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Decision 215/2006 Dr Donald Reid and South Ayrshire Council
Information relating to complaints lodged with the Council's Trading Standards and Consumer Protection Service
Applicant: Dr Donald Reid
Authority: South Ayrshire Council
Case No: 200502422
Decision Date: 26 June 2008
Kevin Dunion
Scottish Information Commissioner
Information relating to complaints about a specified company ? whether the provisions of Part 9 of the Enterprise Act 2002 constitute a prohibition on disclosure for the purposes of section 26(a) of FOISA
Relevant Statutory Provisions and Other Sources
Freedom of Information (Scotland) Act 2002 (FOISA) sections 1(1) (General entitlement), 2(1) and 2(2)(b) (Effect of exemptions), and 26(a) (Prohibitions on disclosure).
The full text of each of these provisions is reproduced in the Appendix to this decision. The Appendix forms part of this decision.(References are made to the text of the Enterprise Act 2002 within the decision, and are not set out separately in the Appendix.)
Opinion of the Court of Session in the case of Dumfries and Galloway Council v Scottish Information Commissioner dated 8 February 2008: http://www.scotcourts.gov.uk/opinions/2008CSIH12.html
Facts
Dr Reid wrote to South Ayrshire Council (the Council) requesting information relating to complaints made to its Trading Standards Service about a specified company (the company).The Council refused to supply this information on the grounds that it was exempt under the terms of section 26(a) of the Freedom of Information (Scotland) Act 2002 (FOISA).The Council stated that sections 237 and 245 of the Enterprise Act 2002 prohibited the disclosure of this information.The Council upheld this decision following an internal review.Dr Reid then asked the Commissioner to consider this case.
The Commissioner finds that the Council acted in accordance with Part 1 of FOISA, and, in particular, that the exemption in section 26(a) of FOISA had been correctly applied in this case.
This decision replaces Decision 215/2006, which was issued on 27 November 2006, and which was quashed by the Court of Session on 28 May 2008.
Background
1.This decision concerns the handling of a request for information concerning complaints made to the Trading Standards Services of South Ayrshire Council (the Council). However, the same request was submitted by Dr Reid to each of Scotland's 32 local authorities.Ten of these requests were ultimately the subject of an application for a decision by me.Two of these ten cases were resolved informally, while the remaining eight were the subject of full investigation.
2.The key issue in each of these cases is whether or not provisions within Part 9 of the Enterprise Act 2002 (the EA) constitute a prohibition on disclosure that exempts relevant information from release under FOISA.
Background on section 26(a) of FOSIA and Part 9 of the Enterprise Act 2002
3.At this stage, it is helpful to outline the provisions of FOISA and the EA, interpretation of which is central to this decision.
4.In terms of section 26(a) of FOISA, information is exempt information if its disclosure by a Scottish public authority (otherwise than under FOISA) is prohibited by or under an enactment.
5.The EA enacts various provisions in relation to competition law, the enforcement of consumer legislation and insolvency.Part 9 of the EA introduces rules to govern the disclosure of certain types of information held by public authorities by creating restrictions on the handling of what is termed "specified information".
6.Section 238 of the EA defines the term "specified information".Information is specified information if it comes to a public authority in connection with the exercise of any function it has under, or by virtue of
a)the following Parts of the EA :
Part 1(which establishes the Office of Fair Trading (OFT) as a corporate body and provides for arrangements for making "super-complaints");
Part 3(which makes provisions for a new merger control regime);
Part 4(which makes provision for market investigation references to be made by the OFT);
Part 6(which creates a new criminal offence for individuals to be engaged in cartels, and provides the OFT with investigatory powers);
Part 7(which deals with a number of miscellaneous competition provisions); or
Part 8(which outlines new procedures for enforcing certain consumer legislation and related matters)
b)any of the following enactments (specified in Schedule 14 of the EA):
Parts 1, 2, 3, 4, 5, 6, 7, 8 and 11 of the Fair Trading Act 1973
Trade Descriptions Act 1968
Hallmarking Act 1973
Prices Act 1974
Consumer Credit Act 1974
Customs and Excise Management Act 1979
Estate Agents Act 1979
Competition Act 1980
Video Recordings Act 1984
Consumer Protection Act 1987
Consumer Protection (Northern Ireland) Order 1987
Copyright, Designs and Patents Act 1988
Property Misdescriptions Act 1991
Timeshare Act 1992
Clean Air Act 1993
Value Added Tax Act 1994
Trade Marks Act 1994
Competition Act 1998
Chapter 3 of Part 10 and Chapter 2 of Part 18 of the Financial Services and Markets Act 2000
An order made under section 95 of that Act; or
Fireworks Act 2003.
c)any such subordinate legislation as the Secretary of State may by order specify for the purposes of section 238(1) of the EA.
7.Sections 237(1) and (2) of the EA provide that specified information relating to the affairs of an individual or any business of an undertaking must not be disclosed during the lifetime of the individual or while the undertaking continues in existence, unless disclosure is permitted under Part 9 of the EA.
8.Section 245(1) of the EA creates a criminal offence where a person discloses information to which section 237 applies in contravention of section 237(2).This criminal offence is punishable by imprisonment for a term up to two years, or a fine, or both.
9.There are a number of circumstances where the disclosure of specified information is permitted through "gateways" under Part 9.These can be summarised as follows:
if the individual or undertaking has given consent to the disclosure (section 239);
if disclosure is required for the purpose of a Community obligation (section 240);
if disclosure by the authority is for the purpose of facilitating the exercise of a statutory function of that authority (section 241(1));
if disclosure is in connection with investigating a criminal offence or for the purposes of criminal proceedings (section 242);
if disclosure is to an overseas public authority for the purposes of investigating an offence of pursuing criminal or civil proceedings (section 243).
10.Furthermore, it should be noted that section 237(6) states that "This Part [i.e. Part 9] (except section 244) does not affect any power or duty to disclose information which exists apart from this Part."
11.Before disclosing any specified information, section 244 of the EA requires an authority to have regard to a number of considerations, i.e.:
the need to exclude from disclosure information which the authority thinks is contrary to the public interest;
the need to exclude from disclosure commercial information the disclosure of which the authority thinks might significantly harm the legitimate business interests of the undertaking to which it relates, or information relating to the private affairs of an individual the disclosure of which the authority thinks might significantly harm the individual's interests; and
the extent to which disclosure of information relating to a business interest or the private affairs of an individual is necessary for the purpose for which the authority is permitted to make the disclosure.
Dr Reid's request and the Council's response
12.Dr Reid wrote to the Council's Trading Standards Services on 9 February 2005, requesting details of any complaints lodged in the last 10 years against any or all of the following:
a)a named company (which will be referred to as "the company" throughout this decision),
b)any named directors of the company (whether the complaint related to the director in connection with the company or otherwise), and
c)any named employee of the company.
Dr Reid's request specified further that the details of the complaints that he was requesting were to include:
i.the date on which the complaint was lodged,
ii.against whom the complaint was lodged (in relation to a ? c above),
iii.a brief summary of the nature of the complaint, and
iv.the outcome of any investigation undertaken.
13.The Council issued a refusal notice, dated 9 March 2005, in response to this request. This stated that the information requested by Dr Reid was exempt from disclosure under section 26 of FOISA, because sections 237 and 245 of the EA created a prohibition on disclosure.The Council also stated that it had requested the company's consent to the disclosure of the information (under the terms of section 239 of the EA), but no consent had been received.
14.Dr Reid then wrote to the Council on 14 March 2005 seeking a review of the decision to withhold the information he had requested.The request for review suggested that the Council had failed to have regard to provisions within section 244 of the EA when considering the request, in that the release of information to him would not be contrary to the public interest and would not significantly harm business interests.
15.The Council's response to this notice was issued on 11 April 2005.This advised Dr Reid that the Council had confirmed its original decision that sections 237 and 245 of the EA created a prohibition on disclosure for the purposes of section 26 of FOISA.The Council stated that, because it was not permitted to disclose the information, it was not required to take the provisions of section 244 of the EA into consideration.Dr Reid than made an application for a decision from me in relation to this matter.
16.Dr Reid's application for decision was received by my Office on 15 August 2005.This application contained complaints about responses provided by ten of the 32 local authorities which were sent the request for information detailed in paragraph 12 above.These cases were allocated to an investigating officer.
17.The appeal concerning South Ayrshire Council was then validated by establishing that Dr Reid had made an information request to a Scottish public authority under FOISA (i.e. the Council) and had appealed to me only after asking the Council to review the response to his request.
Investigation
18.The investigating officer wrote to the Council on 15 September 2005 to confirm that a valid application for decision had been received and that a full investigation would now commence. The Council was invited to comment on the case in terms of section 49(3)(a) of FOISA.The Council was asked to provide details of its reasoning when reaching the view that Part 9 of the EA created a prohibition on disclosure for the purposes of section 26(a) of FOISA.
19.During the investigation, I sought the Opinion of Senior Counsel on the interpretation of the provisions of Part 9 of the EA.This Opinion suggested that these provisions did not create a prohibition for the purposes of section 26(a) of FOISA.I invited comments from the Council on this Opinion and also invited submissions on any other exemption that the Council believed applied to the information withheld.In response, the Council disagreed with the Opinion, and it did not seek to rely upon any other exemption in Part 2 FOISA when withholding the information under consideration.
20.I also provided copies of the Opinion, and sought comments on this from a range of bodies that had an interest in the matters raised by this case, including the UK Government (the Department for Trade and Industry), the Office of Fair Trading, LACORS, (the Local Authorities Coordinating Office on Regulatory Services), the Scottish Consumer Council and the Information Commissioner (my counterpart responsible for enforcing the Freedom of Information Act 2000).
The Commissioner's analysis and findings
Does the EA create a prohibition on disclosure?
21.Section 237(1) of the EA states that the provisions of section 237 apply only to information that is "specified information" as defined in section 238, and which relates to either the affairs of an individual or any business of an undertaking.. In order to determine whether the exemption in section 26(a) of FOISA has been correctly applied by the Council in this particular case, three separate questions must be addressed:
a)is the information requested by Dr Reid "specified information" for the purposes of the EA?
b)does the information relate to the affairs of an individual or any business of an undertaking?
c)if is the answers to both (a) and (b) are "yes", does part 9 of the EA then prohibit its release?
22.In response to the first and second questions, I am satisfied that the requested information is specified information for the purposes of the EA, and that it relates to the business of an undertaking, namely that of the company.Dr Reid has requested information about a named company that has been gathered by the Council in the pursuit of its statutory functions under consumer legislation referred to in section 238 of the EA.This concurs with the view taken by the Council that the information is specified information, given that it is held by it with regard to its wide consumer protection function, the function of identifying problem traders and of taking possible enforcement action.
23.The question of whether the provisions of Part 9 of the EA create a prohibition on disclosure for the purposes of section 26(a) of FOISA has been the subject of a judgement of the Court of Session, which was prompted by Dr Reid's related information request to Dumfries and Galloway Council.This can be read online here: http://www.scotcourts.gov.uk/opinions/2008CSIH12.html.
24.The Court concluded that in this case the provisions contained in Part 9 of the EA do create a prohibition on disclosure for the purposes of section 26(a) of FOISA.
25.In line with the Court's judgement (and for the reasons set out in the judgement), I find that the exemption in section 26(a) was correctly applied by the Council in this case.
Decision
I find that South Ayrshire Council (the Council) acted in accordance with Part 1 of the Freedom of Information (Scotland) Act 2002 (FOISA) when responding to Dr Reid's request for information.
In particular, I have concluded that the information requested by Dr Reid was appropriately withheld by the Council on the basis that it was exempt from disclosure under the terms of section 26(a) of FOISA.I therefore do not require any steps to be taken in response to this decision.
Appeal
Should either Dr Reid or the Council wish to appeal against this decision, there is an 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 notice.
Signed on behalf of Kevin Dunion, Scottish Information Commissioner, under delegated authority granted on 14 November 2007.
Margaret Keyse
Head of Investigations
26 June 2008
APPENDIX
Relevant statutory provisions
Freedom of Information (Scotland) Act 2002
1General entitlement
(1)A person who requests information from a Scottish public authority which holds it is entitled to be given it by the authority.
2Effect 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 ?
?
(b)section 26
26Prohibitions 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
