Court rejects Executive information appeals

Papers relating to Law Reform Act commencement and planning call-in should be disclosed

News, 23 January 2007

The Scottish Executive has lost its appeal against the Information Commissioner's order for disclosure of documents in two contested cases under the Freedom of Information Act.

In a judgment issued today, the Court of Session upheld the Commissioner's decision that, with a few exceptions, the public interest favoured disclosure of advice to ministers over the decision to delay bringing into force the sections of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 relating to rights of audience in court for professional groups other than lawyers.

The court also agreed that disclosure should be made of papers relating to a decision not to call in an application for permission to dump waste in Trearne Quarry, North Ayrshire, said to be one of the best sites in the world for marine fossils.

In each case ministers had relied principally on the exemption relating to advice to ministers, if disclosure would be likely to inhibit substantially the free and frank provision of advice. The court agreed with the Commissioner that the Executive had attempted to apply this provision too widely - it did not apply to all advice given, and each case was to be assessed on its facts and circumstances.

The proper approach, the court added, was to assess whether the release of the advice or opinion contained within each document would be capable of having an inhibiting effect.

The court also pointed out that it had limited scope for detecting errors of law by the Commissioner where it was not shown the documents in controversy. Here the Commissioner had not been shown to have erred in either case.

Welcoming the decision, Mr Dunion said: Kevin Dunion, the Scottish Information Commissioner, said: “This is an important judgment in my favour. The court has agreed that it was wrong of the Executive to conclude that it would be harmful to release information which it characterised as belonging to a class or type, e.g. advice to ministers, without regard to the content of that information. I have consistently maintained this is not what Parliament intended and is not what the Freedom of Information (Scotland) Act allows.”

He added: “At the heart of these cases is whether the public is given access to information which allows them to understand why decisions have been arrived at. With regard to the Law Reform Act, I took the view that a democratic society is entitled to expect that legislation passed by its elected representatives in Parliament will be brought into force unless there are good reasons for not doing so, and citizens are entitled to know those reasons unless there is a greater public interest in keeping them secret.”

The court's decision can be read at http://www.scotcourts.gov.uk/opinions/2007CSIH08.html .