Decision 109/2010 Iain McKie and Mhairi McKie and the Scottish Ministers
Shirley McKie
Reference Numbers: 200701119 and 200701121
Decision Date: 28 June 2010
Summary
In 2005, Mr Iain McKie, father of Shirley McKie, made a request to the Scottish Ministers ("the Ministers") for copies of all of the information they held in relation to his daughter ("the requested information").The Ministers disclosed a large amount of information to Mr McKie, but withheld some information from him.Mr McKie subsequently applied to the Commissioner for a decision as to whether this information should have been disclosed to him, but, given that the cost to the Ministers of responding to Mr McKie's original request exceeded ?600, the Commissioner advised Mr McKie that the Ministers had been under no obligation to disclose information to him and that the Commissioner would not be able to order the Ministers to disclose any information to Mr McKie.
This led to Mr McKie withdrawing his application to the Commissioner and, in 2006, to Mr McKie and his wife, Mhairi McKie, each making a new request to the Ministers specifically for part of the information which had originally been withheld from Mr McKie.
In response, the Ministers disclosed some additional information, but withheld the remainder of the information under a number of exemptions. The Ministers primarily relied on the exemptions in section 36(1) of FOISA, which allows a public authority to withhold information which is subject to legal professional privilege, section 29(1)(a) of FOISA, which exempts information relating to the formulation or development of government policy and section 30(b)(i) and (ii), which exempts information if disclosure would, or would be likely to, inhibit substantially the free and frank provision of advice or exchange of views.
These particular exemptions are all subject to the public interest test.The Commissioner partially upheld the use of these exemptions and, where he did, considered the public interest arguments in favour of disclosure of the information against arguments in favour of maintaining the exemptions.He noted in particular the strong public interest arguments in favour of keeping information which is subject to legal professional privilege confidential and this led to him agreeing with the Ministers that all of the information which is subject to legal professional privilege is exempt from disclosure.However, he considered that, in other cases, the public interest favoured disclosure of the information which had been withheld under the exemptions in sections 29(1)(a) and (b) and 30(b)(i) and (ii).
Other exemptions relied on by the Ministers (not all of which are subject to the public interest test) are also considered in the decision.The attached Schedule of Documents specifies the information the Commissioner has ordered the Ministers to disclose.
Relevant statutory provisions and other sources
Freedom of Information (Scotland) Act 2002 (FOISA) sections 1(1) and (6) (General entitlement); 2(1) and (2)(a), (c) and (e)(ii) (Effect of exemptions); 25(1) (Information otherwise accessible); 29(1)(a) and (b) (Formulation of Scottish Administration policy etc.); 30(b) (Prejudice to effective conduct of public affairs); 33(1)(b) (Commercial interests and the economy); 35(1)(c) (Law enforcement); 36 (Confidentiality) and 38(1)(b), (2)(a)(i) and (b) and (5) (definitions of "the data protection principles", "data subject" and "personal data") (Personal information)
Data Protection Act 1998 (the DPA) section 1(1) (Basic interpretative conditions ? definition of "personal data"); 2(e), (g) and (h) (Sensitive personal data); schedule 1 (The data protection principles, Part I - The principles) (the first data protection principle), schedule 2 (Conditions relevant for purposes of the first principle: processing of any personal data) (condition 1 and 6(1)) and schedule 3 (Conditions relevant for purposes of the first principle: processing of sensitive personal data (condition 5)
The full text of each of the statutory provisions cited above is reproduced in the Appendix to this decision. The Appendix forms part of this decision, as does the attached Schedule of Documents.
Background
1.In January 1997, Marion Ross was found murdered at her home in Kilmarnock.A forensics team subsequently took fingerprints at the scene, as a result of which David Asbury was arrested for the murder of Miss Ross.
2.In the course of the investigation into Miss Ross's murder, a fingerprint was found on the doorframe of the bathroom in Miss Ross's home.It was identified, by officers of the Scottish Criminal Record Office (the SCRO), as belonging to Shirley McKie, who was at that time a serving police officer involved in the murder investigation.The fingerprint became known as "Y7".
3.David Asbury was subsequently convicted of the murder of Miss Ross.In the course of Mr Asbury's trial, Shirley McKie denied that the fingerprint was hers.
4.Following the murder trial, Shirley McKie was prosecuted for perjury, as a result of what she had said in her evidence at Mr Asbury's trial.
5.The evidence before the jury at Shirley McKie's trial included evidence from defence fingerprint experts that Y7 was not her fingerprint.The jury unanimously found her not guilty of perjury.
6.Following the not guilty verdict, the Head of the SCRO directed one of the original fingerprint experts to re-examine mark Y7.The expert reconfirmed his opinion that mark Y7 was a match for the left thumbprint of Shirley McKie.
7.In December 1999, BBC Scotland engaged four experts to examine Y7.All four concluded that the mark was not made by Shirley McKie.
8.In January 2000, fingerprint experts from Lothian and Borders Police wrote to Jim Wallace, then Minister for Justice, to highlight their concerns about the identification of mark Y7.
9.Later that month, the BBC programme, Frontline Scotland, broadcast a programme on the apparent misidentification of Shirley McKie's fingerprint.
10.In February 2000, the Executive Committee of the SCRO decided to ask Her Majesty's Chief Inspector of Constabulary (HMIC) to commission an independent assessment of mark Y7.The same month, the HMIC agreed to bring forward the formal inspection of the SCRO Fingerprint Bureau.
11.The initial findings of the inspection were publicly announced in June 2000.The inspection concluded that the SCRO Fingerprint Bureau was "not fully efficient and effective."In the Scottish Parliament, the Minister for Justice and Lord Advocate responded to HMIC's findings.The Minister apologised to Shirley McKie for the suffering she had endured.The Lord Advocate directed that all current and future SCRO identifications should be independently checked.This requirement lasted for 13 months.A total of 2,246 cases were examined and the identification of 6,894 marks containing 10,449 impressions were verified.In each case, the accuracy of the verification was confirmed.
12.In July 2000, James Mackay, then Deputy Chief Constable of Tayside Police, was appointed by the Association of Chief Police Officers in Scotland (ACPOS) to lead an investigation into the circumstances surrounding the fingerprint identification.The Lord Advocate also instructed William Gilchrist, then Regional Procurator Fiscal for North Strathclyde, to inquire into allegations of criminal misconduct surrounding the initial identification of mark Y7.The following month, the SCRO suspended the four people who had carried out the initial identification on a precautionary basis and a retrospective examination of historical cases involving these four was commenced.No errors were found.
13.In August 2000, David Asbury was granted interim liberation pending an appeal against his conviction for the murder of Miss Ross.His conviction was subsequently quashed in August 2002.The Crown did not oppose the appeal.
14.The following month, the HMIC report of the SCRO Fingerprint Bureau Primary Inspection was published.Sir William Rae, then Chief Constable of Dumfries and Galloway and President of ACPOS, met the McKie family and personally apologised for the trauma and distress caused.
15.In October 2000, the "Mackay Report" was submitted to the then Regional Procurator Fiscal for North Strathclyde.
16.In September 2001, the Lord Advocate confirmed that no criminal proceedings were to be taken against the four SCRO fingerprint officers.
17.In November 2001, Shirley McKie raised proceedings against the Scottish Ministers (and others, including the SCRO experts who had identified Y7 as her fingerprint) for damages.The action subsequently proceeded solely against the Ministers.
18.In March 2002, Strathclyde Joint Police Board convened a disciplinary committee to consider whether disciplinary action should be taken against the four SCRO officers.The committee decided to reinstate all four of the officers.
19.In February 2006, the proceedings raised by Shirley McKie against the Scottish Ministers was settled out of court for ?750,000 on the basis that, while there had been a misidentification of mark Y7, there had been no malicious intent on the part of the SCRO officers who had first identified the mark as being that of Shirley McKie.
20.This was not the end of the matter, however.In March 2008, the Scottish Government announced that an independent inquiry ("the Fingerprint Inquiry") was to be held by Sir Anthony Campbell under the Inquiries Act 2005[1].The remit of the Fingerprint Inquiry is to inquire into the steps taken to identify and verify the fingerprints associated with, and leading up to, the case of HM Advocate v McKie in 1999; to determine, in relation to the fingerprint Y7, the consequences of the steps taken, or not taken; and to report findings of fact and make recommendations as to what measures might now be introduced, beyond those that have already been introduced since 1999, to ensure that any shortcomings are avoided in the future.As at the time of writing, the Inquiry has finished hearing oral evidence and Sir Anthony is now considering the evidence and drafting his report.
21.This matter has had a significant impact on the personal lives of those involved, including Shirley McKie, the employees of the SCRO whose determinations have been subject to international scrutiny and, of course, the family of Miss Ross.However, the repercussions have gone beyond the purely personal and have called into question the systems of criminal prosecution in Scotland.
22.As Kenny MacAskill MSP, Justice Secretary, commented when announcing that the Inquiry would be held,
"The Shirley McKie case has cast a cloud over the individuals involved and has been a source of serious concern for the criminal justice system for the past decade."
23.The Commissioner is aware that the Fingerprint Inquiry may have access to some of the information which is the subject of the application to him by Mr and Mrs McKie and that it may decide to disclose some of that information.However, the Commissioner's role is entirely separate from that of the Fingerprint Inquiry and is to determine whether the Ministers were entitled to withhold information from Mr and Mrs McKie in line with the exemptions contained within FOISA.
24.Furthermore, whilst the chronology above is provided as background, the Commissioner wishes to make it clear that he cannot take into account matters (including the establishment of the Fingerprint Inquiry), which have taken place since the requests were made to the Ministers, as he must consider whether, as at the date of carrying out the review of the requests, i.e. as at December 2006, the Ministers were entitled to withhold the information.
The information requests
25.Mr McKie originally made an information request to the Ministers for all of the information they held about the Shirley McKie case shortly after FOISA came into force in 2005.In response to this request, the Scottish Ministers disclosed a large amount of information (Mr McKie has himself described being "snowed under by paper" as a result of the amount of information disclosed to him).However, the Ministers also withheld around 700 documents from Mr McKie.In 2006, Mr McKie made an application to the Commissioner, asking him to come to a decision as to whether the Ministers had been correct to withhold the information in these documents from him.After entering into correspondence with the Ministers, the Commissioner came to the conclusion that the cost of responding to his request exceeded ?600. In terms of section 12(1) of FOISA, a Scottish public authority is not obliged to comply with a request for information if the authority estimates that the cost of complying with the request would exceed ?600.As a consequence, the Commissioner did not have the power to consider whether the Ministers had been correct to withhold information from Mr McKie and was obliged to come to the view that the Ministers had been under no obligation to respond to Mr McKie's initial request.This led to Mr McKie withdrawing his original application to the Commissioner.
26.On 4 October 2006, Mr and Mrs McKie each made a request for part of the information which had originally been withheld from Mr McKie.The information which had been withheld was all contained in one file, file DDX 15/1/1.Mr McKie asked, by reference to a schedule which had previously been released to him, for the documents in Parts 001 to 004 of the file.Mrs McKie's request asked for documents from Parts 005 to 012 of the file.
27.The Ministers responded to the information requests at the start of November, within the timescales allowed by FOISA.They reconsidered the information which they had previously withheld, and disclosed some additional information (the information which was disclosed at this stage is marked on the Schedule of Documents as "released" and does not form part of the Commissioner's investigation).However, the Ministers upheld their original decision to withhold the remainder of the information under various exemptions in FOISA.
28.Shortly after this, Mr and Mrs McKie asked the Ministers to carry out a review of the way in which they had dealt with the information requests.Reviews were carried out in December 2006, as a result of which the Ministers decided not to disclose any additional information.
29.Mr McKie subsequently made a joint application to the Commissioner on his own behalf, and on behalf of Mrs McKie, stating that they were dissatisfied with the outcome of the Ministers' reviews and applying to the Commissioner for decisions in terms of section 47(1) of FOISA. These applications were subsequently validated in August 2007 after the Commissioner received from Mrs McKie a mandate which confirmed that she had authorised Mr McKie to act as her agent in the matter of this application.
30.The Commissioner conjoined the applications and carried out one investigation.
Investigation
31.On 17 August 2007, the Ministers were notified in writing that applications had been received from Mr and Mrs McKie and were asked to provide the Commissioner with the information which had been withheld from them.The Ministers responded with the information requested in September 2007 and the case was then allocated to an investigating officer.As can be seen from the Schedule of Documents, a large number of documents have been withheld from Mr and Mrs McKie, and in many cases a number of different exemptions have been applied to individual documents.This has led to a prolonged investigation.
32.After an initial reading of the information which had been withheld, the investigating officer contacted the Ministers on 14 January 2008, giving them an opportunity to provide comments on the applications (as required by section 49(3)(a) of FOISA) and asking them to respond to specific questions. The Ministers were asked to justify their use of exemptions in Part 2 of FOISA to withhold information from Mr and Mrs McKie.
33.The Ministers relied on a number of different exemptions to withhold the information from Mr and Mrs McKie.The exemptions relied on by the Ministers are as follows:
Section 25(1) ? information which is otherwise accessible
Section 29(1)(a) ? information relating to the formulation or development of government policy
Section 29(1)(b) ? information relating to Ministerial communications
Section 30(b)(i) ? information, the disclosure of which would, or would be likely to, inhibit substantially the free and frank provision of advice
Section 30(b)(ii) ? information the disclosure of which would, or would be likely to, inhibit substantially the free and frank exchange of views for the purposes of deliberation
Section 33(1)(b) ? information the disclosure of which would, or would be likely to, prejudice substantially commercial interests
Section 35(1)(c) ? information the disclosure of which would, or would be likely to, prejudice substantially the administration of justice
Section 36(1) ? information in respect of which a claim to confidentiality of communications could be maintained in legal proceedings ? in this case, the Ministers have argued that the information is subject to legal professional privilege
Section 36(2) ? information, the disclosure of which would constitute an actionable breach of confidence
Section 38(1)(b) ? personal data, the disclosure of which would breach any of the data protection principles ? in this case, the Ministers have argued that disclosure would breach the first data protection principle
34.The exemptions cited by the Ministers are a mixture of absolute exemptions (section 25, 36(2) and 38(1)(b)) and of exemptions which are subject to the public interest test contained in section 2(1)(b) of FOISA (sections 29(1)(a) and (b), 30(b)(i) and (ii), 33(1)(b), 35(1)(c) and 36(1)).Where an exemption is subject to the public interest test then, even if the Commissioner decides that the exemption applies, he must order the information to be disclosed if he is satisfied, in all the circumstances of the case, that the public interest in disclosing the information outweighs the public interest in maintaining the exemption.
35.Although matters have clearly moved on since the requests were made to the Ministers, as previously noted, the Commissioner must consider whether, as at the date of carrying out the review of the requests, i.e. as at December 2006, the Ministers were entitled to withhold the information.
Commissioner's analysis and findings
36.In coming to a decision, the Commissioner has considered all of the withheld information and submissions made to him, and is satisfied that no matter of relevance has been overlooked.
37.Although a wide range of exemptions have been applied, in some cases only a small number of documents have been withheld in relation to a particular exemption (for example, only one document has been withheld on the basis that it would be exempt from disclosure under sections 35(1)(c))).The vast majority of the information has been withheld under the exemptions contained in sections 29(1)(a), 30(b)(i) and (ii) and 36(1) of FOISA.
38.The information withheld from Mr and Mrs McKie appears to be, in the main, the information contained in the Ministers' litigation file.Given the specific issues surrounding the exemption in section 36(1) (legal professional privilege), which are addressed in detail below, the Commissioner considers it appropriate to address this exemption before going on to address the exemptions in sections 29(1)(a) (and (b)) and 30(b)(i) and (ii).
39.However, given that a small number of documents have been withheld on the basis of absolute exemptions (see above), the Commissioner will address these first.He will then address the small number of documents withheld under the exemptions in sections 33(1)(b) and 35(1)(c) of FOISA.Both of these exemptions are subject to the public interest test, but the public interest arguments are different from the public interest arguments put forward in relation to the exemptions in sections 29 and 30 (which focus on the ability of the Ministers to carry out their functions) and in section 36 (which focus on the public interest in the Ministers being entitled to communicate and seek legal advice, etc in private).
Section 25(1) Information which is otherwise accessible
40.A number of documents, or parts of documents, have been withheld under the exemption in section 25(1) of FOISA.This allows information to be withheld if the applicant can reasonably obtain the information other than by requesting it under section 1(1) of FOISA.It is, therefore, one of the small number of exemptions in FOISA which take account of the circumstances of the person who actually asked for the information.
41.The information which was withheld includes information which is available on the Scottish Parliament's website (such as reports and parliamentary questions) and parts of a talk given by Mr McKie.Where relevant, the Ministers have provided Mr and Mrs McKie with advice as to where the information could be found, e.g. through the provision of appropriate internet links.
42.Having considered each of the occasions on which the Ministers relied on this exemption, the Commissioner is satisfied that the information was indeed information which Mr and/or Mrs McKie could reasonably obtain other than by requesting it under section 1(1) of FOISA.He is therefore satisfied that the exemption applies to the information which has been withheld under section 25(1).
Section 36(2) ? information provided in confidence
43.Seven documents were withheld by the Ministers under this exemption.In the case of all but one of these documents, document 41 of Part 2 (old number 12c), the exemption in section 36(2) was the only exemption applied to the documents.
44.Six of the documents withheld under this exemption are letters written to the Ministers and five are marked either "in strict confidence", "strictly private and confidential" or "private and confidential".The seventh document is a statement for a disciplinary tribunal.
45.Under section 36(2) of FOISA, information is exempt information if (a) it was obtained by a Scottish public authority from another person (including another such authority) and (b) its disclosure by the authority that obtained the information to the public would constitute an actionable breach of confidence by that person or any other person.
46.The Commissioner has considered all of the documents withheld under this exemption and is satisfied that they were all obtained by the Ministers from another person.
47.Given that the Commissioner has accepted that the information was obtained by the Ministers from a third party, he must go on to consider whether disclosure of the information would constitute an actionable breach of confidence. There are three main requirements, all of which must usually be met before a claim for breach of confidentiality can be established.These are:
the information must have the necessary quality of confidence about it.It must not be generally accessible to the public already
the information must have been received by the Ministers in circumstances from which an obligation on them to maintain confidentiality could be inferred or is expressly provided for
there must be a disclosure or use of the information which is not authorised by the person who communicated the information, but which would cause detriment to that person
48.As noted above, the exemption in section 36(2) of FOISA is an absolute exemption, in that it is not subject to the public interest test set down in section 2(1)(b) of FOISA.However, the Commissioner considers that the word "actionable" in the exemption means that the basic requirements for a successful legal action must appear to be fulfilled.This means that, for the exemption to apply, it should not be reasonably expected that the action would be defeated by one of the established defences to an action for breach of confidence, such as the information subsequently becoming public knowledge or it being contrary to the public interest to withhold the information.
49.The law of confidence recognises that there is a strong public interest in ensuring that people respect confidences.In considering the "public interest defence" there is, unlike the public interest test set out in section 2(1)(b) of FOISA, no presumption in favour of disclosure.In certain circumstances, however, the public interest in maintaining confidences may be outweighed by the public interest in the disclosure of the information.
50.In their submissions, the Ministers consider that disclosure of any of the documents withheld under section 36(2) would constitute a breach of confidence actionable by the person who provided them with the document.They have commented on the fact that the majority of the documents are marked "private and confidential" (or equivalent) and that in the case of the documents which were not so marked, it can reasonably be deduced that the information was supplied to the Ministers on a confidential basis.
51.The Ministers argue that the information has the necessary quality of confidence and that it has been communicated in circumstances importing an obligation of confidence.They comment that there does not appear to be any applicable or available defence to an action for breach of confidence in these circumstances and, as a result, consider the information to be exempt under section 36(2).
52.The Ministers have also commented that it is "self-evident" that organisations and individuals would be much less likely to provide them with similar information in future if they could not be confident that the information would not be disclosed to the public.The Commissioner considers that this argument will only weight in limited circumstances.
53.Document 41 of Part 2 is a letter from Strathclyde Police to the Ministers, discussing the Defences which had been lodged in the Court of Session by the Chief Constable of Strathclyde Police in relation to the action raised by Shirley McKie.The document also includes a copy of the Defences.The letter is marked "strictly private and confidential".
54.The Commissioner accepts that when the letter was sent to the Ministers in 2001, it had the necessary quality of confidence.Given that the letter reflects legal advice on the defences, the Commissioner is also satisfied, even without the private and confidential marking, that the information was obtained by the Ministers in circumstances from which an obligation of confidentiality could be inferred; the Commissioner accepts that the information was shared with the Ministers on the understanding that it would not be disclosed further.The Commissioner also considers that disclosure of the information would be unauthorised and would cause detriment, either to Strathclyde Police because of the effect which disclosure would have on obtaining legal advice in the future (see the discussion on the disclosure of legal advice below and, in particular, the arguments in favour of maintaining the exemption in section 36(1) on public interest grounds) or to the Ministers, on the basis that such information might not be provided to them in the future.
55.As such, the Commissioner is satisfied that the information contained in this document is exempt from disclosure under section 36(2) of FOISA.
56.Document 123 of Part 4 is a letter from the Director of the SCRO to the Ministers.Supporters of Shirley McKie had posted an entry on the Internet inviting fingerprint experts to forward their views of the McKie fingerprint identification to the Chief Constable of Grampian Police and to the Minister for Justice.This letter forwarded copies of this information to the Ministers.
57.The Commissioner does not believe that the information in question has the necessary quality of confidence for the exemption in section 36(2) to apply.In his view, there is nothing in the covering letter to suggest that the letter was received by the Ministers in circumstances from which an obligation on the Ministers to maintain confidentiality could be inferred, and there is nothing in the contents of the letter to suggest that it has the necessary quality of confidence.
58.Similarly, there is no suggestion from any of the experts providing their views that they expect their views to remain confidential.Indeed, in responding to a "public call" for comments, it could be argued that they intended their views to be put into the public domain.The views of most of the experts on the Shirley McKie case are published on the Internet and many of the experts were involved in the Parliamentary Inquiry. As a result, the Commissioner finds that the information is not exempt under section 36(2) of FOISA.
59.Documents 146 of Part 4, 1 of Part 5 and 24 of Part 5 are copies of the same letter from the Deputy Head of the SCRO to the First Minister dated 7 May 2002, although the versions in Part 5 also contain a copy of a much longer letter sent by the Deputy Head of the SCRO to his own MSP.(Document 24 of Part 5 also contains an acknowledgement from the First Minister to the Deputy Head of the SCRO.)
60.The Commissioner has considered carefully whether these letters should be disclosed.In the past, he has found that correspondence from a member of the public to their MSP should be withheld on the basis that it is exempt under section 36(2) of FOISA, amongst other exemptions (indeed, he has come to the same conclusion in relation other information withheld from Mr and Mrs McKie ? see below).However, in this case, the Commissioner considers that the letter from the Deputy Head of the SCRO to his MSP is written by him in his professional capacity.He uses his professional title in the letter.It is unclear from the copies of the letters held by the Ministers whether this letter was sent on SCRO-headed paper, but what is clear is that the address (and fax number) from which the letters were sent is that of the SCRO.The letters directly concern the Deputy Head of the SCRO's professional role and it is clear that he discussed his intention to write the letter with his superior.
61.As such, the Commissioner considers that he is entitled to treat both the letter to the First Minister and the letter to the MSP as letters written in the author's professional capacity (as opposed to in his capacity as a member of the public or as a private individual, although he notes that the Ministers consider the letter to have been written in a personal capacity).
62.Both letters are headed "in strict confidence."Although the Commissioner does not accept that the use of a marking such as "in strict confidence" in a document automatically means that the document was disclosed in circumstances which imposed an obligation on the authority to maintain confidence, he will take this fact into account when considering the contents of the letters.
63.In the letter to the First Minister (to which the letter written to the Deputy Head's MSP is attached), the Deputy Head of the SCRO puts forward the views of the SCRO as to what has happened in respect of Shirley McKie.The letters are written in a direct manner, freely and frankly, and the Commissioner considers that they were received by the Ministers in circumstances from which an obligation on the authority to maintain confidentiality could be inferred.
64.However, the letter written to the MSP was circulated by the author to a number of senior public figures.Given that the letter to the MSP was widely circulated, the Commissioner does not consider that the letter has the necessary quality of confidence and that, as a consequence, the letter is not exempt under section 36(2) of FOISA.
65.In any event, even if the letter did have the necessary quality of confidence, the Commissioner considers that there is a public interest justification for disclosure of the information, given the importance of the subject matter (which concerns the public confidence in the Scottish fingerprint service), the scale of public disquiet following the Shirley McKie case and the subsequent compensation payment made by the Ministers to Shirley McKie.
66.The covering letter to the First Minister was not widely circulated by the author, at least to the knowledge of the Commissioner.The Commissioner is therefore willing to accept that it had the necessary quality of confidence.He does not accept, however, that disclosure of the letter would cause detriment to the Deputy Head of the SCRO.His views on the case have been well reported and it is clear to the Commissioner that his views in the letter were expressed as Deputy Head of the SCRO and not in a personal capacity.
67.If the Commissioner is wrong on this point, he considers that there is a public interest justification for disclosure of the information, for the reasons set out in paragraph 65 above.
68.The Commissioner therefore finds that the letters in question are not exempt under section 36(2) and should be disclosed.(The Commissioner notes that the Ministers did not apply the exemption in section 38(1)(b) of FOISA to the versions of the letter which appear in documents 146 of Part 4 and 1 of Part 5, although the exemption has been cited in relation to the document 24 of Part 5.In the circumstances, the Commissioner has assumed that the Ministers have relied on the exemption in section 38(1)(b) to withhold the acknowledgement from the First Minister alone and he will address this below.)
69.Document 451 of Part 11 is a statement on behalf of Peter Swann in relation to a disciplinary tribunal of the then Council for the Registration of Forensic Practitioners.There is no covering letter with the document, but it appears that it was provided to the Ministers by Mr Swann's solicitor.
70.It is therefore unclear, on the face of the document, whether the statement was provided to the Ministers in confidence, although the Ministers have submitted, as noted above, that it was provided to them in circumstances from which an obligation to maintain confidentiality could be inferred.
71.However, the Commissioner notes that the solicitor for Mr Swann subsequently made public information about Mr Swann and this disciplinary tribunal.The Commissioner also notes that much of the information contained in this statement appears online in the Official Report of the Scottish Parliament as the matter was discussed by the Justice 1 Committee.
72.As a consequence, even if the statement had been provided to the Ministers in confidence (which the Commissioner does not accept), he is satisfied that the information did not, at the time the Ministers carried out the review, have the necessary quality of confidence.He therefore does not consider that the statement is exempt under section 36(2) of FOISA.
73.Documents 466 of Part 11 (old number 75) and 485 of Part 12 (old number 14) are letters from Mr Swann's solicitor to Cathy Jamieson, then Minister for Justice, dated December 2004 and January 2005, respectively.Both letters are marked "private and confidential: addressee only".
74.The letters formally notify the Ministers about the disciplinary tribunal to be held in June 2005.As with the statement referred to above, even if the letters were provided to the Ministers in confidence, given that the information about the disciplinary tribunal was subsequently put into the public domain by the solicitor, the Commissioner does not consider that the letters have the necessary quality of confidence.As a result, he does not consider the letters to be exempt under section 36(2) of FOISA.
Section 38(1)(b) ? personal data
75.The Ministers have relied on the exemption in section 38(1)(b) (as read with either section 38(2)(a)(i) or (b) of FOISA) to withhold a small number of names and addresses from Mr and Mrs McKie.
76.In order to be able to rely on this exemption, the information withheld must, first of all, be personal data."Personal data" is defined in section 1(1) of the DPA as data which relate to a living individual who can be identified from those data, or from those data and other information which is in the possession of, or is likely to come into the possession of, the data controller (in this case, the data controller is the Scottish Ministers).The full definition of "personal data" is set out in the Appendix.
77.Personal data may be withheld if its disclosure to a member of the public under FOISA would contravene any of the data protection principles.In this case, the Ministers have argued that disclosure of the personal data would breach the first data protection principle.The first data protection principle requires that personal data shall be processed (here, disclosed in response to an information request made under section 1(1) of FOISA) fairly and lawfully.It also requires that information shall not be processed unless at least one of the conditions in schedule 2 of the DPA is met and, in the case of sensitive personal data, at least one of the conditions in schedule 3 of the DPA is also met.
78.The Ministers have commented that, primarily, the personal data which they have redacted are the names and addresses (including email addresses) of individuals who have corresponded with the Government about the Shirley McKie case.The Ministers consider that the willingness of individuals to make representations to government, particularly in cases of such sensitivity and controversy, could be compromised if there were an expectation that it would become public knowledge (a) that they made representations, (b) what those representations were and (c) what their contact details were.The Ministers consider that this would not be in the interests of good government.The Commissioner notes these arguments, but considers that, while they may point to those making the representations not expecting their personal data to be disclosed (and may lead to the disclosure being unfair), he considers that the argument about the disclosure not being in the interests of good government is irrelevant to the section 38(1)(b) in this case.
79.However, the Ministers also submitted that the disclosure of the information would breach the first data protection principle on the basis that there are no conditions in schedule 2 which would permit the personal data to be disclosed.The Ministers referred specifically to condition 6 of schedule 2, and argued that the processing of the data in this case is not necessary for the purposes of any legitimate interest and, even if it were, the processing would be prejudicial to the rights and freedoms or legitimate interests of the particular individuals (i.e. the data subjects) involved.
80.In considering whether the exemption in section 38(1)(b) applies, the Commissioner must look at two separate matters, i.e. whether the information is personal data and, if so, whether disclosure would breach the first data protection principle.
81.As noted above, this exemption was applied to only a small amount of information in the documents withheld from Mr and Mrs McKie.
82.Having considered the information which has been withheld under this exemption, the Commissioner is satisfied that the information is personal data for the purposes of section 1(1) of the DPA.The information identifies living individuals and clearly relates to them.
83.The Commissioner considers that the personal data which has been withheld can be split into the following categories: (i) names and contact details of members of the public; (ii) names, experience and contact details of professionals, such as fingerprint experts; (iii) correspondence by MSPs acting on behalf of SCRO officers, (iv) details about the employment (and disciplinary action being taken against) the SCRO officers; (v) correspondence which followed on from the letter sent by the Deputy Head of the SCRO referred when considering the section 36(2) exemption above and (vi) sensitive personal data.
Names and contact details of members of the public
84.As the Ministers have noted, Mr and Mrs McKie have previously been provided with correspondence to and from members of the public who have written to the Ministers to express concern at the issues being raised by the Shirley McKie case, but with names and contact details omitted.There is nothing to suggest that the members of the public had any expectation that their names or contact details would be put into the public domain.The people in question express concern about the case, but are not "experts" in the field.The Commissioner finds that disclosure of the names and contact details of the members of the public would be unfair.He must therefore find that disclosure would breach the first data protection principle and that this personal data is exempt from disclosure under section 38(1)(b) of FOISA.
Names, experience and contact details of professionals
85.However, the Commissioner views the correspondence which has been received from various professionals in a different light.The professionals make reference to their professional qualifications and experience.A search also highlights that the majority of the professionals in question have posted their views on the McKie case on the Internet (and many were involved in the Parliamentary Inquiry).As such, the Commissioner does not consider that it would be unfair for the names or experience (where this has been redacted) of these professionals to be disclosed.However, he agrees that it would be unfair for the professionals' direct contact details to be disclosed under FOISA on the basis that they would have no expectation that this information would be disclosed into the public domain.(The Commissioner has come to the same conclusion in relation to the home email address of the Chair of the Scrutiny Committee, withheld from document 110 of Part 4 for the same reasons.)
86.Given that the Commissioner considers that the disclosure of the names and, where relevant, the experience, of the professionals in question would be fair, he must go on to consider whether there are any conditions in schedule 2 which would permit the names to be disclosed.
87.As noted above, the Ministers specifically considered whether condition 6(1) of schedule 2 would permit the names and experience of the professionals to be disclosed, but came to the conclusion that it would not, on the basis that the processing (i.e. disclosure) is not necessary for any legitimate interests.
88.The Commissioner has considered all of the conditions in schedule 2, and shares the view that condition 6(1) of schedule 2 is the only condition which might be considered to apply in this case.
89.Condition 6(1) allows personal data to be processed if the processing is necessary for the purposes of legitimate interests pursued by the third party or parties to whom the data are disclosed, except where the processing is unwarranted in any particular case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject.
90.There are, therefore, a number of different tests which must be satisfied before condition 6 can be met. These are:
Is there a legitimate interest in obtaining this personal data?
If yes, is the disclosure necessary to achieve these legitimate aims? In other words, is the disclosure proportionate as a means, and fairly balanced as to ends, or could these legitimate aims be achieved by means which interfere less with the privacy of the professionals in question?
Even if the processing is necessary for the legitimate purposes of the applicants, would the disclosure nevertheless cause unwarranted prejudice to the rights and freedoms or legitimate interests of the professionals?This will involve a balancing exercise between the legitimate interests of the applicants (and of the public) and those of the professionals. Only if (or to the extent that) the legitimate interests of the applicants (or the public) outweigh those of the professionals can the names and details of their experience be disclosed.
91.The Commissioner is satisfied, in the circumstances of this case, that there is a legitimate interest in knowing what comments various professionals have expressed to the Ministers, particularly since the comments are largely based on the interpretation of the fingerprint in question, which goes to the heart of the Shirley McKie case.
92.The Commissioner must now go on to consider whether disclosure is necessary for the legitimate interests of Mr and/or Mrs McKie (and of the public) and, in doing so, he must consider whether these interests might reasonably be met by alternative means.
93.The Commissioner has concluded that disclosure is necessary, on the basis that the legitimate interests he has identified cannot be satisfied in any other way.Even where the views of the experts are available on the Internet, it is difficult to locate without knowing the names of those individuals.
94.The Commissioner must also consider whether disclosure would nevertheless cause unwarranted prejudice to the rights, freedoms and legitimate interests of the individual professionals concerned.This will involve a balancing exercise between the legitimate interests of Mr and Mrs McKie (and of the public) and those of the professionals. Only if the legitimate interests of Mr and Mrs McKie (and of the public) outweigh those of the professionals can the information be disclosed without breaching the first data protection principle.
95.The Commissioner's guidance on the interpretation of the exemptions in section 38(1) sets out a number of factors which he considers should be taken into account in carrying out this balancing exercise. These include:
whether the information relates to the individual's public life (such as their work as a public official or employee) or their private life (such as their home, family, social life or finances)
the potential harm or distress that may be caused by the disclosure
whether the individual has objected to the disclosure
the reasonable expectations of the individuals as to whether the information would be disclosed
96.The Commissioner considers that the information in question relates to the professionals' public life as opposed to their private life, even if they have used their home emails addresses rather than those of their place of work (as noted above, the Commissioner has already determined that it would be unfair to disclose direct contact details).In any event, the Commissioner does not consider that the disclosure of the names or details of their experience would cause any harm or distress to the individuals in question.There is evidence that most of the professionals have posted comments about the McKie case on the Internet and the Commissioner therefore takes from that that they are content to be connected to the Shirley McKie case.Even where no such posting has taken place, it is clear that the experts in question wished to use their specific experience and expertise to effect a change in the way the Ministers were responding to the issue.
97.Furthermore, where individuals have drawn attention to their professional role and expertise,as lending weight to representations made by them to decision makers, it should reasonably be expected that they will be identified as having influenced or having sought to influence the views or conclusions of those decision makers.
98.Having balanced the legitimate interests of Mr and Mrs McKie (and of the public) with those of the professionals involved, the Commissioner is satisfied that, in this case, any prejudice to the rights, freedoms and legitimate interests of the data subjects is outweighed by the legitimate interests of Mr and Mrs McKie (and of the public).As such, he has concluded that disclosure would be in line with condition 6 of schedule 2.
99.The Ministers advised the Commissioner that they did not consider that disclosure would be unlawful (although, clearly, if a disclosure is unfair, disclosure will breach the first data protection principle and will, as a consequence, be unlawful).The Commissioner has considered the question of lawfulness separately and does not consider that disclosure would be unlawful.Given that he has already found that the disclosure of the names would not be unfair and that disclosure would be permitted by one of the conditions contained in schedule 2, he finds that the disclosure of the names is permitted by the first data protection principle and is not exempt under section 38(1)(b) of FOISA.
Correspondence by MSPs acting on behalf of SCRO officers
100.Some of the information which has been withheld from Mr and Mrs McKie is contained in representations made by MSPs to one or more of the Scottish Ministers on behalf of the SCRO officers who are closely involved in the case.
101.The Commissioner considers that there is a legitimate interest in the disclosure of this personal data, given the high profile of the Shirley McKie case and the role played by the data subjects in the case.He also considers that disclosure of the correspondence is necessary to achieve these legitimate interests.
102.He considers that disclosure of the information would cause unwarranted prejudice to the rights, freedoms and legitimate interests of the SCRO officers, given that he is satisfied that they made such representations to their MSPs in a personal capacity.In the circumstances, he considers that it would have been reasonable for them to expect that the representations which their MSP made on their behalf, as constituents, would not be disclosed into the public domain.
103.As such, he finds that there are no conditions in schedule 2 which would allow the information in this correspondence to be disclosed (this includes the correspondence from the MSPs in question as well as the responses from the Ministers).He therefore finds that disclosure would breach the first data protection principle and that the information is exempt from disclosure under section 38(1)(b) of FOISA.
Employment (and disciplinary action being taken against) the SCRO officers
104.The Ministers have withheld information relating to the employment situation of the SCRO officers involved in identifying the fingerprint in question as that of Shirley McKie's.
105.The Commissioner considers that it would be fair to disclose the majority of this information under FOISA, but not information which relates to mattes such as their previous employment and dates of promotion.As such, he considers this information to be exempt under section 38(1)(b) of FOISA.
106.As noted above, the Ministers have not made any specific arguments as to the disclosure of the personal data being unlawful (except insofar as disclosing information in breach of the first data protection principle would in itself be unlawful).As a result, the Commissioner will go on to consider whether condition 6 of schedule 2 can be met.The tests involved in considering condition 6 are set out above.
107.The Commissioner is satisfied, in the circumstances of this case, that there is a legitimate interest in the disclosure of the information in question, given the role which the SCRO officers have played in the case, and in knowing what steps were taken in relation to their employment.
108.The Commissioner must now go on to consider whether disclosure is necessary for the legitimate interests of Mr and/or Mrs McKie (and of the public) and, in doing so, he must consider whether these interests might reasonably be met by alternative means.
109.The Commissioner has concluded that disclosure is necessary, on the basis that the legitimate interests in relation to the information in question which he has identified cannot be satisfied in any other way.
110.In this case, the Commissioner considers that the disclosure of the information would not cause unwarranted prejudice to the rights, freedoms and legitimate interests of the constituents.While it is very unusual for him to order the disclosure of information which relates to disciplinary action being taken against an individual, the Commissioner has taken account of the amount of information about the action taken against the officers in the public domain and the high profile of this case.
Correspondence following on from the letter from the Deputy Director of the SCRO
111.The Ministers have also relied on the exemption in section 38(1)(b) to withhold correspondence between the First Minister and the Deputy Head of the SCRO and between the Deputy First Minister and the Deputy Head's MSP in relation to matters raised by the Deputy Head.
112.The Commissioner considers, given the seniority of the Deputy Head of the SCRO, that the disclosure of these letters would be fair.As noted earlier in the decision, the Commissioner considers that the original letter from the Deputy Head of the SCRO in which he sets out his views in some detail was written on a professional as opposed to personal basis.
113.Given that the Ministers have not argued that disclosure of personal data would be unlawful (except insofar that disclosure in breach of the first data protection principle would in itself be unlawful), the Commissioner will go on to consider whether condition 6 of schedule 2 can be met.The tests for condition 6 are set out above.
114.The Commissioner is satisfied, in the circumstances of this case, that there is a legitimate interest in the disclosure of the information in question, given the role which the Deputy Head of the SCRO played in the Shirley McKie case and the interest in knowing his views on the identification of the fingerprint.
115.The Commissioner must now go on to consider whether disclosure is necessary for the legitimate interests of Mr and/or Mrs McKie (and of the public) and, in doing so, he must consider whether these interests might reasonably be met by alternative means.
116.The Commissioner has concluded that disclosure is necessary, on the basis that the legitimate interests he has identified cannot be satisfied in any other way.The information contained in these documents cannot be accessed in any other way and there is a legitimate interest in knowing how the Ministers reacted to the correspondence from the Deputy Head of the SCRO.
117.In this case, the Commissioner considers that the disclosure of the information would not cause unwarranted prejudice to the rights, freedoms and legitimate interests of the Deputy Head of the SCRO, given that the contents of the correspondence are factual and are not critical of the Deputy Head.
118.As such, the Commissioner considers that the information contained in this correspondence is not exempt from disclosure under section 38(1)(b) of FOISA.
Sensitive personal data
119.The final category of personal data which has been withheld by the Ministers is information which falls within the definition of sensitive personal data in section 2(g) and (h) of the DPA.Only a very small percentage of the information which has been withheld is sensitive personal data and it relates to criminal action taken in relation to a person not directly connected to the Shirley McKie case.
120.The Ministers have not made any additional arguments as to why this information should not be disclosed, but the Commissioner considers it appropriate to treat it separately.As noted above, in order to allow the processing of sensitive personal data to comply with the first data protection principle, the disclosure must be fair and lawful and there must be a condition in each of schedules 2 and 3 which would allow the information to be processed.
121.Given the restrictive nature of the conditions set out in schedule 3, the Commissioner considered these first, but has been unable to find any condition in schedule 3 which would permit the processing of the sensitive personal data.
122.As a result, he has come to the conclusion that the processing of the sensitive personal data in question would breach the first data protection principle and, accordingly, that it is exempt from disclosure under section 38(1)(b) of FOISA.
123.There is, in addition, a small amount of sensitive personal data contained in the documents relating to the health of Shirley McKie (see section 2(e) of the DPA).The Ministers have not specifically withheld this information on the basis that it is sensitive personal data, the disclosure of which would breach the first data protection principle.However, the Commissioner notes in passing that this information has been made public as a result of steps deliberately taken by Shirley McKie and that, as a result, he considers that disclosure of the information is permitted by condition 5 of schedule 3 and condition 6 of schedule 2 and that, in the circumstances, the disclosure is otherwise fair and lawful.He therefore considers that the information is not exempt under section 38(1)(b) of FOISA.
Exemptions subject to public interest test
124.The remaining exemptions are all subject to the public interest test set down in section 2(1)(b) of FOISA.
125.The Ministers have provided the Commissioner with public interest arguments in relation to each of the exemptions they have applied, and these are addressed in more detail below.However, in their submissions to the Commissioner, the Ministers also commented more generally on their approach to the public interest issues raised by this case.
126.The Ministers advised the Commissioner that, in responding to Mr and Mrs McKie's information requests, they have been very conscious of the public interest in the issues associated with it and of the public interest in ensuring that the debate is well informed.The Ministers advised the Commissioner that, in responding to the requests, they have considered whether disclosure of information would add to knowledge and understanding of the case, taking into account the substantial amount of information which has already been disclosed by the Ministers (e.g. in response to requests under FOISA and the Parliamentary Inquiry into related matters).
127.The Ministers also commented that they have considered whether documents which contain information which would not add substantively to the case should be disclosed for the purpose of demonstrating that nothing of significance was being withheld, given the "allegations" which have been associated with this case.The Ministers concluded, however, that it would not be in the public interest to adopt a policy of releasing, simply for this purpose, documents that would otherwise be withheld, on the basis that such an approach would effectively mean that, for future cases, applicants might feel that their chance of accessing information would be enhanced if, regardless of the reality of the case, similar allegations were to be made.
128.The Commissioner will take account of the general approach taken by the Ministers when considering the public interest test in relation to each of the following exemptions, where relevant.
Section 33(1)(b) Substantial prejudice to commercial interests
129.In terms of section 33(1)(b) of FOISA, information is exempt information if its disclosure under FOISA would, or would be likely to, prejudice substantially the commercial interests of any person (including a Scottish public authority).
130.The Ministers have specifically relied on this exemption to withhold two documents which relate to internal accounting.
131.The Commissioner considers that there is information contained in these documents which does not fall within the scope of Mr and Mrs McKie's requests, given that it relates to matters which are entirely unconnected with the Shirley McKie case.He does not require this information to be disclosed.
132.The Commissioner has considered the information which falls within the scope of the request and takes the view that the disclosure of some of the information, such as that contained in the internal accounting forms used by the Ministers, which contain details of cost centres and account numbers, etc., would, or would be likely to, prejudice substantially the commercial interests of the Ministers, on the basis that it could undermine their internal accounting practices and increase the likelihood of fraud.
133.The documents also contain invoices from Faculty Services Ltd.Although the Ministers have withheld these under the exemption in section 33(1)(b), at least in relation to the two documents in question, he considers that they are more appropriately dealt with under the exemption contained in section 36(1) (see the discussion on such invoices below).As such, he will not consider these here, but will consider them later.
134.The documents also contain details of payments made to counsel.The Commissioner does not accept that disclosure of this information would, or would be likely to, prejudice substantially either the commercial interests of the Ministers or of counsel, given that it is not clear from the invoices the level of work being carried out by counsel or the hourly cost to the Ministers of advice from counsel.
135.Finally, the documents contain information about court fees.Given that fees are fixed by the Court of Session, the Commissioner does not consider that disclosure of this information would, or would be likely to, prejudice substantially the Ministers' commercial interests.
136.Given that the Commissioner has found that the information in the internal accounting forms is exempt under section 33(1)(b) of FOISA, he must go on to consider the public interest test contained in section 2(1)(b) of FOISA.
137.The Commissioner considers that there is little, if any, public interest in the disclosure of this information; the information would not add to the public understanding of the Shirley McKie case.However, the Commissioner finds that there is a public interest in maintaining the exemption, given the possibility of undermining the Ministers' internal accounting practices.On balance, therefore, he finds that the public interest in disclosing this information is outweighed by the public interest in maintaining the exemption.
138.In the Schedule of Documents, there are a number of other documents which also relate to internal accounting, known by names such as "SEAS Journal Request Forms."The Commissioner notes, from the Schedule provided to him by the Ministers, that information in some of these documents has been withheld under section 36(1) and that, in other cases, the Ministers have disclosed to Mr and Mrs McKie the amount of the court fees contained in the invoice and that it is not clear what, if any, exemptions have been used to withhold the remainder of the information appearing in these documents.The Commissioner considers that the same approach should be taken for these documents, as for the documents referred to above.This means that the Ministers are entitled to withhold internal accounting forms (on the basis that they are exempt under section 33(1)(b) of FOISA), information which does not relate to the Shirley McKie case and invoices from Faculty Services Ltd (on the basis that they are exempt under section 36(1) of FOISA ? see below).However, the Ministers should, where they have not already done so, disclose to Mr and Mrs McKie the amounts paid in relation to court fees and the amounts paid to counsel.
Section 35(1)(c) Substantial prejudice to administration of justice
139.Under section 35(1)(c), information is exempt information if its disclosure would, or would be likely to, prejudice substantially the administration of justice.The term "administration of justice" is not defined in FOISA, but the Commissioner considers that it refers widely to matters relating to the working of the courts and of tribunals.Examples might include principles such as the right to a fair trial and ensuring that individuals have access to justice.
140.The exemption is subject to the public interest test required by section 2(1)(b) of FOISA.
141.The Ministers applied this particular exemption to only one document on the basis that the disclosure of the information in the document would indicate how the Crown deals with expert witnesses against whom allegations have been made.Although the information in the document considers the potential future role of certain individuals, the Ministers' concerns go beyond these individuals; they are concerned that the information could be used by defence agents in future trials to undermine the evidence given by the witnesses, thus prejudicing substantially the administration of justice.
142.The Ministers also drew attention to certain subsequent events which they argued showed the sensitivity of the information in this case.
143.The Commissioner has considered carefully the information contained in the document in question, but has been unable to come to the conclusion that disclosure of the information would, or would be likely to, prejudice substantially the administration of justice.The information relates to the specific circumstances of certain individuals and to the special circumstances which surrounded the work of the SCRO at the time.The Commissioner notes that much of this is already publicly known.
144.He has also considered the wider concerns raised by the Ministers in relation to other expert witnesses, but considers that the circumstances are so specific to what was happening to the SCRO at the time, that it is highly unlikely that the information in the document could be used as a basis on which to undermine the evidence of other witnesses in future.
145.As such, the Commissioner does not consider that the disclosure of the information contained in the document in question would, or would be likely to, prejudice substantially the administration of justice.
146.Given that the Commissioner has found that the exemption does not apply, he is not required to go on to consider the public interest test in section 2(1)(b) of FOISA.
Section 36(1) Legal professional privilege
147.As can be seen from the Schedule of Documents, the exemptions in sections 29(1)(a), 30(b) and 36(1) have been applied to almost all of the remaining documents.Given the specific issues raised by the exemption in section 36(1), which the Commissioner will now go on to discuss, the Commissioner will address this exemption before going on to consider the exemptions in sections 29(1)(a) (and (b)) and 30(b).Where he finds that the exemption in section 36(1) applies, he will not go on to consider whether any of the other exemptions cited by the Ministers apply to the information.
148.Section 36(1) of FOISA exempts information in respect of which a claim to confidentiality of communications could be maintained in legal proceedings.One type of communication which falls into this category is communications which are subject to legal professional privilege.
149.The Ministers have applied the exemption in section 36(1) to a large amount of the information withheld from Mr and Mrs McKie; as noted above, the information which appears to have been withheld from them appears to be largely the information which is contained in the Ministers' litigation file.However, although a large number of documents have been withheld from Mr and Mrs McKie, it is worth noting that many of the documents listed in the Schedule are repeated and that much of the information is therefore repeated.Similarly, many of the documents in the Schedule are drafts which have been circulated for comment.Legal advice to Ministers, for example, can go through a large number of drafts before the advice is given.It would be wrong to imagine that the information which has been withheld relates to a large number of separate requests for legal advice or actual legal advice.
150.The communications which have been withheld under section 36(1) cover advice on the question of the Ministers' liability for the actions of fingerprint officers working for the SCRO and work involved in defending (and subsequently settling) the civil action for damages raised by Shirley McKie against the Ministers, including instructing an independent fingerprint expert, Mr Ian MacLean, to provide a report to the Ministers.Much of the advice is given by the Ministers' in-house solicitors, but junior and senior counsel are involved throughout.Invoices have also been withheld under this exemption, usually invoices from Faculty Services Ltd.In addition, the file includes requests for legal advice on how Ministers should respond to letters from parties with an interest in the Shirley McKie case, most notably MSPs (both those representing Shirley McKie and those representing the fingerprint officers) and on the role to be taken by the Ministers in debates proposed to take place in Parliament while the civil action was still live.Similarly, advice is sought and given on responding to a wide range of Parliamentary Questions submitted by MSPs.
151.As noted above, one type of communication covered by the exemption in section 36(1) is legal professional privilege.Legal professional privilege can itself be split into two categories ? legal advice privilege and litigation privilege (also known as communications post litem motam).Much of the information which has been withheld is covered by both types of privilege.
152.There are certain requirements which must be met for legal advice privilege to apply, for example:
the information must relate to communications with a legal adviser
the legal adviser must be acting in their professional capacity and the communications must occur in the context of the professional relationship with their client
the information must be confidential; before information can attract legal advice privilege, the information must have been ? and must continue to be ? confidential between a legal adviser and their client
153.The scope of legal advice privilege is wide.For example, the following types of information may be covered:
presentational advice ? i.e. advice about how best to present evidence
communications seeking legal advice
copied correspondence- e.g. where a client provides a legal adviser with additional information on the subject about which advice is being sought
notes made by a legal adviser ? notes of telephone calls and summaries of a case file with opinions and suggestions made by a legal adviser may be covered by the exemption in section 36(1)
154.Litigation privilege is a distinct aspect of legal professional privilege, extending beyond communications between solicitor and client.It extends to documents created in contemplation of litigation (such as expert reports) and to communications at the stage when litigation is either pending or being considered.The timing of the creation of information will therefore be relevant to assessing whether litigation privilege applies.In this case, it is clear from one of the earliest documents withheld from Mr McKie, that the Ministers were aware that Shirley McKie intended to raise a civil action for damages against the SCRO and, indeed, the Ministers seek legal advice on the question of whether they are liable for the actions of fingerprint officers in one of the earliest pieces of information to be withheld.The last document in the Schedule is dated October 2004, i.e. before the case was settled and while Shirley McKie's damages action was still live.It is therefore clear that much of the information which has been withheld was withheld in contemplation of litigation.
155.There are some situations in which legal professional privilege will not apply, e.g. where privilege has been waived.However, no submissions have been made to the Commissioner that privilege has been waived and the Commissioner, during his investigation, has not found any evidence of privilege having been waived.
156.Having considered the documents which have been withheld under section 36(1), the Commissioner is satisfied that all of the information, except for a small number of invoices, are subject to legal professional privilege in that they comprise information in respect of which a claim to confidentiality of communications could be maintained in legal proceedings.As a result, he is satisfied that these documents are exempt from disclosure under section 36(1) of FOISA.
157.As noted above, the Ministers have withheld a number of invoices on the basis that they are exempt under section 36(1).The Commissioner considers that invoices are capable of attracting privilege, particularly if their contents give an indication of the nature of the legal advice given.
158.In the case of the invoices from Faculty Services Limited (and the invoice from Berkeley Security Bureau (Forensic Ltd)), the invoices state the work which is being charged for.The disclosure of this information, together with information as to the period during which the work was charged for, discloses information about either the facts disclosed by the Ministers to their lawyers, the advice given based on those facts or the resulting litigation strategy developed by client and lawyer.As such, the Commissioner is satisfied that this information is privileged and is exempt under section 36(1) of FOISA.
159.However, not all of the invoices are of this type.A small number of the invoices are from law and commercial copying offices and, given that their role in this case is, for example, to prepare copies of documents for the court in terms of the court rules, the Commissioner does not accept that these invoices attract privilege.Similarly, there are a small number of invoices from the Court of Session in relation to court dues.Again, the Commissioner does not consider that these attract privilege.As such, he is not satisfied that they are exempt under section 36(1).
160.He is, however, satisfied that the remaining invoices do indicate the approach being taken by the Ministers and their solicitors and he is therefore satisfied that the information does attract privilege and is exempt from disclosure under section 36(1).
161.As noted above, the exemption in section 36(1) is subject to the public interest test set out in section 2(1)(b) of FOISA, the requirements of which are set out above.
Section 36(1) ? public interest test
162.Although the Court of Session has yet to consider in any detail the public interest test in relation to the exemption in section 36(1) of FOISA, the equivalent test contained the (UK) Freedom of Information Act 2000 (FOIA) has been considered by the High Court in the case of Department for Business, Enterprise and Regulatory Reform v Information Commissioner and O'Brien [2009] EWHC 164 (QB).
