The EA is a UK-wide statute that makes provision for competition law, the enforcement of consumer legislation and insolvency in the United Kingdom. Part 9 of that Act governs the disclosure of certain types of information obtained by public authorities under various pieces of competition and trading legislation. In particular, section 237 contains a general restriction on disclosure of 'specified' information relating to the affairs of an individual or the business of an undertaking. Specified information is defined in section 238 as information that comes to a public authority in connection with the exercise of certain functions, which are specified in the EA itself. For example, information obtained by the OFT in relation to a market investigation or information obtained by a local authority in relation to its functions under the Trade Descriptions Act 1968.
The SIC was asked to rule on a number of appeals which he received which dealt with Part 9 of the EA. The SIC concluded that Part 9 of the EA did not amount to a statutory prohibition on disclosure and was not, therefore, exempt under section 26(a) of the FOISA. A number of councils appealed the SIC’s ruling on this issue and the decision on the first of these cases to be heard by the Court of Session was handed down in early February.
The Court of Session disagreed with the approach of the SIC and upheld Dumfries and Galloway Council’s appeal.
The difficulty that both the SIC and the Court of Session have encountered in looking at this issue is that arguably the interaction of the two pieces of legislation is circular. Information is exempt from disclosure under FOI where its disclosure is prohibited under an enactment. Part 9 of the EA can be seen to be such an enactment but Part 9 also says that the prohibitions on disclosure it contains do not affect any power or duty to disclose information which "exists apart from this Part" – e.g. a duty to disclose under FOI.
The Court ultimately cut across this circularity by holding that the provision in section 237(6) of EA that Part 9 does not affect any power or duty to disclose which “exists apart from this Part” had a two fold meaning. The Court held that first the other power or duty had to be found elsewhere than Part 9 but also that the exercise of that other power or duty could not be inconsistent with the prohibitions or restrictions in Part 9 of the EA. By way of example they mention that the duty of non-disclosure under the Data Protection Act 1998 is consistent with the provisions of Part 9. The duty to disclose under FOISA was not, however, consistent with those provisions and so could not 'trump' them.
This latest decision brings the interpretation of the Scottish legislation in line with the ultimate approach taken by the UK Information Commissioner. In a number of cases where he has been asked to rule on the interaction between Part 9 of the EA and the UK FOI legislation the UK Information Commissioner has held that it was appropriate to withhold information obtained in terms of Part 9 of the EA. His reason for ruling this way was on the basis that Part 9 of the EA amounted to a statutory prohibition on disclosure meaning that information which could not be disclosed under Part 9 is also exempt from disclosure in terms of section 44 of the FOIA (the equivalent provision in the UK legislation to section 26 of FOISA). Part 9 of the EA is not affected by the duty to disclose under FOI because there is not such duty in respect of this information when the exemption is engaged.
This latest case is of narrower practical relevance than the earlier decisions of the Court of Session but it is interesting to see FOI continue to develop and to see the Court moving towards an approach already taken in respect of the UK legislation rather than upholding the SIC’s approach.
Finally FOI also recently made the news in respect of the nationalisation of Northern Rock. The government was heavily criticised for including in the bill nationalising Northern Rock a provision providing that Northern Rock would be exempt from FOI.