Decision 126/2020: Bankruptcy (Scotland) Act 1913
Public authority: Scottish Courts and Tribunals Service
Case Ref: 202000295
Summary
The SCTS was asked for the rule used in connection with a specific administration under the Bankruptcy Act 1913.
The SCTS told the Applicant it did not hold the information he had asked for. Following an investigation, the Commissioner accepted this.
Relevant statutory provisions
Freedom of Information (Scotland) Act 2002 (FOISA) sections 1(1) and (4) (General entitlement); 17(1) (Notice that information is not held)
The full text of each of the statutory provisions cited above is reproduced in Appendix 1 to this decision. The Appendix forms part of this decision.
Background
1. On 31 December 2019, the Applicant made a request for information to the Scottish Courts and Tribunals Service (SCTS). The information requested was:
"The rule" that had allowed Lord Marnoch to overrule Lord Coulsfield, pertaining to a case decided back in 1995.
2. The SCTS responded on 29 January 2020 and advised the Applicant, in terms of section 17 of FOISA, that the information was not held by it.
3. On 31 January 2020, the Applicant wrote to the SCTS requesting a review of its decision. He was of the view that the information should be held and that the "rule" should be provided to him.
4. The SCTS notified the Applicant of the outcome of its review on 19 February 2020. It upheld its response, explaining that it does not hold information on the reasoning as to how judicial decisions are reached. It also explained that Lord Marnoch had not in fact overruled Lord Coulsfield in the case in question.
5. On 22 February 2020, the Applicant wrote to the Commissioner, applying for a decision in terms of section 47(1) of FOISA. The Applicant stated he was dissatisfied with the outcome of the SCTS's review because he felt that information should be held falling within the scope of his request.
Investigation
6. The application was accepted as valid. The Commissioner confirmed that the Applicant made a request for information to a Scottish public authority and asked the authority to review its response to that request before applying to him for a decision.
7. On 16 March 2020, the SCTS was notified in writing that the Applicant had made a valid application and the application was allocated to an investigating officer.
8. Section 49(3)(a) of FOISA requires the Commissioner to give public authorities an opportunity to provide comments on an application. The SCTS was invited to comment on this application and to answer specific questions, with particular reference to the steps it had taken to identify and locate the information requested.
Commissioner's analysis and findings
9. In coming to a decision on this matter, the Commissioner considered the relevant submissions, or parts of submissions, made to him by both the Applicant and the SCTS. He is satisfied that no matter of relevance has been overlooked.
Information held by the SCTS
10. Section 1(1) of FOISA provides that a person who requests information from a Scottish public authority which holds it is entitled to be given that information by the authority, subject to qualifications which, by virtue of section 1(6) of FOISA, allow Scottish public authorities to withhold information or charge a fee for it. The qualifications contained in section 1(6) are not applicable in this case.
11. The information to be given is that held by the authority at the time the request is received, as defined in section 1(4). This is not necessarily to be equated with information an applicant believes the authority should hold. If no such information is held by the authority, section 17(1) of FOISA requires it to give the applicant notice in writing to that effect.
12. The Commissioner notes that the Applicant maintains the view that the SCTS should hold the requested information.
13. In its submissions to the Commissioner, the SCTS confirmed its position that it held no record of the information requested by the Applicant. In this regard, the SCTS commented on the Commissioner's Decision 053/2020: The Applicant and the Scottish Courts and Tribunal Service, in which it had previously explained that it did not hold information on how judicial decisions were reached.
14. The SCTS confirmed the searches and enquiries it undertook to ascertain whether it held any information falling within the scope of the Applicant's request, and provided details of these. These included searches of relevant electronic and paper records, consultation with relevant staff, and referencing judicial findings available online. The SCTS provided evidence confirming that the information requested was not held. The conclusion of the searches and enquiries was that no information was held falling within the scope of the request under consideration.
15. The SCTS submitted that the Applicant sought information on a rule which allowed something which had not actually taken place, as there had been no overturning of decision. Furthermore, the SCTS explained that it does not hold information on how judicial decisions are reached - this is a judicial matter, rather than an administrative issue.
16. The standard proof to determine whether a Scottish public authority holds information is the civil standard of the balance of probabilities. In determining where the balance lies, the Commissioner considers the scope, quality, thoroughness and results of the searches carried out by the public authority. He also considers, where appropriate, any reason offered by the public authority to explain why it does not hold the information. Ultimately, the Commissioner's role is to determine what relevant information is actually held by the public authority (or was, at the time it received the request).
17. Having considered all relevant submissions and the terms of the request which is the subject of the application, the Commissioner accepts that the SCTS interpreted the Applicant's request reasonably and took adequate, proportionate steps in the circumstances to establish what information it held.
Given the explanations and other submissions provided, he is satisfied that the SCTS did not hold the information under consideration here and was correct to give the Applicant notice, in terms of section 17(1) of FOISA, that it held no information falling within the scope of his request.
Decision
The Commissioner finds that the Scottish Courts and Tribunals Service complied with Part 1 of the Freedom of Information (Scotland) Act 2002 in responding to the information request made by the Applicant.
Appeal
Should either the Applicant or the SCTS wish to appeal against this decision, they have the right to appeal to the Court of Session on a point of law only. Any such appeal must be made within 42 days after the date of intimation of this decision.
Margaret Keyse
Head of Enforcement
6 October 2020
Appendix 1: Relevant statutory provisions
Freedom of Information (Scotland) Act 2002
1 General entitlement
(1) A person who requests information from a Scottish public authority which holds it is entitled to be given it by the authority.
…
(4) The information to be given by the authority is that held by it at the time the request is received, except that, subject to subsection (5), any amendment or deletion which would have been made, regardless of the receipt of the request, between that time and the time it gives the information may be made before the information is given.
…
17 Notice that information is not held
(1) Where-
(a) a Scottish public authority receives a request which would require it either-
(i) to comply with section 1(1); or
(ii) to determine any question arising by virtue of paragraph (a) or (b) of section 2(1),
if it held the information to which the request relates; but
(b) the authority does not hold that information,
it must, within the time allowed by or by virtue of section 10 for complying with the request, give the applicant notice in writing that it does not hold it.
…
