Ruling on Freedom of Information Act redefines the debate

The Freedom of Information (Scotland) Act is an important piece of legislation, affording the public a means to access data held by public authorities.

The Court of Session recently granted an appeal that has important implications.

It found in favour of Glasgow and Dundee city councils, but its significance is not restricted to local authorities.

Health boards, the Crofters Commission and indeed the Scottish Parliament, for instance, can all receive freedom of information (FOI) requests.

The case was the result of FOI requests made to the councils from solicitors acting for a private firm, whose business involves providing land and buildings information for a fee.

This information includes any securities over a property and, crucially, information relating to local authority notices – planning permissions, building controls and the like.

Even in a credit-crunched economy, searches related to property transactions are a tidy earner. Scottish councils often charge a fee for information, but the private firm wished to short-circuit the system by obtaining all relevant data held by the councils.

In turn, it could then sell on a package of information to third parties.

Despite various representations by the local authorities, the Scottish Information Commissioner ordered disclosure. The councils then successfully appealed.

Key issues included the court distinguishing "information" from "records", since the solicitors acting for the firm had requested specific copies of statutory notices.

The court ruled that the commissioner had been wrong not to allow public authorities the chance to provide the information contained in the statutory notices in a form other than a copy. The act is about free access to information, not free access to documents in a specified form.

A Scottish public authority must, so far as practicable, provide information in a format that the applicant would prefer, but where this is impractical and the information can be provided in another format, there is no need to comply with the expressed preference.

The court also clarified that information does not include unrecorded information. Only information that already exists can be sought.

Another issue was whether the information sought by the applicant could be obtained other than by a specific FOI request. There is an exception in the legislation that stipulates there may be no need to disclose information already made available, whether or not a fee is involved. In this case, the already existing schemes meant the information sought fell within the exception and could be obtained elsewhere.

There is much in the opinion of the court to keep in mind. Careful consideration must be given to any request before anything is divulged. In fact, public authorities should not be afraid of asking for more detail, or of rejecting an application that goes beyond the act's terms. The act does contain a 20-day deadline for compliance, but this should not hurry an authority into unnecessary disclosures.

The same advice applies to anyone working in tandem with the public sector, such as contractors or a project company in a public-private partnership arrangement.

While the act is a useful tool to access information, it is not a blunt instrument, and this judgment makes clear it should not be treated as such.

From a public authority's perspective, an incomplete understanding of the act could lead to inappropriate disclosure that could cause embarrassment or even a degree of self-incrimination.

Some regard this decision as damaging to the public's right to information, but the key lessons to take from the decision are to make appropriate FOI requests in an appropriate manner.

• Malcolm Combe is a solicitor with Tods Murray LLP.

Ruling on Freedom of Information Act redefines the debate (The Scotsman, 12 November 2009)