Common Services Agency (Appellants) v Scottish Information Commissioner (Respondent) (Scotland) - [2008] UKHL 47

HOUSE OF LORDS

SESSION 2007–08
[2008] UKHL 47

on appeal from: [2006] SCOTCS CSIH 58

OPINIONS

OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE

Common Services Agency (Appellants) v Scottish Information Commissioner (Respondent) (Scotland)

Appellate Committee

Lord Hoffmann

Lord Hope of Craighead
Lord Rodger of Earlsferry
Baroness Hale of Richmond
Lord Mance

Counsel

Appellants: Respondent:

Valerie Stacey QC Paul Cullen QC

Ruth Crawford Morag Ross

(Instructed by Reynolds Porter Chamberlain LLP for R

(Instructed by Brodies LLP)

F Macdonald)

First Intervener (Information Commissioner)
Timothy Pitt-Payne

(Instructed by Information Commissioner’s Office)
Second Intervener (Secretary of State for Justice)

Lord Davidson of Glen Clova QC
Jason Coppel

John MacGregor

(Instructed by Treasury Solicitors for Office of the Solicitor to the Advocate General)

Hearing date:

1 and 2 APRIL 2008

ON
WEDNESDAY 9 JULY 2008

HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE

Common Services Agency (Appellants) v Scottish Information
Commissioner (Respondent) (Scotland)
[2008] UKHL 47

LORD HOFFMANN
My Lords,
1. I have had the advantage of reading in draft the speech of my

noble and learned friend Lord Hope of Craighead. For the reasons he
gives, with which I agree, I too would allow this appeal.

LORD HOPE OF CRAIGHEAD
My Lords,
2. This case raises important questions about the interaction between provisions of the Data Protection Act 1998 (“DPA 1998”) on the one hand and provisions of the Freedom of Information (Scotland) Act 2002 (“FOISA 2002”) on the other. The corresponding provisions of the Freedom of Information Act 2000 (“FOIA 2000”), which extends to the whole of the United Kingdom and applies to UK public authorities located in Scotland, are not engaged directly. The appellant, the Common Services Agency (“the Agency”), is a special Health Board the regulation of whose functions is a matter for the Scottish Parliament: see FOIA 2000, section 80. But much of the wording of section 38 of FOISA 2002, which addresses the overlap between rights of access under that Act and rights of access under DPA 1998, is reproduced in section 40 of FOIA 2000, which addresses the same problem. Section 38(2)(a) of FOISA, in particular, is in exactly the same terms as section 40(3)(a) of FOIA 2000. So resolution of these questions will have a bearing on the interaction between DPA 1998 and freedom of information legislation throughout the United Kingdom.
3. Unlike DPA 1998, which was designed to implement Council Directive 95/46/EC of 25 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, neither FOIA 2000 nor FOISA 2002 were enacted to give effect to the United Kingdom’s obligations under community law. But there had been increasing pressure for the enactment of legislation of this kind, reflecting concern about the lack of openness on the part of the executive. The US Freedom of Information Act 1966 was an important landmark, as was the introduction, following Declaration No 17 to the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Common Services Agency (Appellants) v Scottish Information C...

Details

AGLC: Common Services Agency (Appellants) v Scottish Information Commissioner (Respondent) (Scotland) [2008] UKHL 47
Case: [2008] UKHL 47
Decision Date: 9 July 2008

CaseChat Overview and Summary

In this case, the House of Lords considered an appeal by the Common Services Agency (the Agency) against a decision of the Scottish Information Commissioner (the Commissioner) to order the Agency to release data on childhood leukaemia incidence to Mr Michael Collie. The Agency argued that the data, if released, would constitute personal data within the meaning of the Data Protection Act 1998 (DPA 1998) and that its release would contravene the data protection principles. The Commissioner, however, had ordered the Agency to release the data in a barnardised form, which he believed would not constitute personal data and would not contravene the data protection principles. The House of Lords allowed the appeal, holding that the Commissioner's decision contained errors of law and that the case should be remitted to him to consider whether the information could be sufficiently anonymised for it not to be personal data, and if not, whether its disclosure would comply with the data protection principles. The Lords of Appeal agreed that if the Commissioner found that the information was sensitive personal data and that none of the conditions in Schedule 3 DPA 1998 were met, it would not be possible for the data at ward census level to be released without contravening the first data protection principle. As a result, the Agency, as the data controller, would be prohibited by section 4(4) DPA 1998 from processing the data which it holds in a way that does not comply with those principles, and the information would be exempt from the duty of disclosure under the Freedom of Information (Scotland) Act 2002. The appeal was allowed, and the case was remitted to the Commissioner for reconsideration.

Orders