardized if such communications were considered suitable for disclosure where the issues under consideration were still sensitive and remained relevant.  The appellant had submitted that complaints of police misconduct or potential criminality in a criminal investigation were significant, and there was a clear public interest in making such information available.  The Commissioner acknowledged the public interest in transparency, and that that was a consideration to be taken into account.  She decided, however, that there was a justifiable expectation on the part of the individuals involved in the communications under consideration that the information would not be disclosed into the public domain.  The information was, and remained, very sensitive.  On that basis, balancing potential benefits of disclosure against potential harm, she was not satisfied that the public interest in disclosure of the particular information was strong enough to outweigh the public interest in containing the exemption: paragraph 35.

[9]        In relation to section 38(1)(b), the Commissioner held that the withheld information comprised the personal data of more than one individual.  In so holding she stated that she applied the definition in section 1(1) of the Data Protection Act 1998.  The individuals named within the information could be identified from it.  She then considered the relevance of the conditions found in Schedule 2 to the Data Protection Act, to determine whether any of these would permit the personal data to be disclosed.  The only condition that she considered potentially relevant was condition 6, which allowed personal data to be processed if that is necessary for the purposes of legitimate interests pursued by the data controller or by the third party to whom the data are disclosed, unless that is unwarranted by reason of prejudice to the rights, freedoms or legitimate interests of the data subjects.  The Commissioner indicated that three tests required to be considered.

[10]      The first test was whether the appellant was pursuing a legitimate interest or interests.  On this issue, she held that the appellant had a legitimate interest in obtaining the personal data, in view of his dissatisfaction with the outcome of the PIRC’s review of his complaints against the police.  The second test was whether the processing of the information (its disclosure) was necessary for the purposes of those interests.  This involved questions of proportionality and balance.  The Commissioner held that it would be necessary for the withheld personal data to be disclosed to the appellant in order that he might achieve his legitimate interests.  No other viable means of meeting the appellant’s interests existed which would involve less interference with the privacy of the data subjects.

[11]      The third test was whether the disclosure would cause unwarranted prejudice to the legitimate interests of the data subjects.  That involves a balancing exercise between legitimate interests of the appellant and those of the data subjects.  A number of factors were of particular relevance to that balancing exercise: whether the information related to the individual’s public life or private life, the potential harm or distress that might be caused by disclosure, whether the individual objected to disclosure, and the reasonable expectations of the individual as to whether the information should be disclosed: paragraph 58.  After considering the parties’ submissions, the Commissioner held that the data subjects would hold no expectations that their personal data would be disclosed into the public domain as a consequence of the appellant’s information request.  She accepted that the information related to the individuals’ personal, rather than public, lives and was highly sensitive: paragraph 62.  On balance, therefore, she did not agree that the fact that disclosure would be necessary to fulfil the appellant’s legitimate interests should outweigh the prejudice that would be caused to the data subjects’ rights, freedoms and legitimate interests.  She considered that such prejudice would be unwarranted in relation to these individuals.  Consequently the requirements of paragraph 6 of Schedule 2 to the Data Protection Act were not satisfied.  The result was that disclosure would be unfair and, because paragraph 6 could not be met, it would also be unlawful.

The appellant’s challenge to the Commissioner’s decision

[12]      As we have noted, the appellant has challenged the decision of the Commissioner, and to that end has advanced seven distinct arguments.  We propose first to consider the meaning of the expression “appeal on a point of law”, found in section 56 of the Freedom of Information (Scotland) Act 2002, and then to deal with certain important features of the function performed by the Commissioner.  Thereafter we will consider each of the arguments put forward on behalf of the appellant.

Appeal on a point of law

[13]      Section 56 of the Freedom of Information (Scotland) Act 2002 permits the person who applied for a decision of the Commissioner to appeal against such a decision to the Court of Session “on a point of law”.  The meaning of this expression is reasonably well established: see Advocate General v Murray Group Holdings Ltd, 2015 SLT 765; [2015] CSIH 77, at paragraphs [41]-[48].  It can be said to permit appeals falling into four main categories.  First, it obviously permits appeals on the general law: the content of its rules.  Secondly, it permits appeals on the application of the law to the facts as found by the fact-finding tribunal or authority.  Thirdly, it permits an appeal where there has been a fundamental error in the tribunal or authority’s approach to the case; this would cover a decision that is ultra vires, or a case where the tribunal has taken account of irrelevant considerations, or a decision that no reasonable tribunal or authority could properly reach.  It would also cover a decision that is perverse, or irrational, or that contravened established principles of proportionality, or contravened Convention rights arising under the Human Rights Act.  Fourthly, and this can be regarded as merely a specific application of the third category, an appeal on a point of law may be possible where the tribunal or authority makes a finding of fact for which there is no evidence or which is inconsistent with the evidence and contradictory of it.  Except in cases of such a nature, however, when it can be said that there is a breakdown of proper procedure, no appeal is possible on a question of fact.  In particular, no appeal is possible in respect of the weight that the decision-maker has accorded to the various factors that are relevant to its decision.  That obviously assumes that there has been no fundamental error of approach, as would occur if the decision were one that no reasonable decision-maker could reach, or if it were apparent that the decision-maker had taken irrelevant considerations into account or had failed to take account of a relevant consideration.  In the absence of such factors, however, the decision-maker‘s assessment of the weight of the various factual elements that have a bearing on the decision is conclusive.

The function of the Commissioner

[14]      While that is the general approach to the concept of an appeal on a point of law, certain important specialties apply to the Commissioner’s function.  First, the Commissioner operates under the statutory regime in the Freedom of Information (Scotland) Act 2002.  The fundamental purpose of that regime, stated in section 1 of the 2002 Act, is to make information held by Scottish public authorities available to members of the public.  The regime recognizes, however, that good reasons may exist for not disclosing such information; that is the reason for the exemptions that are referred to in section 2 of the Act.  The Commissioner’s function is to adjudicate on such cases, to decide whether particular information falls within one of the exempted categories and if so whether withholding the information is fair in all the circumstances.  It is obvious that the essential purpose of the exemptions would be defeated if as a result of adjudication by the Commissioner exempted information came to be disclosed to the applicant or to the public generally.  For this reason, except to the extent that disclosure is ordered by the Commissioner, her deliberations must necessarily remain confidential.

[15]      Secondly, this consideration inevitably means that there is a practical limit to how far an appeal may be brought against a decision of the Commissioner as to the application of the exemptions from disclosure.  If the Commissioner decides that one of the exemptions applies, the appeal must proceed in ignorance of the underlying facts: see, for example, Scottish Ministers v Scottish Information Commissioner, 2007 SC 330, at paragraph [18], where it is indicated that the resulting lack of information affects the ability of the court to supervise the Commissioner’s exercise of statutory powers.  It might have been possible for the statutory regime to provide for disclosure of the information to the court on a confidential basis, but that was not done; the reason may well be that, in an appeal on a point of law, the opportunity for consideration of the facts is very limited.  The result, however, is that when she considers the application of the exemptions the Commissioner is trusted to adjudicate on any issues of fact in a fair and proper manner and in accordance with the provisions of the Data Protection and Freedom of Information Acts.  On the information available to us in this case, we have no reason to doubt that that is what she has done.

[16]      Thirdly, decisions made by the Commissioner under section 38 will frequently involve data about individuals who work or have worked for a public authority.  We do not think that there is normally any obligation on the Commissioner to contact such individuals to ascertain their views.  In our opinion the test in section 38 must be applied objectively.  That is apparent from the statutory wording.  Section 38 refers to “personal data”, an expression defined in section 1(1) of the Data Protection Act as data “which relate to a living individual who can be identified… from those data”.  That definition is clearly objective.  In present circumstances, the critical test is found in paragraph 6 of Schedule 2 to the Data Protection Act, which permits disclosure if data processing is necessary for the purposes of legitimate interests pursued by the data controller or the third party requesting information except where processing is “unwarranted… by reason of prejudice to the rights and freedoms or legitimate interests of the data subject”.  The two tests contained in that provision, the necessity of disclosure for the purposes of legitimate interests of the person requesting the information and the countervailing consideration of prejudice to the rights, freedoms or legitimate interests of the data subject, appear to us to be based on objective criteria.  The objective nature of those tests is supported by a practical consideration: if the test were not objective, a recalcitrant data subject might be able to prevent disclosure that was manifestly in the public interest, even where a reasonable person in the same position would not object to disclosure.  Because the test is objective, the Commissioner need not consider the wishes of the particular data subject, and is therefore under no obligation to seek out data subjects and ascertain their wishes.  She may, of course, do so if she thinks that appropriate.  If she does discover the views of the data subject, she may give those views such weight as she considers appropriate in the circumstances of the particular case.

[17]      The same is true of section 30(b)(i), where the statutory wording is plainly objective in nature.  That section provides an exemption where disclosure “would, or would be likely to, inhibit substantially… the free and frank provision of advice”.  The reference to cases where disclosure would be likely to inhibit such provision of advice strongly suggests that the test is objective.  Moreover, as with section 38, the use of an objective test prevents a recalcitrant data subject from causing difficulty.  Once again, the Commissioner may take steps to discover the views of individuals affected by her decision, and may take such views into account in the circumstances of the particular case.  Nevertheless, it is important that the test that is ultimately applied is an objective one.

[18]      Fourthly, the tests that the Commissioner must apply include a number of important safeguards for freedom of information.  It is clear to us from the Commissioner’s opinion that she was conscious of those safeguards.  At paragraph 20 of her decision she notes the factors that we have summarized at paragraph [7] above, relating to the scale and timing of the damage that is required if the exemption in section 30(b)(i) is to operate.  It is against that background that her decision must be judged.

[19]      Fifthly, it is apparent that in many cases the Commissioner will be called upon to perform a balancing exercise, between the interest in disclosure of information on one hand and interests in factors such as proper public administration (for example through the free and frank provision of advice) or the confidentiality of personal data on the other hand.  That balancing exercise may involve consideration of a wide range of different factors, and the final striking of the balance may be a delicate matter.  The Commissioner performs this task on a regular basis; it is clearly an important part of her function.  For that reason we are of opinion that this is an area where the courts should accord a considerable degree of deference to the decisions of a public official, and should only interfere if there has been a clear error on a point of law, in the manner discussed in paragraph [13] above.  This factor reinforces the general principle that a challenge to the weight given to various factual elements in a discretionary decision does not involve a point of law.

The appellant’s arguments

1. The Commissioner’s conclusion at paragraph 24 that disclosure would be likely to cause the substantial inhibition envisaged by the section 30(b)(i) exemption, that is to say inhibition from the free and frank provision of advice, was not supported by adequate investigations.  In particular, there was no suggestion in the decision that the individuals who provided or received information were consulted by either the Commissioner or the PIRC in the course of investigations.

[20]      In our opinion this argument must be rejected.  The Commissioner received submissions from both the PIRC and the appellant.  The PIRC informed her that, in investigating the handling of complaints by the police, it was essential that he had the co‑operation of the police.  This was not confined to the documentation produced during a police investigation; it had to extend to the views and opinions of those involved.  The PIRC argued that those who provided information for his review would not have done so if they had known that the information would be divulged to the general public.  He further submitted that officials required “a private space” within which they could discuss issues and communicate freely in order to perform their functions properly.  That, he considered, would be substantially inhibited if the contents of such discussions were disclosed publicly.  That was especially so while discussions were continuing, or where the discussions related to sensitive or controversial issues.  So far as the appellant’s request was concerned, the issue in question was live at the time of the request, and thus the persons and bodies concerned might be substantially inhibited from providing views in future if the information were to be disclosed.  The PIRC also indicated that it was understood, although not explicitly stated, that such advice would be confidential in order that it could be provided freely.  The Commissioner received submissions from the appellant in which he asserted that the PIRC had not provided any evidence that disclosure of the information would cause substantial inhibition to the provision of advice, and that it was perverse to suggest that the threat of public knowledge would prevent the bodies concerned from explaining their positions.

[21]      In her decision the Commissioner stated that she considered all of the submissions made by the PIRC and the appellant, along with the information that had been withheld.  She further considered the nature of the information, including the material contained within it, the context in which it was created and the likely expectations of the individuals who provided and received the advice contained in the withheld documents.  She applied the statutory tests to that, and concluded that the PIRC had demonstrated that disclosure of the information withheld would, or would be likely, to inhibit officials and organisations from providing such advice in future, to a substantial degree.  For that reason the exemption in section 30(b)(i) applied.  In so concluding, she stated that she had regard to the sensitivity of the information, the nature of the communications and the circumstances at which the information was created.  In our opinion the Commissioner’s reasoning cannot be faulted.  She took account of the submissions made to her, to the extent that she considered them relevant, and made use of the correct statutory test.  As we have indicated, that test is objective in nature.  Consequently the Commissioner did not require to ascertain the views of the individuals involved.  The test was rather whether reasonable police officers in the same position would be likely to be inhibited in the free and frank provision of advice.  That test applies regardless of the views of the police officers who were actually involved.  There was accordingly no requirement that the Commissioner should obtain the views of those officers.  She had the views of the PIRC, who of course is in regular contact with police forces and police officers in connection with complaints that are made.  She was entitled to accept his view as to likely prejudice.  As to the content of the information, for the reasons that we have already discussed this cannot be made available without prejudicing its confidentiality.  Finally, we can discover no trace of perversity or unreasonableness in the decision made by the Commissioner

1. The Commissioner concluded at paragraph 25 that the PIRC was entitled to apply the exemption in section 30(b)(i) of the Freedom of Information (Scotland) Act without giving intelligible reasons.

[22]      In our opinion the Commissioner gave adequate reasons for her conclusion that the PIRC was entitled to apply the exemption in section 30(b)(i).  The critical factors, which are set out in paragraph 24 of the decision, were the sensitivity of the information, the nature of the communications and the circumstances in which the information was created.  In our opinion these are plainly material factors.  As we have indicated, the information itself cannot be disclosed without risking its confidentiality, and we must assume that the Commissioner took proper account of its content.  Nevertheless, the proper legal tests were applied, and we cannot fault the Commissioner’s reasoning, or stigmatize it as unintelligible.  This ground of appeal must accordingly be rejected.

1. The Commissioner failed to give intelligible reasons for concluding at paragraphs 34 and 35 that the public interest in disclosure was outweighed by the public interest in maintaining the exemption in section30(b)(i).

[23]      In relation to the public interest test in section 30(b)(i), the Commissioner correctly noted that the public interest is something of serious concern and benefit to the public, and not merely something of individual interest.  She acknowledged that there is a public interest in transparency in relation to the actions and decision-making processes of public bodies, including the police, and that disclosure of the information would shed some light on those actions and processes.  She further acknowledged that the appellant had a strong personal interest in obtaining the information that he sought.  Nevertheless, the critical question was whether the information should be made available to the public, and not merely the appellant.  She thought that there was a justifiable expectation on the part of the individuals concerned in the communications that the information would not be disclosed to the public; the information was and remained very sensitive.  The Commissioner thought that it would not be in the public interest to discourage relevant parties from corresponding openly and candidly in relation to such matters in future.

[24]      On that basis, she considered that the public interest in maintaining the exemption in section 30(b)(i) outweighed the public interest in disclosure, and that accordingly the PIRC was entitled to withhold the information.  In our opinion this reasoning cannot be faulted. The decision cannot be considered perverse or unreasonable, in the sense that no reasonable person in the Commissioner’s position could come to it.  The factors that are taken into account are clearly relevant to the decision that the Commissioner had to make.  Her reasoning is in our opinion perfectly clear; a reasonable person could be in no doubt as to what her decision was and the considerations that were treated as material in reaching that decision.  The appellant’s objections are in our view merely disagreement as to the weight that the Commissioner gave to the competing considerations.  That, however, cannot amount to an error of law, and therefore it does not provide any ground of appeal under section 56 of the Freedom of Information (Scotland) Act.  This ground of challenge must accordingly fail.

1. In relation to the application of section 38(1)(b), the Commissioner concluded at paragraph 63 that the disclosure necessary to fulfil the appellant’s legitimate interests did not outweigh the prejudice that would be caused to the data subjects’ rights, freedoms and legitimate interests, but did not give an adequate or intelligible explanation of the underlying reasoning. In particular, the data subjects’ rights, freedoms and interests were not specified.

[25]      In relation to section 38(1)(b), the Commissioner decided that the relevant information was the personal data of a number of individuals, who could be identified from the information; consequently the definition of “personal data” in section 1(1) of the Data Protection Act 1998 was satisfied.  That finding is not challenged.  The Commissioner went on to consider the application of the first data protection principle found in Schedule 1 to the 1998 Act.  The PIRC had submitted that making information available would breach that principle, on the ground that making the data publicly available would result in unwarranted prejudice to the rights, freedoms and legitimate interests of the data subjects.

[26]      The Commissioner considered the application of the first data protection principle in some detail: paragraphs 43-64.  Her reasoning is summarized above at paragraphs [9]-[11].  She decided that the information in question was not “sensitive” personal data, with the result that the only conditions that required to be satisfied to permit disclosure were those in Schedule 2 to the 1998 Act; those in Schedule 3 were irrelevant.  The Commissioner thought that the only condition in Schedule 2 that might apply in the present case was condition 6, and she noted that the application of that condition involves a balancing exercise between the legitimate interests of the applicant and those of the data subjects. She proceeded to carry out that balancing exercise, as indicated above at paragraph [11].  In doing so, she had regard to a number of identified factors, including potential harm that might be caused by the disclosure and the reasonable expectations of the data subject as to disclosure.  The PIRC had submitted that disclosure would impact on the privacy of the individuals concerned, and it could not be assumed that the data subjects would be agreeable to such disclosure.  Furthermore, some of the personal data would lead to disclosure of information relating to the individual data subject’s private life.  Those submissions were countered in submissions of behalf of the appellant.  He did not consider that it would be outwith the expectations of the data subjects that their personal data would be disclosed, and he stated that he was concerned by what he considered to be a divergence of accounts in relation to the matter which was the subject of his complaints to the police.  The Commissioner considered that the data subjects would hold no expectations that their personal data would be disclosed into the public domain, and that some of the information related to the individuals’ personal, rather than public, lives and to that extent was highly sensitive.  On that basis she concluded that the test in condition 6 of Schedule 2 was not met in relation to those individuals.

[27]      In our opinion the Commissioner in her decision gives an entirely adequate and intelligible explanation of her reasoning.  She correctly identified the critical balancing exercise that arises under condition 6 of Schedule 2, and she proceeded to carry out that exercise.  All of that is clear from her decision.  In carrying out that exercise she took into account a range of factors that were plainly relevant.  We do not have the information that she considered but, as we have indicated, that cannot be disclosed to the court.  The challenge to the Commissioner’s decision can only be on the basis of an error of law, and the evaluation of the factual information cannot be said to amount to an error of law unless it is carried out in a manner that no reasonable Commissioner could adopt, or is perverse, or takes irrelevant factors into account or fails to take account of relevant factors.  In the present case it is not suggested that the Commissioner’s decision is perverse or unreasonable in the foregoing sense.  Nor was it suggested that she failed to take account of the specific factors that were put forward by the appellant and the PIRC, or that she took account of an irrelevant factor.  All that is left, therefore, is a complaint about the weight accorded to the various factors, which cannot be an error of law.

[28]      A specific ground of criticism advanced on behalf of the appellant was that the Commissioner did not specify the rights, freedoms and interests of the data subjects that were involved in the balancing exercise, and that accordingly her reasons were not intelligible.  It was further submitted that the corresponding rights of the appellant were not referred to.  In our opinion there is no merit in these submissions.  The Commissioner expressly referred to the competing interests that were involved, and expressly accepted that the appellant had a legitimate interest in obtaining the personal data concerned.  The rights, freedoms and interests of the data subjects appear to us to be very obvious: they centre on the basic right to privacy that underlies many of the provisions of the Data Protection Act.  In his submissions to the Commissioner the PIRC made express reference to the privacy of the individuals concerned: paragraph 59.  That right to privacy has plainly been taken into account by the Commissioner.  The details are not given but, as we have indicated, it would be impossible to do so without contravening the confidentiality of the information concerned.

1. Among the factors recorded by the Commissioner at paragraph 58 as bearing on the section 38(1)(b) balancing exercise were whether the individual data subject objected to disclosure and the reasonable expectations of that individual about disclosure.  There was, however, no reference to the Commissioner’s having considered specific information about these factors; thus there was an ex facie absence of evidence.

[29]      As we have already indicated, the Commissioner is under no obligation to ascertain the views of the particular data subject; the tests in section 38 of the Freedom of Information (Scotland) Act and section 1 of and paragraph 6 of Schedule 2 to the Data Protection Act must be applied objectively, with the result that it is the views of a reasonable person in the data subject’s position that are relevant. The argument for the appellant appears to proceed on the basis that the Commissioner is under an obligation to discover the actual views, using a subjective rather than an objective test.  That in our opinion is incorrect as a matter of law.

1. The Commissioner did not differentiate in her decision on section38(1)(b)  between individuals who might already have been named in the course of media coverage of the death of Barry Wallace, the murder victim, and those who had not been so named.

[30]      In our opinion this argument must be rejected.  It is once again relevant that the tests applied to decisions under section 38(1)(b) are objective in nature; thus the circumstances of the particular data subjects are of limited significance.  Moreover, it does not appear to have been suggested to the Commissioner that she should differentiate between police officers or former police officers who might have been identified in media coverage of the death of Barry Wallace and those who are not so identified.  That coverage took place more than 10 years previously, and it is obvious that public recollection of the identities of the police officers involved is likely to fade or disappear over such a period. For that reason we cannot regard this as a factor that was relevant to the Commissioner’s decision.

1. The Commissioner’s conclusion at paragraph 62 that the information relevant to the section38(1)(b) exemption related to the individuals’ personal rather than public lives did not accord with the submissions of the PIRC; the PIRC had not suggested that all of the information related to personal lives.  On that basis the reasoning as to why disclosure would cause unwarranted prejudice to the legitimate interests of the data subjects was not clear or intelligible.  Furthermore, the Commissioner’s decision did not address the question of redacting the material disclosed.

[31]      The submissions made to the Commissioner by the PIRC, as recorded by her in her decision, were to the effect that disclosure of some of the personal data, when linked with other parts of the withheld information, would lead to disclosure of information relating to an individual’s private life.  The submission for the appellant is that not all of the withheld information related to the data subjects’ private lives; part of it related to their public lives. Nevertheless, the fact that part of the information related to the data subjects’ private lives was a factor that the Commissioner was plainly entitled to take into account in reaching her decision.  As to the possibility of redacting the material disclosed, presumably by deleting all material that related to the data subjects’ private lives, no such submission appears to have been made by the appellant to either the PIRC or the Commissioner.  In the circumstances we are of opinion that there was no obligation on the Commissioner to consider such a course.  Furthermore, we are conscious that the process of redaction might be extremely difficult.  Finally, it is important to note that the Commissioner’s decision on section 38(1)(b) was based on the totality of the submissions made by both the appellant and the PIRC, and that the Commissioner had the whole of the withheld information available to her when she made her decision.  She records that she considered that the data subjects would hold no expectations that their personal data would be disclosed into the public domain.  That would of itself be a good reason for refusing disclosure.  In all the circumstances we can detect no error of law in this aspect of the Commissioner’s decision.

Conclusion

[32]      For the foregoing reasons, we are of opinion that the arguments advanced on behalf of the appellant must the rejected in their entirety.  We will accordingly refuse the appeal.