EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lord Mackay of Drumadoon Lord Brailsford Lord Marnoch

[2012] CSIH 30 XA45/11 OPINION OF THE COURT delivered by LORD MARNOCH in Appeal to the Court of Session under Section 56 of the Freedom of Information (Scotland) Act 2002 by SOUTH LANARKSHIRE COUNCIL Appellant; against a decision of The Scottish Information Commissioner dated 17th March 2011 and communicated to the Appellant on 18th March 2011 THE SCOTTISH INFORMATION COMMISSIONER Respondent: _______

Act: Wolffe Q.C., Barne; Simpson & Marwick W.S.

Alt: Johnston Q.C., Ross; Anderson Strathern LLP

27 March 2012

[1] This is an Appeal at the instance of South Lanarkshire Council against a decision of the Scottish Information Commissioner under Section 56 of the Freedom of Information (Scotland) Act 2002.

[2] The requested information concerned the basic hourly rate of pay for the Appellant's job category, "Land Service Operative 3" ("LSO 3"). The Requester, Mr Irvine, wanted to know how many of the total number of LSO 3 posts were placed at Spinal Column Points 25-34 respectively. Although the precise nature of this information was explained to us, it did not in the end prove relevant to a resolution of the legal issues involved. What is relevant is that the Appellant declined to divulge the information in question and it appears from the papers that their principal concern was the possibility that individual employees might be identifiable if the information were released. In the result, however, the Commissioner, who was the only compearing Respondent in the Appeal, found, as matter of fact, that that apprehension was unfounded and the Appellant makes no challenge to the validity of that finding. There were, however, certain other concerns expressed by the Appellant and these were considered by the Commissioner in the context of the information or data in question being, of concession, "personal data" in the hands of the Appellant within the meaning of Section 1(1) of the Data Protection Act 1998.

[3] By virtue of a series of statutory provisions which are conveniently set out by the Divisional Court in Corporate Officer of the House of Commons v The Information Commissioner and Others [2009] 3 All ER 403 at paras 7-12, and which we do not here repeat, the relevant legal requirement which the Commissioner had to hold satisfied before ordering release of such data is set out in para 6(1) of Schedule 2 to the 1998 Act which is in the following terms:-

"The processing is necessary for the purposes of legitimate interests pursued by...the third party or parties to whom the data are disclosed, except where the processing is unwarranted in any particular case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject."

[4] The Commissioner held that that requirement was satisfied and that the information should accordingly be released. The Appellant takes issue with that conclusion.

[5] The first ground of appeal is that there had been in this case a breach of Natural Justice in that, at paras 40 and 41 of his Decision, the Commissioner had regard to certain additional submissions made to him by the Requester on 26 November 2010 and 10 December 2010 without alerting the Appellant to their contents. However, under reference to earlier correspondence passing between the Appellant, the Requester and the Commissioner, we are satisfied that many, if not all, of the matters later canvassed between the Requester and the Commissioner were previously within the knowledge of the Appellant and that, insofar as relevant, they could be - and were - made the subject of legal submissions to this court.

[6] For the rest, it was submitted that the Commissioner had misdirected himself in law in essentially two respects, first in failing to identify clearly the nature of the Requester's "legitimate interest" in obtaining the information sought, and, secondly, and perhaps more importantly, in failing to consider as a distinct matter, and according to its ordinary meaning, whether the information was "necessary" for the purposes of the legitimate interest in question.

[7] So far as the matter of specification of "legitimate interest" is concerned, it is true that the Commissioner's findings in para 44 of his Decision leave something to be desired but, reading, as we must, the Decision as a whole, we are satisfied that as a "freelance writer" who published a "blog" specialising in, inter alia, issues of "Equal Pay" the Requester did have such an interest.

[8] As to the second question, there is little doubt that the Commissioner did, as the Appellant submits, view the issue of "necessity" as being inextricably linked with that of proportionality. For instance, at para 34 of the Decision he says:

"There are, therefore, a number of different tests which must be satisfied before condition 6 can be met. These are:

(a) Does Mr Irvine have a legitimate interest in obtaining the personal data?

(b) If yes, is the disclosure necessary to achieve these legitimate aims? In other words, is the disclosure proportionate as a means and fairly balanced as to ends, or could these legitimate aims be achieved by means which interfere less with the privacy of the data subject?

...".

This approach is later reflected at paras 50 and 51 of the Decision.

[9] Mr Johnston, Q.C., for the Commissioner, submitted, however, that this approach was entirely correct having regard to the genesis of the legislation and, more particularly, the approach of the European Court of Justice to the construction of Article 8 of the European Convention on Human Rights. In this connection, Mr Johnston founded strongly on the approach taken to para/condition 6 by both the Information Tribunal and the Divisional Court in Corporate Officer of the House of Commons v The Information Commissioner and Others cit sup. So far as the decision of the Information Tribunal is concerned, he relied on the following passages:

"56. The wording of condition 6 requires a judgment to be made, which was referred to in the Baker case at paragraph 90, reflecting the submissions of counsel, as a balancing exercise:

'... the application of Paragraph 6 of the DPA involves a balance between competing interests broadly comparable, but not identical, to the balance that applies under the public interest test for qualified exemptions under FOIA. Paragraph 6 requires a consideration of the balance between: (i) the legitimate interests of those to whom the data would be disclosed which in this context are members of the public (section 40(3)(a)); and (ii) prejudice to the rights, freedoms and legitimate interests of data subjects which in this case are MPs. However because the processing must be "necessary" for the legitimate interests of members of the public to apply we find that only where (i) outweighs or is greater than (ii) should the personal data be disclosed.'

57. In the present case we have received fuller submissions as to the precise nature of the exercise of judgment required by condition 6. Since, as the Tribunal pointed out in Baker, the exercise is not identical to the application of the public interest test for qualified exemptions under FOIA, we do not consider it helpful to pursue that analogy further.

58. ...

59. Ms Grey and Mr Tomlinson both submitted, and we accept, that the word 'necessary' as used in the Schedules to the DPA carries with it connotations from the European Convention on Human Rights, including the proposition that a pressing social need is involved and that the measure employed is proportionate to the legitimate aim being pursued: see Stone v South East Coast Strategic Health Authority [2006] EWHC 1668 (Admin), at paragraph 60. This is because Article 8 (right to private life) is an important source of inspiration for the Data Protection Directive. When applying the Directive the Court of Justice has interpreted it in the light of Article 8. Interference with private life can only be justified where it is in accordance with the law, is necessary in a democratic society for the pursuit of legitimate aims, and is not disproportionate to the objective pursued: Joined Cases

C-465/00, C-138/01 and C-139/01 Österreichisher Rundfunk and Others [2003] ECR I-4989 at paragraphs 64-72. Thus in that case (which concerned legislation requiring disclosure of the names and salaries of public officials) the Court identified the essential questions as whether there was an interference with private life, whether the interference was justified by a legitimate aim, and whether the interference was necessary to achieve the legitimate aim pursued, i.e., whether a pressing social need was involved and the measure employed was proportionate to the aim (paragraphs 73-94).

60. In this connection we were much assisted by Dyson LJ's exposition in Samaroo v Secretary of State for the Home Department [2001] EWCA Civ 1139, to which Ms Grey drew our attention, at paragraphs 13-28. Adapting that exposition to the very different circumstances of the present case, we consider that for the purposes of condition 6 two questions may usefully be addressed:

(A) whether the legitimate aims pursued by the applicants can be achieved by means that interfere less with the privacy of the MPs (and, so far as affected, their families or other individuals),

(B) if we are satisfied that the aims cannot be achieved by means that involve less interference, whether the disclosure would have an excessive or disproportionate adverse effect on the legitimate interests of the MPs (or anyone else).

61. Question (A) assists us with the issue of 'necessity' under the first part of condition 6. Question (B) assists us with the exception: whether the processing is unwarranted in the particular case by reason of prejudice to the rights and freedoms or legitimate interests of the data subjects".

By the time the case came before the Divisional Court it can be seen, at para 43 of the judgment, that it was apparently "common ground" that, "'necessary' within schedule 2 para 6 of the DPA should reflect the meaning attributed to it by the European Court of Human Rights when justifying an interference with a recognised right, namely that there should be a pressing social need and that the interference was both proportionate as to means and fairly balanced as to ends".

[10] As against all that Mrs Wolffe, Q.C., for the Appellant, founded strongly on the clear wording of para 6 and submitted that, particularly having regard to the proviso or exception (which involved its own balancing exercise), the word "necessary" should be accorded its ordinary and natural meaning, with the opening phrase being understood as imposing a distinct requirement. We do see the force of that submission and, but for the authority just cited, we would have had little hesitation in giving effect to it. As it happens, however, we find it unnecessary in this case to form a concluded view as to which is the correct approach. We say that because, having regard to the Commissioner's findings looked at as a whole, we are satisfied that even applying the stricter test the Commissioner could only have concluded that necessity was made out. In particular, he held that the Requester's own interest coincided with a widespread public interest in the matter of gender equality and that it was important to achieve transparency on the subject of Equal Pay. No better means existed to achieve that goal than by releasing the information in question.

[11] In all the circumstances, therefore, we shall refuse the appeal.

[12] By way of post-script we should note that at the outset of the hearing there was a question as to whether the Commissioner had a locus to appear as a Respondent. In the instant case, however, we were satisfied that, whatever else, there was a public interest in the proper construction of the legislation which might not fully be served by those immediately involved in the dispute. There was also the consideration that, the Requester having chosen not to appear as a Respondent, the court would have been without a contradictor but for the presence of the Commissioner. In the result we are obliged to counsel for both compearing parties for the assistance which they gave us.