Last week the Second Division of the Inner House of the Court of Session (Lord Justice Clerk and Lords Malcolm and Armstrong) refused an appeal under section 56 of the Freedom of Information (Scotland) Act 2002 (“FOISA”) against a decision of the Scottish Information Commissioner. The decision appealed against concerned the application of section 12 of FOISA by the Police Investigations and Review Commissioner (“PIRC”) in relation to the appellant’s request for information to PIRC.

The Appellant had made a request for information to PIRC seeking the information as to the number of police officers it had arrested since it came into being in 2013. PIRC issued a response to the Appellant advising that the cost of complying would be £108,390, well in excess of the £600 limit applicable in terms of FOISA and the Regulations. PIRC said that in order to comply with the request for information it would need to review 433,588 files as the information requested was not recorded as a matter of routine. Unhappy with this response, the Appellant eventually made an application to the Scottish Information Commissioner for a decision in terms of section 47(1) of FOISA. The Commissioner issued a decision notice upholding the decision of the PIRC; however, the Commissioner also found that PIRC had failed to provide advice and assistance in terms of section 15 of FOISA. The Appellant thereafter appealed to the Court of Session.

The Appellant argued that the Commissioner had failed to take into account the public interest in disclosure of the information in reaching decision that he did. The Court held, at [4], that this proposition was “misconceived.” The public interest test only arises “if a request is refused because of an exempt category of information” in Part 2 of FOISA. [4] Section 12 applies to all request and there was no reliance upon an exemption within Part 2 of FOISA in relation to the Appellant’s request. [4]

The Appellant sought a declarator from the court that PIRC owed a duty of care to keep the public informed as to police officer’s conduct. The court held, at [5], that it had no power to make such a declarator. The functions of PIRC are set out in section 62 of the Police and Fire Reform (Scotland) Act 2012. The court was concerned, in this case, with an appeal against a decision of the Scottish Information Commissioner and whether the Commissioner had erred in law (see [3] and [5]). In any event PIRC were not party to the proceedings (which is very much the norm in Scottish FOI appeals given that the Court of Session does not have the power to order disclosure of withheld information, merely to reduce the decision of the Commissioner and remit it back to him for a fresh determination if the Commissioner has erred in law); the court was unable to “embark upon a review of its performance in general, nor of its record-keeping and data retrieval systems.” [5]

The Appellant argued, in what the court considered as “an arguable error of law” [6], that the Commissioner had erred in law because he had based his decision on PIRC’s current systems for the storage of data. The Appellant considered that PIRC’s systems were “out of date, highly efficient and conducive to a lack of transparency and accountability.” [6] The Appellant argued that the cost estimate given by PIRC “could not be regarded as sensible, realistic and supported by cogent evidence.” The Appellant continued that the Commissioner ought to have had regard to modern automated systems potentially allowing for a less costly response to her system; the Commissioner should have sought expert advice on the subject as part of his investigation.

In refusing the appeal, the Court had regard to the decision of the Upper Tribunal in Kirkham v Information Commissioner [2024] UKUT 127 (AAC), which concerned the equivalent provisions within the Freedom of Information Act 2000 (“FOIA”). The Court, at [10]-[11], cited, with approval, paragraphs 17-20 of Kirkham. In essence, the cost estimate is based upon the way in which the authority actually holds the information at the time the request is made. The Court held that “the Commissioner would have erred had he concluded that the information should be disclosed because the cost of compliance could be reduced to an amount below the limit if PIRC upgraded its systems.” [11] It is not the Commissioner’s role to police the data management procedures of public authorities such as PIRC; his only role is to consider whether it has complied with its duties under FOISA and that is a question which depends upon the terms of the Act. [11]

The Appellant also challenged the Commissioner’s finding that PIRC had failed to comply with the requirements of section 15 of FOISA. The Court was not satisfied that these amounted to an error of law on the part of the Commissioner. [14] These were matters for the Commissioner as a specialist. [14]

The Appellant made other challenges which did not have any merit to them and are dealt with, briefly, at paragraph [12] of the court’s opinion.

As will be known to anyone familiar with FOISA and FOIA, an appeal against a decision of the Scottish Information Commissioner is only on a point of law; there is no full merits appeal from his decisions in the way there is of decisions of the Information Commissioner under FOIA. The Court of Session took the opportunity to affirm that as the Commissioner is a specialist statutory decision-maker, it will afford a degree of institutional respect in relation to decisions within his area of competence. [3] and [14]

The Opinion of the Court in this appeal confirms that the approach to section 12 of FOISA is the same the approach to section 12 of FOIA as explained in Kirkham. If a Scottish public authority has a records management system that is so inefficient and out-dated that it results in it being too costly to search, locate and retrieve information that falls within the ambit of a request for information then the requester simply has to take the authority’s records management system as it exists.

_{Disclaimer: This article is for information purposes only and nothing in it should be taken as constituting legal advice.}