The volume of decisions being made by the Scottish Information
Commissioner is continuing to grow. It is now, almost a year since the
commencement of the Freedom of Information (Scotland) Act 2002 (FOISA),
that the true extent of FOI legislation is being realised. One
"casualty" of the new regime has been David McLetchie.
On 10 February 2005, Paul Hutcheon of the Sunday Herald asked the
Scottish Parliamentary Corporate Body ("SPCB") to provide him with a
record of David McLetchie's travel claims for the last three years. He
made a further request in May for the same information for the years
1999-2001. The SPCB provided travel claims, however, destinations of
taxi journeys were not given. It was argued that releasing the
information would contravene the Data Protection Act 1998 as the safety
and security of public figures could be compromised.
Mr Hutcheon complained to Kevin Dunion, the Scottish Information
Commissioner (SIC). The SPCB argued that the information was exempt
under two subsections: s38(1)(b) and s39(1). The first of these
provides that where the release of the information concerned would
breach the data protection principles, it is exempt from disclosure
under the Act. In this case it was the first data protection principle
that was considered: that personal data should be processed fairly and
lawfully. In this regard, the SIC decided that the question came down
to whether there would be risk to Mr McLetchie if the information were
released. Section 39(1) provides that information is exempt if its
release would endanger the mental or physical health or safety of the
individual concerned. So, again, risk was to be considered.
The SIC's main focus was on establishing whether or not a pattern
could emerge of Mr McLetchie's movements, which may put him in danger.
It was concluded that no pattern could be determined as the information
was reasonably old, personal circumstances had changed since many of
the journeys had been taken, no times were? given, and some dates could
not be supplied. It was further decided that the release of Mr
McLetchie's home address would not put him in any greater danger as
that information was freely available elsewhere. The final
consideration was based on the expectations which Mr McLetchie should
have regarding the release of the information . In this case, the
information held related to travel claims paid for out fo the public
purse and the Commissioner was of the view that FOISA 'has brought a
further expectation that information involving public expenditure
should be made publicly available.'
The SIC concluded that the release of the relevant information would
not endanger Mr McLetchie, therefore, would not breach sections
38(1)(b) or 39(1) as submitted by the SPCB.
The release of this information ultimately lead to Mr McLetchie's
resignation as leader of the Conservative Party in the Scottish
Parliament was the result.