In November and December last year, the Scottish Information Commissioner ("SIC") issued eight separate decisions concerning a series of requests made under the Freedom of Information (Scotland) Act 2002 ("FOISA") to all local authorities in Scotland.  The information requested related to incidents of complaints in the last 10 years against a specified company, the directors of that company, or any employee of the company, made to the local authorities' trading standards arm.

In his decisions, a number of which are now on appeal to the Court of Session, the SIC casts doubt on the ability of public authorities to rely on Part 9 of the Enterprise Act 2002 as being a statutory prohibition on disclosure in terms of the FOISA. His finding on this point meant that the local authorities were unable to rely on the exemption in section 26(1)(a) of the FOISA (which broadly replicates section 44(1)(a) of the Freedom of Information Act 2000 ("FOIA")), that permits information to be withheld on the basis that its disclosure is prohibited by another enactment.

Context

The Enterprise Act 2002 is a UK-wide statute that makes provision for competition law, the enforcement of consumer legislation and insolvency in the United Kingdom.  Part 9 restricts disclosure of certain "specified information", being information that comes to a public authority in connection with the exercise of its functions under the Enterprise Act itself or various other statues, for example the Fair Trading Act 1973, the Competition Act 1998 and the Consumer Protection Act 1987. 

For example, Part 9 of the Enterprise Act would cover information obtained by the Office of Fair Trading in relation to a cartel investigation, or by a local authority in relation to its trading standards functions.

In particular, sections 237(1) and (2) within Part 9 of the Enterprise Act, provide that specified information relating to the affairs of an individual or the business of an undertaking must not be disclosed during the lifetime of the individual or while the undertaking continues in existence, unless disclosure is permitted under Part 9 of the Enterprise Act. Section 245 of the Enterprise Act then makes it an offence to disclose information that falls within section 237.

However, section 237(6) of the Enterprise Act provides that Part 9 "does not affect any power or duty to disclose information which exists apart from this Part.”  Disclosure under the terms of this section 237(6) would amount to disclosure being permitted under Part 9 of the Enterprise Act. 

It was this provision that proved to be at the heart of the SIC's recent decisions.

The SIC's decisions

In the cases in question, the requester had asked the local authorities for information relating to complaints made to their respective trading standards arm about a specified company.  In responding to this request, the local authorities relied on Part 9 of the Enterprise Act as being a statutory prohibition on disclosure to withhold this information on the basis of the exemption in section 26(1)(a) of the FOISA.  The requester appealed these refusals to the SIC.

In considering these appeals, the SIC sought advice from Senior Counsel regarding whether Part 9 of the Enterprise Act did create a prohibition on disclosure within the meaning of section 26(1)(a) of FOISA.  In his opinion, counsel states:

"Part 1 of FOISA creates a right for a person to be given information by a Scottish public authority when he or she requests it…In my opinion, the creation of the right to be given information imposes a corresponding duty on Scottish public authorities to provide the requested information…The result is that since there is a duty owed by Scottish public authorities to provide information when requested to do so, that duty is not affected by Part 9 of EA…In my opinion, the clear and unambiguous terms of section 237(6) of FOISA do not allow the restrictions on disclosure contained in Part 9 of EA to be read as creating a prohibition on the disclosure of information for the purposes of section 26(1)(a) of FOISA."

The SIC also sought the views of Department of Trade and Industry, the Office of Fair Trading, LACORS, (the Local Authorities Coordinating Office on Regulatory Services), the Scottish Consumer Council and the UK Information Commissioner. Many of those consulted were strongly of the view that Part 9 did amount to a statutory prohibition on disclosure for the purposes of section 26(1)(a) of the FOISA.  For example, the Department of Trade and Industry, in their submission to the SIC (obtained by the authors from the SIC under the FOISA), states:

"We consider that following the provisions of FOISA through step by step leads to the conclusion that information subject to Part 9 of the Enterprise Act enjoys absolute exemption from disclosure.  This interpretation of FOISA is internally consistent and does not deprive section 237(6) Enterprise Act of meaning…"

Despite these contrary views, the SIC concluded that section 237(6) of the Enterprise Act was engaged and that the ban on disclosure under Part 9 of the Enterprise Act did not allow the local authorities to rely on the exemption in section 26(1)(a) of the FOISA.  In reaching this conclusion, he states:

"I understand the effect of this subsection [i.e. 237(6)] (intended or otherwise) to be to subordinate the restrictions on disclosure of specified information contained within Part 9 of the EA to any duty or power that exists through rules found somewhere other than in Part 9 of the EA. To interpret section 237(6) in this way is, I believe, to give it its ordinary and natural meaning. […]

Thus, if FOISA creates either a duty or a power to disclose information, it will override the provisions of Part 9 of the EA, and no prohibition on disclosure will exist where a request for information is made under FOISA and the information is not exempt under one of the exemptions contained in Part 2 of FOISA (or the information request does not have to be complied with because of rules set down in FOISA relating to, for example, vexatious or repeated requests)".

In articulating this test, the SIC appears to be taking the stance (which is directly contrary to that taken by the UK Information Commissioner, discussed below) that, in applying section 237(6) of the Enterprise Act, one must start from the position that section 26(1)(a) of the FOISA is not engaged.  

In a number of the SIC's decisions on this point, the local authorities claimed that the words “otherwise than under this Act” within section 26(1)(a) of FOISA (which states that "Information is exempt information if its disclosure by a Scottish public authority (otherwise than under this Act)…is prohibited by or under an enactment") meant that if disclosure were prohibited under any other Act, then the duty to disclose under FOISA would not take precedence over the statutory prohibition. The SIC again sought the advice of counsel on this point.  The SIC states:

"The advice I received from Senior Counsel is that the question turns on the meaning and effect of section 237(6) of the EA, rather than on the scope and terms of the applicable exempting provision contained in FOISA, in this case section 26(a). Thus, under section 237(6) of the EA, one is directed to consider whether there is a power or duty to disclose information that arises under rules found somewhere other than in Part 9 of the EA. If there is such a power or duty, then section 26(a) of FOISA does not apply because there is then no prohibition on disclosure under another enactment."

The SIC therefore concluded, in each decision, that the local authorities were wrong to rely on the exemption in section 26(1)(a) of the FOISA to withhold the information concerned.

The UK Information Commissioner's View

In contrast, the UK Information Commissioner has accepted – in recent cases involving the OFT and East Sussex County Council – that the restrictions on disclosure imposed by Part 9 of the Enterprise Act mean that section 44 of the FOIA (the UK equivalent of section 26(1)(a) of the FOISA) is engaged, irrespective of section 237(6) of the Enterprise Act. 

Crucially, the UK Information Commissioner decided that section 237(6) of the Enterprise Act was not engaged since the FOIA "does not impose a duty to disclose exempt information".  The UK Information Commissioner appears to have taken the view that, in considering the application of section 237(6) of the Enterprise Act; one first has to assume that section 44 is engaged (presumably on the basis of the general ban on disclosure under Part 9 of the Enterprise Act).  This means that the information in question is exempt information for the purposes of the UK Act.

The UK Information Commissioner's decision in respect of the East Sussex County Council (Reference: FS50082765) was decided subsequent to the SIC's decisions discussed above. The request at the heart of that decision is broadly similar to those in the SIC's decisions. In this case, the East Sussex County Council was asked for all correspondence and information: "(a) between and East Sussex County Council Trading Standards Service and [a named company], (b) received and/or concerning the [named company], (c) relating to any complaints received about the [named company]." 

East Sussex County Council refused this request on the basis that the information fell within the scope of Part 9 of the Enterprise Act and was therefore subject to a statutory prohibition on disclosure and was therefore exempt under section 44(1) of the FOIA. 

The UK Information Commissioner accepted that the exemption in section 44(1) of the FOIA was engaged and upheld the Council's refusal to disclose the information.

In reaching his conclusion, the UK Information Commissioner specifically considered the argument raised by the requester, which mirrored the position taken by the SIC, that, ‘restrictions on disclosure of information under s. 237 of the Enterprise Act do not apply when a request under FOI is made … because an FOI request imposes a duty … to release the requested information … FOI Act exists apart from Part 9 of the Enterprise Act’.

However, the UK Information Commissioner was of the view that whilst the FOIA provides access to information held by public authorities, "…it does not impose an unlimited duty of disclosure upon public authorities."   He states:

"If information falls within an exemption a public authority does not have to disclose it and section 44 makes clear that the Act does not override prohibitions found in other legislation. The Act must therefore be read in conjunction with Part 9 of the Enterprise Act 2002."

In addition, and again in contrast to the position taken by the SIC, the UK Information Commissioner considered that the words “otherwise than under this Act” in section 44 of the UK Act mean that:

"…when considering the application of this exemption the Act cannot be cited as the enactment imposing the obligation to disclose. Therefore, a public authority must consider whether disclosure would be prohibited by enactment if the Freedom of Information Act were not in force. If so, section 44 is engaged and the information is exempt."

In reaching his conclusion on this point, the UK Information Commissioner relied on reasoning of the Information Tribunal in The Corporate Officer of the House of Commons v. Information Commissioner and Norman Baker MP (EA/2006/0015 and 0016) in respect of the use of the same words - “otherwise than under this Act” – in section 40(3)(a) of the UK Act.

Therefore, the UK Information Commissioner held in each case that the public authority concerned had acted in accordance with UK Act in withholding the information on the basis of the general ban on disclosure under Part 9 of the Enterprise Act.

Conclusion

The decisions discussed above show that there is currently a clear conflict between the approach taken by the SIC and the UK Information Commissioner in relation to the operation of this exemption. 

Given that the Commissioners have generally adopted similar approaches to the application of the exemptions, this divergence is less that helpful. 

It is possible that the determination of the appeals by the Court of Session, or even the House of Lords, may resolve this conflict.  But with an initial hearing date not set until May 2008, this is likely to be some time away.

Kelly Harris is a solicitor specialising in public law with UK law firm Shepherd and Wedderburn
0131 473 5382

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