The Scottish Ministers v. Scottish Information Commissioner: Defining 'Holding' Information under FOISA

Introduction

The case of The Scottish Ministers Against the Scottish Information Commissioner ([2023] CSIH 46) presents a pivotal moment in the interpretation of the Freedom of Information (Scotland) Act 2002 (FOISA). The dispute centers on whether the Scottish Ministers "hold" certain information within their governmental systems, thereby obliging them to disclose it under FOISA. The appellants, the Scottish Ministers, challenged the decision of the Scottish Information Commissioner, who determined that they do hold the disputed information and are thus required to disclose it in response to a Freedom of Information (FOI) request made by Mr. Benjamin Harrop, a member of the public.

The crux of the matter lies in the management and control of information generated during an internal investigation led by Mr. James Hamilton into allegations against the former First Minister, Nicola Sturgeon MSP. The Scottish Ministers argue that information stored in a restricted-access area of their document management systems, used exclusively by Mr. Hamilton, does not equate to being "held" by them for FOISA purposes. Conversely, the Commissioner maintained that the information is indeed held by the Ministers, necessitating disclosure under the Act.

Summary of the Judgment

On December 6, 2023, the Inner House of the Court of Session, chaired by Lord Pentland, delivered its opinion on the appeal lodged by the Scottish Ministers against the Scottish Information Commissioner's decision. The court examined whether the Scottish Ministers held the information in question under FOISA, which would obligate them to disclose it upon request.

The court upheld the Commissioner’s decision, agreeing that the Scottish Ministers do hold the information for the purposes of FOISA. The court emphasized that the mere physical storage of information within governmental IT systems, regardless of access restrictions, establishes an appropriate connection between the information and the authority. Consequently, the Ministers are required to disclose the information unless a valid exemption applies.

The court also addressed the Ministers' contention that internal access restrictions effectively sever their connection to the information, deeming this argument unconvincing. The decision reaffirms the broad interpretation of "holding" information under FOISA, ensuring that public authorities maintain transparency and accountability.

Analysis

Precedents Cited

The judgment references several key precedents to support its interpretation of "holding" information under FOISA:

University of Newcastle upon Tyne v Information Commissioner [2011]: Established that factors such as the connection of the information to the authority’s functions, how it is held, and its creation circumstances determine if the authority "holds" the information.
Graham v Scottish Information Commissioner 2020 SC 199: Emphasized the importance of interpreting FOISA in the public interest, promoting transparency and accountability without unnecessary technical barriers.
Department of Health v Information Commissioner [2017] 1 WLR 3330: Highlighted that mere physical possession does not equate to holding information; an appropriate connection is essential.
Coppel, Information Rights: Provided authoritative commentary on the principles governing information holding and disclosure under FOISA.

These precedents collectively reinforce a broad and pragmatic approach to determining whether information is held by a public authority, prioritizing transparency over technical interpretations.

Legal Reasoning

The court's legal reasoning focused on the definition of "holding" information within the context of FOISA. The primary consideration was whether there was an appropriate connection between the information and the Scottish Ministers, as outlined in section 3(2) of FOISA.

The court evaluated several factors:

The origin and purpose of the information: Information was generated through an investigation instructed by the Ministers to assess potential breaches of the Scottish Ministerial Code.
Control and oversight: Despite access restrictions, the Ministers retained ultimate control over the information, including decisions on redactions and publication.
Connection to public functions: The investigation was integral to the Ministers' functions in ensuring compliance with the Ministerial Code.

The court dismissed the argument that internal access restrictions negate the Ministers' holding of the information, stating that the ability to impose and lift restrictions indicates ownership and accountability. It underscored that holding information is not solely about physical possession but about its use and connection to the authority's functions.

Furthermore, the court criticized the Ministers' attempt to rely on access restrictions as a means to evade disclosure under FOISA, highlighting that this approach undermines the Act’s objectives of transparency and openness.

Impact

This judgment has significant implications for public authorities in Scotland by:

Expanding Transparency: Reinforcing that public authorities cannot circumvent FOISA obligations through internal information management practices.
Clarifying 'Holding' Definition: Providing a clear and pragmatic interpretation of what constitutes holding information, emphasizing the authority's control and connection to the information.
Deterring Non-Disclosure Tactics: Dissuading public authorities from using technical or procedural barriers to limit information disclosure, thereby strengthening the FOISA regime.

Future FOI requests will benefit from this clarified definition, ensuring that information connected to public functions is accessible unless legitimately exempted.

Complex Concepts Simplified

Freedom of Information (Scotland) Act 2002 (FOISA)

FOISA provides the public with the right to access information held by Scottish public authorities, promoting transparency and accountability in government operations.

'Held' by a Public Authority

Under FOISA, information is considered "held" by a public authority if there is an appropriate connection between the information and the authority's functions. This determination goes beyond mere physical possession to include how the authority uses and controls the information.

Exemptions under FOISA

While FOISA promotes openness, certain exemptions allow public authorities to withhold information to protect public interests, such as the effective conduct of public affairs (Section 30(c)) or information already publicly accessible (Section 25(1)).

Appropriate Connection

This legal concept assesses whether the information is sufficiently related to the public authority's functions. Factors include the purpose for which the information was created, how it is managed, and the authority's control over it.

Conclusion

The judgment in The Scottish Ministers Against the Scottish Information Commissioner firmly establishes that public authorities in Scotland hold information connected to their functions, even if access to that information is restricted internally. By rejecting the Ministers' argument that internal access controls negate their holding of information, the court reinforced the ethos of transparency embedded within FOISA.

This decision underscores the judiciary's commitment to preventing public authorities from evading disclosure obligations through technical or procedural maneuvers. It clarifies that the definition of "holding" information is grounded in the relationship and control exerted by the authority over the information, rather than merely its physical storage location.

Consequently, public authorities must ensure that information related to their functions remains accessible to the public unless a valid exemption applies. This fosters an environment of accountability and openness, aligning with the legislative intent of FOISA to promote a transparent and responsible government.