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Decision 214/2016: Mr Peter Low and the Scottish Public Services Ombudsman
Judicial Factor and Accountant of Court
Reference No: 201601199
Decision Date: 5 October 2016
Summary
On 11 April 2016, Mr Low asked the Scottish Public Services Ombudsman (the SPSO) for correspondence between a Judicial Factor (appointed to manage the affairs of a solicitor subject to investigation for financial irregularities) and the Accountant of Court.
The SPSO withheld the information on the basis that disclosure was prohibited by other legislation. The SPSO also notified Mr Low that much of the information he sought was his own personal data. It withheld his personal data under section 38(1)(a) of FOISA, but disclosed some of it to him under the Data Protection Act. Following a review, Mr Low disagreed with the exemptions applied by the SPSO and applied to the Commissioner for a decision.
The Commissioner investigated and found that SPSO was entitled to withhold all the requested information under section 26(a) of FOISA, as disclosure was prohibited by other legislation.
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Relevant statutory provisions
Freedom of Information (Scotland) Act 2002 (FOISA) sections 1(1) and (6) (General entitlement); 2(1) and (2)(b) (Effect of exemptions); 26(a) (Prohibitions on disclosure)
Scottish Public Services Ombudsman Act 2002 (the SPSO Act) section 19 (Confidentiality of information)
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. It may be helpful to explain that Mr Low was an executor for his deceased mother's estate. He raised a complaint with the SPSO regarding the actions of the Accountant of Court, arising out complaints of financial irregularity relating to the solicitor handling the estate. Mr Low wished to obtain information held by the SPSO in connection with his complaint.
2. On 11 April 2016, Mr Low requested from the SPSO:
"a copy of the [Judicial] Factor's correspondence with the Accountant [of Court]."
3. SPSO responded on 11 May 2016. In its response, the SPSO notified Mr Low that section 19 of the SPSO Act prevented it from disclosing the information he sought. The SPSO cited section 26(a) of FOISA, on the basis that disclosure was prohibited by or under another enactment.
4. The SPSO also informed Mr Low that it considered much of the information to be Mr Low's own personal data. It withheld all his personal data under section 38(1)(a) of FOISA, clarifying that it intended to respond to the request under the Data Protection Act 1998 (the DPA) as this would protect the privacy of Mr Low's own personal data. On 20 May 2016, it did so and Mr Low received some of the information he requested, under the DPA rather than FOISA.
5. On 20 May 2016, Mr Low wrote to SPSO requesting a review of its decision to withhold all the information he described in his request under FOISA.
6. The SPSO responded to Mr Low's requirement for review on 16 June 2016, upholding its original decision without modification. It explained aspects of its handling of the request under the DPA.
7. On 28 June 2016, Mr Low wrote to the Commissioner. He applied to the Commissioner for a decision in terms of section 47(1) of FOISA. Mr Low stated he was dissatisfied with the outcome of the SPSO's review because he considered he was entitled to receive the information under FOISA. He also identified concerns regarding the SPSO's handling of the request under the DPA.
Investigation
8. The application was accepted as valid. The Commissioner confirmed that Mr Low made a request for information to a Scottish public authority and asked the authority to review its response to that request before applying to her for a decision.
9. On 6 July 2016, the SPSO was notified in writing that Mr Low had made a valid application. The SPSO was asked to send the Commissioner the information withheld from Mr Low. The SPSO provided the information and the case was allocated to an investigating officer.
10. Section 49(3)(a) of FOISA requires the Commissioner to give public authorities an opportunity to provide comments on an application. The SPSO was invited to comment on this application and answer specific questions, justifying its reliance on any provisions of FOISA it considered applicable to the information requested.
11. The SPSO responded with submissions on 26 August 2016.
12. Mr Low was advised by both the validation and investigating officers that his concerns regarding the handling of his request under the DPA did not fall within the Commissioner's remit. The Commissioner would reiterate that: these concerns, relating to the application of the DPA, are not ones she can investigate.
13. The Commissioner notes that the SPSO and Mr Low attempted resolution during this investigation. The SPSO wrote to Mr Low on 9 September 2016, providing clarification on certain points of concern to Mr Low. Mr Low remained of the view that the information he sought should be disclosed to him.
Commissioner's analysis and findings
14. In coming to a decision on this matter, the Commissioner considered all of the withheld information and the relevant submissions, or parts of submissions, made to her by both Mr Low and SPSO. She is satisfied that no matter of relevance has been overlooked.
Section 26(a) - Prohibitions on disclosure
15. Section 26(a) of FOISA exempts information from disclosure under FOISA where disclosure of the information is prohibited by, or under, any enactment. This is an absolute exemption, in that it is not subject to the public interest test set down in section 2(1)(b) of FOISA. In this case, the SPSO argued that such a prohibition was created by section 19(1) of the SPSO Act (which is reproduced in Appendix 1).
16. Section 19(1) of the SPSO Act provides that information obtained by the Ombudsman, or any of the Ombudsman's advisers, in connection with any matter in respect of which a complaint or a request has been made, must not be disclosed except for a limited range of purposes specified elsewhere in section 19 (see Appendix 1 for details). These purposes do not include disclosure of information under FOISA.
17. The Commissioner accepts that section 19(1) of the SPSO Act creates a prohibition on the disclosure of information that engages section 26(a) of FOISA. Section 19(1) clearly states that the prohibition relates to information "obtained" by the Ombudsman or any of his advisers in connection with any matter in respect of which a complaint or a request has been made.
18. Having considered the information withheld in this case, the Commissioner is satisfied that the information under consideration was obtained by the SPSO during its investigation of a complaint and is information to which the prohibition in section 19(1) applies. The Commissioner therefore accepts that the SPSO was entitled to apply the exemption in section 26(a) of FOISA to the information requested by Mr Low.
19. As the Commissioner has found that the withheld information has been correctly withheld under section 26(a) of FOISA, there is no requirement for her to consider the application of section 38(1)(a) of FOISA in this case.
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Decision
The Commissioner finds that the Scottish Public Services Ombudsman complied with Part 1 of the Freedom of Information (Scotland) Act 2002 in responding to the information request made by Mr Low.
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Appeal
Should either Mr Low or SPSO 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
5 October 2016
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.
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(6) This section is subject to sections 2, 9, 12 and 14.
2 Effect of exemptions
(1) To information which is exempt information by virtue of any provision of Part 2, section 1 applies only to the extent that -
(a) the provision does not confer absolute exemption; and
(b) in all the circumstances of the case, the public interest in disclosing the information is not outweighed by that in maintaining the exemption.
(2) For the purposes of paragraph (a) of subsection 1, the following provisions of Part 2 (and no others) are to be regarded as conferring absolute exemption -
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(b) section 26;
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26 Prohibitions on disclosure
Information is exempt information if its disclosure by a Scottish public authority (otherwise than under this Act)-
(a) is prohibited by or under an enactment;
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Scottish Public Services Ombudsman Act 2002
19 Confidentiality of information
(1) Information obtained by the Ombudsman or any of the Ombudsman's advisers in connection with any matter in respect of which a complaint or a request has been made must not be disclosed except for any of the purposes specified in subsection (2) or as permitted by subsection (3).
(2) Those purposes are-
(a) the purposes of-
(i) any consideration of the complaint or request (including any statement under section 11),
(ii) any investigation of the matter (including any report of such an investigation),
(b) the purposes of any proceedings for-
(i) an offence under the Official Secrets Acts 1911 to 1989 alleged to have been committed in respect of information obtained by the Ombudsman,
(ii) an offence of perjury alleged to have been committed in the course of any investigation of the matter,
(c) the purposes of an inquiry with a view to the taking of any of the proceedings mentioned in paragraph (b),
(d) the purposes of any proceedings under section 14.
(3) Where information referred to in subsection (1) is to the effect that any person is likely to constitute a threat to the health or safety of individuals (in particular or in general), the Ombudsman may disclose the information to any person to whom the Ombudsman thinks it should be disclosed in the interests of the health or safety of the particular individuals or, as the case may be, individuals in question.
(4) In relation to information disclosed under subsection (3), the Ombudsman must-
(a) where the Ombudsman knows the identity of the person to whom the information relates, inform that person of the disclosure of the information and of the identity of the person to whom it has been disclosed, and
(b) inform the person from whom the information was obtained of the disclosure.
(4A) The duty under subsection (4)(a) to inform a person about the identity of a person to whom information has been disclosed does not apply where informing the former person is likely to constitute a threat to the health and safety of the latter person.
(5) It is not competent to call upon the Ombudsman or the Ombudsman's advisers to give evidence in any proceedings (other than proceedings referred to in subsection (2)) of matters coming to the knowledge of the Ombudsman or advisers in connection with any matter in respect of which a complaint or request has been made.
(6) A member of the Scottish Executive may give notice in writing to the Ombudsman with respect to-
(a) any document or information specified in the notice, or
(b) any class of document or information so specified,
that, in the opinion of the member of the Scottish Executive, the disclosure of the document or information, or of documents or information of that class, would be contrary to the public interest.
(7) Where such a notice is given nothing in this Act is to be construed as authorising or requiring the Ombudsman or any of the Ombudsman's advisers to communicate to any person or for any purpose any document or information specified in the notice, or any document or information of a class so specified.
(8) Information obtained from -
(a) the Information Commissioner by virtue of section 76 of the Freedom of Information Act 2000 (c.36)
(b) the Scottish Information Commissioner by virtue of section 63 of the Freedom of Information (Scotland) Act 2002 (asp 13),
is to be treated for the purposes of subsection (1) as obtained in connection with any matter in respect of which a complaint or request has been made.
(9) In relation to such information, subsection (2)(a) has effect as if-
(a) the reference in sub-paragraph (i) to the complaint or request were a reference to any complaint or request, and
(b) the reference in sub-paragraph (ii) to the matter were a reference to any matter.
(10) In this section and section 20 references to the Ombudsman's advisers are to persons from whom the Ombudsman obtains advice under paragraph 10 of schedule 1.
