The Scottish Court of Session (Inner House) on 23 January 2007 upheld the decision of the Scottish Information Commissioner (the Commissioner) by refusing an appeal by the Scottish Ministers against a decision of the Commissioner ordering them to release certain documents to the applicant,William Alexander (Scottish Ministers v Scottish Information Commissioner, The Times 29 January 2007).

Section 30 of the Freedom of Information (Scotland) Act 2002 provides that information is exempt information if its disclosure under that Act: '(a) would, or would be likely to, prejudice substantially the maintenance of the convention of the collective responsibility of the Scottish Ministers; (b) would, or would be likely to, inhibit substantially - (i) the free and frank provision of advice; or (ii) the free and frank exchange of views for the purposes of deliberation; or (c) would otherwise prejudice substantially, or be likely to prejudice substantially, the effective conduct of public affairs.'

The ministers had argued that the Commissioner erred in law in concluding that the engagement of these exemptions must necessarily involve a document by document assessment. They also submitted that it was necessary that Ministers (or other public persons) and their advisers should have a measure of 'private space', otherwise there were risks that disclosure would be made before views had properly matured and that the public record would be incomplete due to an increased tendency not to record advice given.

However, the Commissioner argued that a class approach was inappropriate to the exemptions provided for by section 30, which were content-based exemptions. And the Ministers could not exclude the Commissioner's jurisdiction by stamping a file with 'Advice to Ministers' or the like.

The Court found no error of law in the Commissioner's approach, namely that:

  1. Each case was to be assessed on the facts and circumstances of that case; and
  2. The proper approach was to assess whether the release of the advice or opinion contained within each document would be capable of having an inhibiting effect.

So a class approach to considering exemptions was inappropriate.

This case is reminiscent of a decision noticed issued by the Information Commission in England in January 2006 (Case Ref: FS50074589). This concerned a complaint that DfES had incorrectly applied exemptions in sections 35 and 40 of the Freedom of Information Act 2000 (FOIA) in refusing a request for all minutes of senior management meetings at DfES from June 2002 to June 2003 concerning the setting of school budgets in England. Section 35 provides an exemption in respect of (amongst other things) the formulation or development of government policy while section 40 concerns personal information. However, section 35 and relevant provisions of section 40 are subject to a 'public interest' test essentially (per section 2 of FOIA) that the public interest in maintaining the exclusion of the duty to confirm or deny or in maintaining the exemption outweighs the public interest in disclosing whether the public authority holds the information or in disclosing the information itself.

On the facts of the DfES case, the Commissioner found that although section 35 did apply to the majority of the information in question, the exemption could not be maintained in the public interest. The Commissioner said that he recognised that:

'. . . frank and honest debate is necessary for high quality policy formulation and that there is a public interest, in appropriate situations, in maintaining private space for discussion away from public scrutiny to formulate policy. But this is not to imply that all the records of all discussions relating to the formulation of policy must be kept confidential.'

And having reviewed the relevant information, the Commissioner was not satisfied that it was of a nature requiring protection since this simply records how the Department is properly responding to serious issues relating to school funding. However, 'its disclosure would not have any detrimental effect on that issue' and it does not follow 'that the release of this information would have any detrimental impact on the frankness and candour of future debates.' Nor should it 'follow that disclosure of these minutes would lead to less full or accurate record keeping.'

These cases may well have relevance to local government. For section 36 of the 2000 Act provides a qualified exemption for information if in the reasonable opinion of a qualified person disclosure under the 2000 Act would or would be likely (amongst other things) to inhibit the free and frank provision of advice, the free and frank exchange of views for the purposes of deliberation or would otherwise prejudice or be likely so to prejudice the effective conduct of public affairs. Whilst the 'qualified person' is a Minister of the Crown, section 36(5)(o) enables such minister to authorise either the authority or one of its officers or employees for these purposes. In England the qualified persons have been designated as the Authority's Monitoring Officer and Chief Executive as well as the Clerk to the Council and the Chairman of the Council. So a particular onus there to resist any siren voices of unjustifiable secrecy!

Perhaps one of the incidents of power is some instinctive reluctance to disclose information about its workings. However, as the above cases demonstrate, the tenor of the legislation in this area is disclosure unless there is objectively a good reason in the public interest not to. And the public interest is of course not always the same as the interests of those put in place to serve the public.

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