South Lanarkshire Council v The Scottish Information Commissioner

Summary

Trinty Term
[2013] UKSC 55
On appeal from: [2012] CSIH 30

JUDGMENT

South Lanarkshire Council (Appellant) v The Scottish Information Commissioner (Respondent)

before

Lady Hale, Deputy President

Lord Kerr

Lord Wilson

Lord Reed

Lord Carnwath

JUDGMENT GIVEN ON

29 July 2013

Heard on 8 July 2013

Appellant
Sarah Wolffe QC
Jonathan Barne
(Instructed by Simpson & Marwick)

Respondent
Richard Keen QC
Morag Ross
(Instructed by Anderson Strathern LLP)

LADY HALE (with whom Lord Kerr, Lord Wilson, Lord Reed and Lord Carnwath agree)

In May 2010, Mr Mark Irvine made a number of requests under the Freedom of Information (Scotland) Act 2002 (FOISA) for information from South Lanarkshire Council. He wanted to know how many of their employees in a particular post were placed at 10 particular points on the Council's pay scales. His underlying purpose was to find out whether the Council's pay gradings favoured work traditionally done by men. He did not want to know the names of the employees concerned. The Council refused his request on the ground that to comply with it would contravene the Data Protection Act 1998 (DPA). Mr Irvine complained to the Scottish Information Commissioner who investigated and decided that the information should be disclosed. The Council appealed unsuccessfully to the Inner House of the Court of Session and now appeals to this Court.

There are two issues before this Court. First and most important is the proper interpretation of condition 6 in Schedule 2 to the 1998 Act. It is common ground for the purpose of this case that the information requested is "personal data" in the hands of the Council as data controller. Personal data may only be processed if one of the conditions in Schedule 2 is met and condition 6 is the only relevant condition:

"The processing is necessary for the purposes of legitimate interests pursued by the data controller or 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."

The second issue is whether the Commissioner acted in breach of natural justice by failing to disclose to the Council all of the communications passing between the Commissioner and Mr Irvine and two Members of the Scottish Parliament in the course of his investigations.

The legislation

The inter-relationship between the DPA 1998 and the FOISA 2002 is uncontroversial in these proceedings. Information is absolutely exempt from disclosure under the FOISA if it constitutes personal data under the DPA and disclosure to a member of the public would contravene any of the data protection principles in that Act (FOISA, s 38(1)(b) and (3)). The first data protection principle is that "personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless - (a) at least one of the conditions in Schedule 2 is met" (DPA, Sched 1, para 1).

As Lord Rodger of Earlsferry pointed out…

JUDGMENT

29 July 2013

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established