EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Reed Lord Clarke Lord Hardie XA126/07 XA145/07	[2009] CSIH 73 OPINION OF THE COURT delivered by LORD REED in the Appeals by GLASGOW CITY COUNCIL and DUNDEE CITY COUNCIL Appellants; against decisions of THE SCOTTISH INFORMATION COMMISSIONER Respondent: _______

First appellants: Currie QC, Barne; Council Solicitor

Second appellants: MacColl; Gillespie Macandrew LLP

First respondent: Johnston QC, Munro; Brodies LLP

Second respondent: Webster; MacRoberts

30 September 2009

Introduction

[1] These appeals raise important questions as to the interpretation and application of the Freedom of Information (Scotland) Act 2002. In particular, questions arise as to what is meant by "information", as that term is used in the Act; as to who is to be treated as the "applicant", as that term is used in the Act, when a request for information is made by an agent acting on behalf of another person; as to the effect of section 11 of the Act, which enables an applicant to express a preference as to the means by which information is to be provided; as to the application of the exemption, by virtue of section 25(1) of the Act, of "information which the applicant can reasonably obtain other than by requesting it under section 1(1)"; and as to the implications of any duty of fairness incumbent upon the Scottish Information Commissioner ("the Commissioner") in relation to decisions taken under section 49 of the Act.

[2] The appeals are closely related in their circumstances and subject-matter, and were heard together. They differ however in some material respects. It is convenient at this point to explain the background to each appeal.

The Glasgow Appeal

[3] On 17 February 2005 MacRoberts, a firm of solicitors, sent 33 e-mails to Glasgow City Council (the first appellants). Each e-mail purported to be a request for information under the Act, and stated that, "on behalf of a client, MacRoberts would like to (and hereby does) make an Information Request that we be provided with a copy of [a specified document or documents]". The client was not named. It was in fact Millar & Bryce Limited (the second respondents). The specified documents were the register of private water supplies held by the first appellants; the register of public roads as at 17 February 2005 maintained under the Roads (Scotland) Act 1984; and all notices or orders made or served prior to 17 February 2005, and which remained extant as at that date, under specified provisions of the Housing (Scotland) Act 1987, the Town and Country Planning (Scotland) Act 1997, the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997, the Civic Government (Scotland) Act 1982, the Environmental Protection Act 1990, the Building (Scotland) Acts 1959-1970 and the Building (Scotland) Act 2003. These are the registers, notices and orders about which information is commonly sought when a person proposes to acquire an interest in heritable property in Scotland. It is to be noted that what was requested was not information about the registers, notices and orders, or the information recorded in them: what was requested was copies of the documents themselves. MacRoberts added:

"Pursuant to Section 11 of the Act, we would prefer the information in electronic form, failing which in hard copy."

The first appellants did not respond.

[4] Once the statutory time limit for compliance with a request for information had expired, MacRoberts sent a further 33 e-mails to the first appellants, each of which purported to be a requirement for review within the meaning of section 20 of the Act. The first appellants did not respond.

[5] Once the statutory time limit for compliance with a requirement for review had expired, MacRoberts made what purported to be 33 applications to the Commissioner, under section 47 of the Act, for a decision whether the request for information had been dealt with in accordance with Part 1 of the Act. The Commissioner determined that the applications had been made in accordance with section 47.

[6] On 31 May 2005 Mr Mutch, a member of the Commissioner's staff, wrote to the first appellants giving them written notice of the applications and inviting their comments, in accordance with section 49(3)(a) of the Act. It was then discovered that MacRoberts' e-mails had been "quarantined" as a result of a malfunction of the first appellants' IT system, with the consequence that the first appellants had been unaware of the e-mails' existence. They then considered the 33 requests and on 22 July 2005 replied to Mr Mutch.

[7] In relation to the request for a copy of the register of private water supplies, they stated that they maintained no such register, as there were no private water supplies in Glasgow. In relation to the request for a copy of the register of public roads, they stated that the information was exempt under section 25(1) of the Act, since the register was published on their website and was also available for inspection. In relation to the requests for copies of notices served under the Building (Scotland) Act 2003 which were extant as at 17 February 2005, they stated that there were no such notices, since the 2003 Act had not come into force until after that date. In relation to the remaining 28 requests for copies of notices and orders served under other legislation, they stated that the information was exempt under section 25(1), since it was accessible through their publication scheme, and that it was also exempt under section 33(1)(b), since its disclosure would substantially prejudice their commercial interests. The cost of complying with the requests would in any event be excessive, in terms of section 12(1).

[8] In the light of that reply, MacRoberts withdrew their applications in relation to the requests for copies of the registers of private water supplies and public roads, and for copies of notices served under the Building (Scotland) Act 2003, in so far as they did not require the Commissioner to consider whether they should be given this "information".

[9] On 10 April 2006 the first appellants responded to a request from Mr Mutch for further information in relation to the remaining 28 applications. In relation to section 25(1) of the Act, they stated that their publication scheme, which had been approved by the Commissioner in accordance with section 23(1)(a), provided that Property Enquiry Certificates (PECs) could be purchased from them. All the information requested by MacRoberts was available through PECs. In order to obtain all the information requested, MacRoberts would have to purchase a PEC for every property within the city boundaries and then extract the information from the PECs. There were approximately 300,000 properties within the city boundaries. Since a PEC cost £62, the total cost of purchasing the PECs was estimated at £18.6 million.

[10] In relation to section 33(1)(b), the first appellants explained that they obtained a substantial income from the sale of PECs, although their share of the PEC market had declined. Their competitors were private search companies. Most of these companies bought PECs from the first appellants. One competitor did not buy PECs but instead relied on published committee minutes. The first appellants' understanding was that MacRoberts' client was the second respondents, a company which was already active in the sale of property-related information in the Glasgow area but not as yet in the sale of PECs. If the first appellants were forced to release the information requested by MacRoberts free of charge, there would no longer be a need for their PEC service. This would cause substantial prejudice to their commercial interests.

[11] In relation to section 12(1), the first appellants explained that the information recorded on PECs came from a number of different departments and locations. The first appellants held a central database of the necessary information, which was updated on a daily basis by each relevant department. In order to provide reports detailing the 28 categories of notice requested, it would currently be necessary to extract the information from 300,000 individual PECs. An alternative would be for the first appellants to develop an IT programme which would extract from the database a list of all records that met the specified criteria. The development work was estimated to take 133 hours, and would require to be carried out by external contractors at an estimated cost of £35 per hour. The resultant cost was in excess of the upper limit of £600 per request allowed by the regulations made under section 12(1).

[12] It is to be noted that the first appellants' response to the Commissioner, and their contentions in relation to sections 12(1), 25(1) and 33(1)(b), proceeded on the basis that the information which was the subject of the requests was the information contained in the statutory notices, rather than copies of the notices themselves.

[13] On 8 June 2006 the first appellants responded to a request from Mr Mutch for further information. In relation to section 25(1), they confirmed that there was no currently available means of ascertaining the proportion of PECs which showed no statutory notices other than by going through PECs for all 300,000 properties. In relation to section 33(1)(b), they reiterated that they sold PECs "using the information which has been requested by MacRoberts". If they were forced to release the information requested, the PEC market would collapse. In relation to section 12(1), they again explained that their cost estimate was based on the development of an IT programme to extract data. Their response again proceeded on the basis that the subject of the requests was the information contained in the statutory notices, rather than copies of the notices themselves.

[14] On 29 June 2006 Mr Mutch wrote to the first appellants requesting further information relating to "the cost to the Council of responding to MacRoberts' information requests". In particular, Mr Mutch noted that the cost estimates had been based on the assumption that external contractors would be employed to develop an IT programme. The first appellants were asked to explain why that work could not be carried out by their own staff, and to confirm whether any estimates had been obtained from external contractors. They responded on 12 July 2006, stating that it would now be possible for the work to be carried out by their own staff.

[15] On 28 May 2007 Mr Mutch wrote to the first appellants in relation to their contention that the information was exempt under section 33(1)(b), stating:

"During the investigation of this case, it has been revealed that equivalent information to that being sought by MacRoberts' client is currently provided under freedom of information legislation by 17 of the 26 local authorities to whom requests are made, with only two of those authorities charging a fee for the release of that information.

In addition, it seems that a further five authorities provide access to the range of information outwith the scope of FOI - for example via regular direct email notification, or through website access.

It would appear, in relation to each of the above cases, that the authorities in question do not share the Council's view that the release of equivalent information would substantially prejudice their own commercial interests.

With this in mind, I would ask that you contact me to confirm whether the Council wishes to review any aspect of its submission in relation to this case, and in particular the application of the section 33(1)(b) exemption, prior to the presentation of my final recommendations to the Commissioner."

The first appellants responded on 13 June 2007, stating that they did not wish to change their position and that they maintained the argument set out in the earlier correspondence.

[16] On 16 July 2007 the Commissioner issued his decision under section 49(3)(b). After considering the first appellants' failure to reply to the requests within the statutory time limit, the Commissioner considered the claims for exemption.

[17] In relation to section 25(1) of the Act, the Commissioner rejected the contention that the information was exempt, first because PECs would not provide what had actually been requested, namely copies of the notices:

"43. Firstly, I note that the requests made in relation to requests 3-30 specifically sought copies of extant notices served under the relevant pieces of legislation. The methodology proposed by the Council may well identify individual properties which are the subject of relevant notices, but it would not provide MacRoberts with copies of those specific notices and, as such, would not accurately fulfil the various requests."

(emphasis in the original). Secondly, and in any event, the cost to MacRoberts would be excessive:

"44. Regardless of this, however, even if MacRoberts considered that details of individual properties subject to such notices would indeed be a suitable response to the various requests, I am still of the opinion that the methodology proposed by the Council would not be appropriate. In order to access details of each property which is subject to an extant notice under the relevant legislation, the methodology proposed would require the purchase of a PEC for each and every property within the Council's geographic boundaries. These certificates would then have to be individually reviewed in order to determine whether that property was subject to one of the relevant extant notices. This methodology would, by its nature, require the purchase of a substantial amount of information in which MacRoberts had no interest, namely all PECs where the properties were not subject to any extant notices under the relevant legislation.

45. While the Council is unable to estimate the proportion of properties which are not subject to any extant notices, they have stated that "most [PECs] disclose no notices", suggesting that the majority of the PECs purchased through the methodology proposed would be of no interest to MacRoberts. As a result, this methodology would require an enormous financial resource to be expended, purchasing information in which there was no interest."

The Commissioner concluded:

"46. I am therefore of the opinion that the specific information requested by MacRoberts under requests 3-30 is not obtainable through the Council's publication scheme."

[18] In relation to section 33(1)(b), the Commissioner summarised the first appellants' contentions:

"50. In summary, the Council stated in its submissions to my Office that the requested information was used to create PECs, and that the release of the information would substantially prejudice the Council's commercial interests with regard to the sale of those PECs.

51. The Council suggested that the disclosure of such information would allow commercial rivals to prepare their own PECs at little or no cost, using information generated by the Council, thus allowing those rivals to significantly undercut the Council's own PEC service.

52. The Council went on to assert that the release of the information would also allow individuals (or organisations) involved in the conveyancing process to access that information free of charge for their own purposes, bypassing the PEC services of both the Council and its commercial competitors. The Council argued that this eventuality would also substantially prejudice its commercial interests (as well as those of its commercial competitors).

53. The Council pointed out that it issues approximately 4,640 PECs each year, resulting in gross revenue for the Council of £287,680. It stated that this revenue stream was used to offset the costs involved in operating the PEC system and in maintaining searchable databases required to retrieve the information. The Council asserted that MacRoberts' requests were essentially for access to the raw data contained within these databases, and argued that, if relevant information was released, then this income stream may diminish or disappear completely, resulting in the Council having to fund the maintenance of searchable databases from its general revenues, to the detriment of the taxpayer."

The Commissioner accepted that the first appellants' provision of PECs was a commercial activity in relation to which they held commercial interests. It was therefore necessary to determine whether the release of the information requested would substantially prejudice those interests. In that regard, the Commissioner referred to the counter-arguments put forward by MacRoberts:

"64. The arguments put forward by the Council, must, however, be assessed alongside the counter-arguments put forward by MacRoberts. In their submission to this Office, MacRoberts have argued that the information sought is currently provided to a client of theirs under FOISA at no charge by 15 of the 26 local authorities from whom the information had been requested. MacRoberts added that a further 2 local authorities supplied the information under FOISA while charging a fee, while an additional 5 local authorities provided the information by means outwith FOISA, such as through direct email correspondence, or by access through Council offices or websites."

The Commissioner continued:

"65. On receipt of MacRoberts' submission, my staff subsequently conducted a survey of relevant authorities in order to assess the submission made by MacRoberts and to gauge whether any of the relevant authorities had subsequently experienced damage to their own commercial interests as a result of responding to requests from MacRoberts' client. Representatives from eleven local authorities were subsequently contacted by my staff and discussions were held in relation to relevant issues.

66. The evidence gathered as a result of these discussions indicated that the concerns held by Glasgow City Council in relation to the predicted harm to their own commercial interests were not generally borne out in practice. Indeed, it was found that none of the local authorities questioned could demonstrate that their own commercial revenues had fallen substantially as a direct result of the release of equivalent information in response to FOISA requests.

67. While some authorities did report that their own revenues from the issue of PEC's had indeed fallen, it was generally acknowledged that this decline in revenue could not be solely and primarily attributed to FOISA. Instead, relevant authorities commonly acknowledged that such revenues had been falling steadily in recent years as part of a trend that predated the implementation of FOISA. Where such a trend was reported, it was commonly considered that this had its origins in the rise in the number of commercial competitors offering PEC services, and that such services were being offered prior to the implementation of FOISA. It was acknowledged that commercial competitors were currently producing PEC's from information available through publicly accessible local authority registers, or through published minutes of authority meetings.

68. Equally, a number of authorities reported that they had seen little or no impact on their own commercial revenues as a result of the release of this type of information. Several authorities also expressed the view that, regardless of the release of relevant information in response to FOISA requests, the PEC product offered by a local authority maintained a distinct commercial advantage over rival products, and that this had minimised or eliminated any corresponding impact on revenues. This was seen to be the case because it was only the local authority which was able to provide PEC's that were fully up to date and accurate: by contrast the information which informed rival PEC's would often be several months out of date. In addition (and for the same reason) local authorities were claimed to be the only bodies which could offer a fully warranted and indemnified product to the market. It should also be noted that none of the authorities interviewed reported any evidence of substantial harm occurring to their PEC's revenues as a result of individual homeowners seeking access to underlying PEC information."

It is to be noted that, although the first appellants had been informed of the gist of MacRoberts' submissions (as recorded in paragraph 64) in Mr Mutch's letter of 28 May 2007 and had been given an opportunity to respond, they had not been informed of the evidence obtained by the Commissioner's staff, summarised in paragraphs 66 to 68.

[19] In the light of this evidence, the Commissioner rejected the contention that the information was exempt under section 33(1)(b):

"69. Having considered at length the issues raised by this case, I must conclude that I cannot accept the Council's assertion that the release of the information in question would prejudice substantially their commercial interests. As set out above, I have found no compelling evidence to suggest that such substantial prejudice has occurred as a direct result of release of this type of information under FOISA by other local authorities, and Glasgow City Council has presented no information which demonstrates that their own circumstances would differ significantly in this respect."

The Commissioner added:

"72. In coming to this decision, I have also taken into account the fact that most, if not all, of the core information sought by MacRoberts' client is currently obtainable through access to publicly accessible registers and minutes of relevant Council meetings. Indeed, it is my understanding that it is this information which principally informs the PEC's which are currently produced by the Council's commercial competitors. In this respect, I find it hard to accept that information which is freely and publicly available in this manner will have necessary qualities to attract the exemption under section 33(1)(b) of FOISA....."

In this passage, the Commissioner appears to have proceeded on the basis that the "core information" sought was information concerning, or recorded in, statutory notices, rather than copies of the notices themselves.

[20] The Commissioner finally considered the cost of responding to the requests. He accepted the first appellants' estimate of the number of hours of work which would be required in order to develop suitable IT programmes to extract the necessary information from the database. Since the first appellants accepted that the work could be carried out by their own staff, the work had to be calculated on the basis of an assumed cost of £15 per hour (that being the maximum figure allowed under regulations). The resultant figure, divided between the 28 requests, did not exceed the £600 limit applicable under section 12(1).

[21] The Commissioner accordingly decided that the first appellants had not dealt with MacRoberts' requests for information in accordance with Part 1 of the Act and directed them to provide MacRoberts with a full and accurate response in relation to each of the requests.

[22] Following the issue of the decision, the first appellants wrote to the Commissioner on 14 August 2007. Referring to what had been said in paragraph 72 of the decision, they asked whether it would be sufficient for them to refer MacRoberts and their clients to publicly available registers and minutes of relevant Council meetings, so far as those might be relevant to the request. A member of the Commissioner's staff replied on 15 August 2007, stating that copies of the notices themselves had to be provided:

"....the Commissioner requires that the Council fulfil its obligations under FOISA by providing MacRoberts with a full and accurate response in relation to each of the requests contained under Requests 3-30 of MacRoberts information request. This will, therefore, involve the direct provision to MacRoberts of copies of the relevant extant notices or orders."

The Dundee Appeal

[23] On 10 May 2005 MacRoberts sent 28 e-mails to Dundee City Council (the second appellants) requesting "on behalf of a client" that they be provided with copies of various documents. The client was not named, but was the second respondents. Subject to certain minor differences which are of no materiality to these appeals, the e-mails were similar to those sent to the first appellants. The second appellants replied on 10 June 2005, refusing the request on the basis that section 33(1)(b) of the Act was applicable. Following a review under section 21, the second appellants maintained that position. MacRoberts then applied to the Commissioner under section 47. The Commissioner determined that the applications had been properly made.

[24] The second appellants were then notified of the applications and invited to submit comments. They responded that their previous submissions had set out their reasons for not disclosing the information requested. On 4 July 2006 Mr Mutch requested that they set out in greater detail how their commercial interests would be prejudiced. They responded on 28 July 2006:

"It is the Council's view that these Freedom of Information requests have been made by Millar and Bryce to enable them to extend their [PEC] service to Dundee in competition with the Council. Releasing this information would therefore substantially prejudice the Council's commercial interests by providing free information to a competitor who would use it for commercial purposes.....

For many years now (including before the introduction of Freedom of Information) the Council have offered Millar and Bryce the same facility as all members of the public have to come to Dundee to search the public records. Millar and Bryce have on occasion taken up this facility. It is thought however that they did not find this to be cost effective and they then offered to purchase the information from the Council.....It seems clear that with the advent of Freedom of Information Millar and Bryce believe that this is another 'tool' to seek to access information which would be commercially valuable to them without the necessity of searching for it themselves or paying for it. I can however confirm that the facility of searching the public records in Dundee remains open to Millar and Bryce."

The second appellants added that several search companies, including the second respondents, purchased PECs from them.

[25] On 15 August 2007 the Commissioner issued his decision under section 49(3)(b). In relation to the contention that the information was exempt under section 33(1)(b), the Commissioner repeated what he had said in the Glasgow decision at paragraphs 50 and 51. He accepted that the second appellants' provision of PECs was a commercial activity in relation to which they held commercial interests, and that it was therefore necessary to determine whether the release of the information requested would substantially prejudice those interests. In that regard, the Commissioner stated:

"31. .....in trying to assess the potential impact of disclosure on the Council to its commercial activities, I made reference to a previous decision (112/2007 MacRoberts Solicitors and Glasgow City Council) in formulating my views on this particular case.

32. As part of the investigation process applicable to decision 112/2007, my staff conducted a survey of authorities who had disclosed similar information to that requested in this case. This was with a view to gauging whether any had subsequently experienced damage to their own commercial interests. Representatives from eleven local authorities were contacted by my staff and discussions were held in relation to the relevant issues."

The Commissioner then repeated, mutatis mutandis, paragraphs 66 to 68 of the Glasgow decision. In particular, he stated:

"36. Having considered at length the issues raised by this case, I conclude that I cannot accept the Council's assertion that the release of the information in question would prejudice substantially their commercial interests. As set out above, I have found no compelling evidence to suggest that such substantial prejudice has occurred as a direct result of release of this type of information under FOISA by other local authorities, and the Council has not presented sufficiently compelling evidence to demonstrate that their own circumstances would differ significantly in this respect."

It is to be noted that the second appellants had not been informed of the evidence gathered by the Commissioner's staff in connection with the Glasgow decision (or of the decision itself).

[26] In the light of this evidence, the Commissioner rejected the contention that the information was exempt, repeating mutatis mutandis paragraphs 69 and 72 of the Glasgow decision. He accordingly decided that the second appellants had not dealt with MacRoberts' request for information in accordance with Part 1 of the Act, and required them to supply the information requested to MacRoberts.

The relevant legislation

[27] It is convenient next to note the terms of the relevant legislation. Part 1 of the Act is concerned with access to information. Section 1 provides:

"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.

(2) The person who makes such a request is in this Part and in Parts 2 and 7 referred to as the 'applicant'.

(3) If the authority -

(a) requires further information in order to identify and locate the requested information; and

(b) has told the applicant so (specifying what the requirement for further information is),

then, provided that the requirement is reasonable, the authority is not obliged to give the requested information until it has the further information.

.........

(6) This section is subject to sections 2, 9, 12 and 14."

The term "information" is defined by section 73:

" 'information' (subject to sections 50(9) and 64(2)) means information recorded in any form".

Sections 50(9) and 64(2) provide a wider definition of "information" for the purpose of those sections (which are not directly concerned with requests for information under section 1), as including unrecorded information. Subject to those exceptions, therefore, information must be recorded in some form.

[28] Section 2 provides:

"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 -

(a) section 25;

(b) section 26;

(c) section 36(2);

(d) section 37; and

(e) in subsection (1) of section 38 -

(i) paragraphs (a), (c) and (d); and

(ii) paragraph (b) where the first condition referred to in that paragraph is satisfied by virtue of subsection (2)(a)(i) or (b) of that section."

Section 2(1) has the effect of disapplying section 1 in relation to certain information, and thus delineates the boundaries of the right conferred by that section. It means that where one of the provisions listed in subsection (2) applies to information, section 1 does not apply to that information; and, where another provision of Part 2 of the Act applies to information, section 1 applies to the information only where the public interest in disclosing the information is not outweighed by that in maintaining the exemption. In the present case, the Commissioner had to consider the possibility of exemption under section 25, which confers an absolute exemption, and under section 33, which confers an exemption only to the extent that the public interest requires.

[29] Section 8 provides:

"8 Requesting Information

(1) Any reference in this Act to 'requesting' information is a reference to making a request which -

(a) is in writing or in another form which, by reason of its having some permanency, is capable of being used for subsequent reference (as, for example, a recording made on audio or video tape);

(b) states the name of the applicant and an address for correspondence; and

(c) describes the information requested."

[30] Section 11 provides:

"11 Means of providing information

(1) Where, in requesting information from a Scottish public authority , the applicant expresses a preference for receiving it by any one or more of the means mentioned in subsection (2), the authority must, so far as is reasonably practicable, give effect to that preference.

(2) The means are -

(a) the provision to the applicant, in permanent form or in another form acceptable to the applicant, of a copy of the information;

(b) such provision to the applicant of a digest or summary of the information; and

(c) the provision to the applicant of a reasonable opportunity to inspect a record containing the information.

(3) In determining, for the purposes of subsection (1), what is reasonably practicable, the authority may have regard to all the circumstances, including cost; and where it determines that it is not reasonably practicable to give effect to the preference it must notify the applicant of the reasons for that determination......"

The implication of section 11(2)(c) is that information is something which can be contained in a record. That is consistent with the definition in section 73.

[31] Section 12 provides:

"12 Excessive cost of compliance

(1) Section 1 (1) does not oblige a Scottish public authority to comply with a request for information if the authority estimates that the cost of complying with the request would exceed such amount as may be prescribed in regulations made by the Scottish Ministers; and different amounts may be so prescribed in relation to different cases.

(2) The regulations may provide that, in such circumstances as they may specify, where two or more requests for information are made to the authority -

(a) by one person;

(b) by different persons who appear to it to be acting in concert or whose requests appear to have been instigated wholly or mainly for a purpose other than the obtaining of the information itself; or

(c) by different persons in circumstances where the authority considers it would be reasonable to make the information available to the public at large and elects to do so,

then if the authority estimates that the total cost of complying with both (or all) of the requests exceeds the amount prescribed, in relation to complying with either (or any) of those requests, under subsection (1), section 1(1) does not oblige the authority to comply with either (or any) of those requests."

[32] It is relevant, in view of the submissions in the present case, to note the terms of section 14:

"14 Vexatious or repeated requests

(1) Section 1(1) does not oblige a Scottish public authority to comply with a request for information if the request is vexatious.

(2) Where a Scottish public authority has complied with a request from a person for information, it is not obliged to comply with a subsequent request from that person which is identical or substantially similar unless there has been a reasonable period of time between the making of the request complied with and the making of the subsequent request."

[33] Section 15 provides:

"15 Duty to provide advice and assistance

(1) A Scottish public authority must, so far as it is reasonable to expect it to do so, provide advice and assistance to a person who proposes to make, or has made, a request for information to it.

(2) A Scottish public authority which, in relation to the provision of advice or assistance in any case, conforms with the code of practice issued under section 60 is, as respects that case, to be taken to comply with the duty imposed by subsection (1)."

[34] Section 20 enables an applicant who is dissatisfied with the way in which a public authority has dealt with a request for information to require the authority to review its decision; and the authority must carry out such a review and issue a notice in accordance with section 21(5) or (9).

[35] Section 23 provides:

"23 Publication schemes

(1) A Scottish public authority must -

(a) adopt and maintain a scheme (in this Act referred to as a 'publication scheme') which relates to the publication of information by the authority and is approved by the Commissioner;

(b) publish information in accordance with that scheme; and

(c) from time to time review that scheme.

(2) A publication scheme must specify -

(a) classes of information which the authority publishes or intends to publish;

(b) the manner in which information of each class is, or is intended to be, published; and

(c) whether the published information is, or is intended to be, available to the public free of charge or on payment."

[36] Part 2 of the Act is concerned with exempt information. Section 25 provides:

"25 Information otherwise accessible

(1) Information which the applicant can reasonably obtain other than by requesting it under section 1(1) is exempt information.

(2) For the purposes of subsection (1), information -

(a) may be reasonably obtainable even if payment is required for access to it;

(b) is to be taken to be reasonably obtainable if -

(i) the Scottish public authority which holds it, or any other person, is obliged by or under any enactment to communicate it (otherwise than by making it available for inspection) to; or

(ii) the Keeper of the Records of Scotland holds it and makes it available for inspection and (in so far as practicable) copying by,

members of the public on request, whether free of charge or on payment.

(3) For the purposes of subsection (1), information which does not fall within paragraph (b) of subsection (2) is not, merely because it is available on request from the Scottish public authority which holds it, reasonably obtainable unless it is made available in accordance with the authority's publication scheme and any payment required is specified in, or determined in accordance with, the scheme."

Section 25(3) does not readily yield its meaning, but becomes clearer if its clauses are put in a different order: information which does not fall within subsection (2)(b) is not reasonably obtainable by the applicant merely because the information is available on request from the public authority which holds it, unless it is made available in accordance with the authority's publication scheme and any payment required is specified in, or determined in accordance with, the scheme.

[37] Sections 26 to 41 define other categories of exempt information. They include information whose disclosure is prohibited by statute or Community law or would be a contempt of court (section 26), information whose disclosure would prejudice substantially relations between the United Kingdom Government and the Scottish Administration (section 28), information relating to the formulation of government policy (section 29), information whose disclosure would prejudice substantially the effective conduct of public affairs (section 30), information whose exemption is required for the purpose of safeguarding national security (section 31), information whose disclosure would prejudice substantially the United Kingdom's international relations (section 32), information whose disclosure would prejudice substantially commercial interests or the economy (section 33), information held for the purposes of certain investigations (section 34), information whose disclosure would prejudice substantially the administration of justice (section 35), information whose disclosure would be an actionable breach of confidence (section 36), court records (section 37), personal data (section 38), information whose disclosure would endanger a person's health (section 39), information whose disclosure would prejudice substantially the audit of public authorities' accounts (section 40), and information relating to communications with Her Majesty (section 41). In particular, section 33 provides:

"33 Commercial interests and the economy

(1) Information is exempt information if -

......

(b) its disclosure under this Act would, or would be likely to, prejudice substantially the commercial interests of any person (including, without prejudice to that generality, a Scottish public authority)."

[38] Part 3 of the Act establishes the office of the Commissioner. Part 4 is concerned with enforcement. In particular, section 47 provides:

"47 Application for decision by the Commissioner

(1) A person who is dissatisfied with -

(a) a notice given under section 21(5) or (9); or

(b) the failure of a Scottish public authority to which a requirement for review was made to give such a notice,

may make application to the Commissioner for a decision whether, in any respect specified in that application, the request for information to which the requirement relates has been dealt with in accordance with Part 1 of this Act.

(2) An application under subsection (1) must -

(a) be in writing or in another form which, by reason of its having some permanency, is capable of being used for subsequent reference (as, for example, a recording made on audio or video tape);

(b) state the name of the applicant and an address for correspondence; and

(c) specify -

(i) the request for information to which the requirement for review relates;

(ii) the matter which was specified under sub-paragraph (ii) of section 20(3)(c); and

(iii) the matter which gives rise to the dissatisfaction mentioned in subsection (1)."

In the present case, applications were made by MacRoberts under section 47(1), as we have explained.

[39] Section 49 provides:

"49 Commissioner's decision

(1) The Commissioner must make a decision in relation to an application made in accordance with section 47(1) unless -

(a) in the opinion of the Commissioner, the application is frivolous or vexatious; or

(b) in the opinion of the Commissioner, the application appears to have been withdrawn or abandoned.

(2) In a case where the Commissioner determines that subsection (1) does not require a decision to be made, that officer must give the applicant and the Scottish public authority in question notice in writing......

(3) In any other case, the Commissioner must -

(a) give that authority notice in writing of the application and invite its comments; and

(b) if no settlement has in the meantime been effected, reach a decision on the application before the expiry of four months after receiving it, or before the expiry of such other period as is reasonable in the circumstances.

......

(5) The Commissioner must give the applicant and that authority, within the time allowed by subsection (3), notice in writing (referred to in this Act as a "decision notice") of any decision under paragraph (b) of that subsection.

(6) Where the Commissioner decides that that authority has not dealt with a request for information in accordance with Part 1 of this Act, the notice under subsection (5) must specify -

(a) the provision of that Part with which the authority has failed to comply and the respect in which it has so failed;

(b) the steps which, in the opinion of the Commissioner, the authority must take to comply with the provision; and

(c) the time within which those steps must be taken."

The decisions which are the subject of the present appeals were taken in terms of section 49(3)(b). The appeals were brought under section 56, which provides a right of appeal against such a decision on a point of law.

[40] It is also relevant to note the terms of section 65(1):

"65 Offence of altering etc. records with intent to prevent disclosure

(1) Where -

(a) a request for information is made to a Scottish public authority; and

(b) the applicant is, under section 1, entitled to be given the information or any part of it,

a person to whom this subsection applies who, with the intention of preventing the disclosure by the authority of the information, or part, to which the entitlement relates, alters, defaces, blocks, erases, destroys or conceals a record held by the authority, is guilty of an offence."

That provision reflects the same distinction between information and records which we have noted elsewhere in the Act. There is no offence of altering information; but since the information to which section 1 applies is contained in records, it is an offence to alter records with the intention of preventing the disclosure of information.

[41] Finally, in relation to the legislation, it is relevant, in view of the submissions in the present case, to note the terms of section 69:

"69 Exercise of rights by children

(1) Where a question falls to be determined as to the legal capacity of a person who has not attained the age of sixteen years to exercise any right conferred by any provision of this Act, any such person is to be taken to have that capacity who has a general understanding of what it means to exercise the right.

(2) Without prejudice to the generality of subsection (1), a person who has attained the age of twelve years is to be presumed to be of sufficient age and maturity to have such understanding as is mentioned in that subsection."

The definition of information

[42] The first question raised in the Glasgow appeal is whether MacRoberts' e-mails to the first appellants were requests for information within the meaning of the Act. That is also the first question which ought to have been considered by the Commissioner. It is impossible to apply the Act correctly unless one has at the outset identified the information, within the meaning of the Act, which has been requested.

[43] As we have noted, section 1(1) of the Act creates an entitlement to be given information; and section 73 defines "information", for the purposes of section 1, as meaning "information recorded in any form". That terminology, which reflects that of the Freedom of Information Act 2000, was carefully chosen: most earlier freedom of information legislation in other jurisdictions confers a right of access to documents (as in the Commonwealth of Australia Freedom of Information Act 1982) or to records (as in the Canadian Access to Information Act 1982, the Irish Freedom of Information Act 1997 and the United States Freedom of Information Act 1966); and the New Zealand Official Information Act 1982, which requires "official information" to be made available on request, is not restricted to recorded information. The word "information" is itself of wide range, as has been emphasised by courts construing the New Zealand and Australian legislation (as, for example, in Commissioner of Police v Ombudsman [1988] 1 NZLR 385, R v Harvey
[1991] 1 NZLR 242 and Kwok v Minister for Immigration and Multicultural Affairs [2001] FCA 1444). The definition in section 73 is therefore wide in scope, but it is not unlimited. In the first place, it does not include unrecorded information. Secondly, it is implicit in the definition that a distinction is drawn between the record itself and the information which is recorded in it. That is consistent with section 11(2)(c), which implies that "information" is capable of being contained in a record. The distinction is also reflected in section 65(1) of the Act, which, as we have explained, makes it an offence to alter a record with the intention of preventing the disclosure of information. What a person can request, in terms of section 1(1), is the information which has been recorded, rather than the record itself. The right conferred by section 1, where it applies, is therefore to be given the information, rather than a particular record (or a copy of the record) that contains it. Put shortly, the Act provides a right of access to information, not documentation.

[44] In the present case, the requests were for copies of statutory notices: in the terminology of the Act, copies of records containing information, rather than the information itself. The request was, at best, somewhat ineptly expressed. The request was however drafted by solicitors, and might therefore be expected to have specified exactly what was desired. Counsel for the second respondents confirmed that the requests had been drafted advisedly: it was indeed copies of the notices which were wanted, rather than the information which they contained and which might also be obtainable from other records. The Commissioner might have sought clarification of whether what was actually sought was copies of the notices, or the information contained in the notices, but did not do so. Instead, as counsel for the Commissioner confirmed in their submissions, he proceeded on the basis that what had been requested was copies of the notices, that such requests fell within the scope of section 1, and that it would be insufficient for the first appellants to provide, in another form, the information which the notices contained. That approach was in our opinion mistaken.

[45] A number of arguments were advanced in support of the Commissioner's approach. The first was that it was inappropriate to introduce such fine distinctions when construing legislation of this kind, which was intended to afford a right to the general public. We cannot agree. We accept, of course, that the Act confers a right on the public at large, and that it should not be interpreted or applied in a manner which would render the exercise of that right impractical or unduly difficult. In particular, although there will be cases where the request is made by persons who can be expected to describe precisely what it is that they wish to receive (the present case, where the requests were made by solicitors on behalf of a commercial client, being a paradigm case), there will also be cases where requests are made by individuals who cannot be expected to express themselves with precision. Allowance has to be made for that possibility in the application of the Act; and that is reflected, in particular, in the duty placed upon public authorities by section 15 of the Act to provide advice and assistance to a person who proposes to make, or has made, a request for information. Section 1(3) is also relevant in that regard. Where the request does not describe the information requested, as required by section 8(1)(c), but refers to a document which may contain the relevant information, it may nonetheless be reasonably clear in the circumstances that it is the information recorded in the document that is relevant. If there is any doubt as to the information requested, or as to whether there is a valid request for information at all, the public authority can obtain clarification by performing its duty under section 15. That is reflected in the Code of Practice issued by Scottish Ministers under section 60 of the Act, in particular at paragraph 20. The importance of giving appropriate assistance to persons who have difficulty describing the information which they desire is not however inconsistent with the necessity of identifying precisely what that information is. Public authorities can only perform their duties under the Act correctly if they understand what information is requested. In the present case, for example, in order to decide whether the information requested was available under the first appellants' publication scheme, the Commissioner had to have clearly in mind whether the "information" in question was the copy notices (which were not available under the scheme, and which could not in any event be the subject of a valid request under the Act) or the information contained in the notices (which, as the Commissioner understood the position, was also contained in the PECs available under the scheme). Similarly, in order to decide whether the cost of compliance with the requests was excessive in terms of section 12(1), it was necessary to be clear as to whether the relevant "information" was the data extractable from the first appellants' database, as they assumed in their costings, or was copies of the notices themselves.

[46] A second argument, advanced primarily by counsel for the second respondents, was that a record of information was itself "information": if there were different records, there were necessarily different items of information. Thus, in the present case, if the same data could be found in the statutory notices, in the PECs and in the first appellants' computerised database, each of those records was itself a distinct item of information. That was reflected in the fact that some documents in which information was recorded might be of greater value than others in which the same information could be found. An original document, for example, could be more reliable than a copy.

[47] This argument is fallacious. As we have explained, the analytical framework of the Act is based on a distinction between information and records. Since "information" means information recorded in any form (section 73), and the information requested can be provided in different forms (sections 11(2)(a)), it is clear that the concept of "information" is independent of the particular form or forms in which information may be recorded. An electronic file, for example, is not different "information" from a hard copy of the file: each of them records the same information, in a different form.

[48] It is of course true that some records containing a given item of information may be more valuable for certain purposes than others. An original of a deed, for example, is often preferable for forensic purposes to a photocopy. It can even be said, in a certain sense, that the original deed is a source of information which cannot be found in the copy: information, for example, that the signature and the body of the deed originally formed part of a single document (whereas a photocopy might have been created by bringing together a signature and a deed which had originated in separate documents). Information of that nature is not however "recorded" in the original deed, but may rather be inferred from its physical characteristics. It is not, therefore, "information" within the meaning of the Act. The difference between the original and the copy, in other words, does not consist in any difference between the information recorded in each document: that information, if the copy is complete and accurate, will be identical.

Exemption under section 25
"Information"

[49] As we have explained, the first appellants' submissions to the Commissioner were based on the assumption that the information requested by MacRoberts was the information contained in the statutory notices, rather than copies of the notices themselves. On that assumption, the first appellants submitted that the information requested was available from PECs, which were obtainable under their publication scheme. Section 25(3) therefore applied, with the consequence that the information was exempt under section 25(1).

[50] In considering that contention, the Commissioner proceeded on the basis that the information contained in PECs was not materially different from the information contained in the copy notices requested by MacRoberts: that was a matter of concession, before us, by counsel for the Commissioner. It was also conceded that his decision could not be construed as having proceeded on any other basis. Plainly, if those concessions had not been made, this aspect of the case would have had to be considered on a materially different basis.

[51] We should record that counsel for the second respondents sought to argue that the information contained in statutory notices was not in fact derivable in its entirety from PECs, and that the Commissioner's decision, properly construed, proceeded on that basis. We declined to hear argument to that effect. Standing the Commissioner's concession as to the basis on which he had in fact proceeded, the second respondents' argument implied that the Commissioner had erred in fact; but the second respondents are not the appellants, and the appeal is in any event confined to a point of law. In so far as the second respondents wished to argue that the Commissioner's decision should be construed as proceeding on a different factual basis from the one on which it actually proceeded, such an argument would open up an additional ground of appeal, as counsel for the first appellants made clear, based on the inadequacy of the Commissioner's reasoning. We should add that the position of the second respondents in these proceedings is not in our view prejudiced by our refusal to entertain the argument on this point which they wished to advance. Their only interest in these proceedings, so far as we can see, is to uphold the decision of the Commissioner: their counsel was unable to identify any separate interest which they might possess.

[52] The first appellants' contention that the information was exempt under section 25(1) was rejected by the Commissioner primarily for the reason set out in paragraph 43 of the Glasgow decision, which we have already quoted. Counsel for the Commissioner confirmed that the only point being made in paragraph 43 was that copies of the statutory notices were not available under the publication scheme. It was, on the Commissioner's approach, beside the point that the information contained in the copy notices could also (as he understood matters) be derived from PECs. As we have explained, counsel for the Commissioner sought to defend this approach partly on the basis that copy documents were themselves "information" within the meaning of section 1 of the Act, and that that "information" was distinct from the information contained in the documents. For the reasons we have explained, that argument cannot be accepted. A further argument advanced on behalf of the Commissioner was based on section 11(1) of the Act. We shall consider that argument next.

Section 11

[53] Counsel for the Commissioner submitted that a person who requested information was entitled under section 11 to express a preference for receiving it by particular means, and the authority must, so far as reasonably practicable, give effect to that preference. If a person requested copy documents, that was an expression of a preference for a particular means of receiving the information, to which effect ought to be given. A request for copy documents therefore fell within section 11 of the Act, and was not satisfied by the provision, in another form, of the information contained in the copy documents. In considering the first appellants' claim for exemption under section 25, the Commissioner was therefore entitled to proceed on the basis that it was insufficient for them to make available under their publication scheme the information recorded in the notices rather than the copy notices themselves. Counsel's final position, on this aspect of the case, was that paragraph 43 of the Commissioner's decision was based on section 11, and reflected the fact that the first appellants had made no determination under section 11(3) that it was not reasonably practicable to give effect to MacRoberts' preference to receive copy notices.

[54] We cannot accept these contentions. We observe, in the first place, that section 11 has no application unless there is a request for "information" within the meaning of the Act. The Commissioner's argument cannot get off the ground unless the requests in the present case are treated as being in substance requests for the information recorded in the notices, with the reference to copy notices being treated as the expression of a preference as to the means by which that information should be provided.

[55] It is important to note, next, that section 25 is concerned with "information", not with the means by which the applicant would prefer to receive it. In considering the application of section 25, the Commissioner must therefore focus on the "information", properly understood, which has been requested: in this case, ex hypothesi, the information recorded in the notices.

[56] The next, and fundamental, point is that, where section 25 applies, section 1 is disapplied by virtue of section 2. If section 25 applies, therefore, the applicant is not entitled to be given the information. Section 11, which concerns the means by which the information is provided to the applicant, is accordingly inapplicable. It follows that the applicant's preference as to the means by which the information should be provided is beside the point when considering the possibility of exemption under section 25. Put more shortly, if section 25 is applicable, it follows that section 1 is not; and the matter with which section 11 is concerned does not arise. Section 11 cannot therefore be assumed to apply when deciding whether section 25 is applicable.

[57] We are not in any event persuaded that a request for a copy of a specific document would fall within the scope of section 11. It is unnecessary for us to reach a concluded opinion upon this point, but since we had the benefit of careful argument we shall express our view upon the submissions which we heard. The Commissioner's contention was that such a request fell within the ambit of section 11(2)(a): it could be regarded as the expression of a preference for "the provision to the applicant, in permanent form or in another form acceptable to the applicant, of a copy of the information". We are not convinced that that is a correct interpretation of section 11. The section is concerned with the means of providing information, and enables the applicant to express a preference for one of three means: to be provided with a copy of the information (section 11(2)(a)), to be provided with a digest or summary of the information (section 11(2)(b)), or to be given an opportunity to inspect a record containing the information (section 11(2)(c)). When section 11(2)(a) refers to the "form" in which a copy of the information may be provided, it appears to us to have in mind such possible forms as electronic files, paper documents, audio or video tapes, or verbal communication. That is consistent with the sense in which the word "form" is used elsewhere in the Act (eg. in sections 8(1)(a) and 47(2)(a)). MacRoberts understood the provision correctly when they said, under reference to section 11, that they would prefer to receive the information in electronic form, failing which a hard copy. They did not ask to receive the information in the form of copies of the statutory notices: on the contrary, the copies of the notices were the "information" which they purportedly sought, and the form in which they wished to receive it was in electronic files or hard copies. If the information sought had been the information contained in the notices - the hypothesis on which the Commissioner's submission on this matter was based - section 11 would have entitled MacRoberts to ask for an electronic or hard copy of that information, but not, as it presently appears to us, for copies of specific documents in which the information was recorded. The applicant can select from the three options listed in section 11(2); and those options do not include the provision of a copy of a specified document.

"Reasonably Obtainable"

[58] Two further matters were discussed before us in relation to section 25. In view of our conclusion that the Commissioner erred fundamentally in his identification of the relevant information, and in his misapplication of section 11, these matters are not critical to our decision. It is right however that we should express our view upon them, as they were fully argued and will be relevant to any reconsideration of MacRoberts' requests. These matters concern the additional reasons that the Commissioner gave for rejecting the claim for exemption, in paragraphs 44 and 45 of the Glasgow decision. In that part of his decision, read with paragraph 46, the Commissioner appeared to be saying that, even if the provision of PECs rather than copy notices could in principle have fulfilled MacRoberts' request, the information was not obtainable by that means, since it would be necessary to purchase PECs under the publication scheme for every property in Glasgow, at an enormous cost. In that regard, the Commissioner commented that, since most properties were not subject to statutory notices, the majority of the PECs would be of no interest to MacRoberts.

[59] On behalf of the first appellants, it was submitted in the first place that if information is made available in accordance with a publication scheme, then it is deemed to be reasonably obtainable. That submission appears to us to be correct. As we have already observed, section 25(3) is not a model of clarity. The category of information to which it applies is described by identifying what it is not ("information which does not fall within paragraph (b) of subsection (2)"). The proposition which applies to that category of information is then expressed in the form of a negative: it "is not merely because it is available on request..., reasonably obtainable unless" a specified condition is satisfied. The implication is that information which is available on request is reasonably obtainable where that condition is fulfilled. The condition is that the information "is made available in accordance with the authority's publication scheme and any payment required is specified in, or determined in accordance with, the scheme." If the condition is fulfilled, the Commissioner has no discretion to hold that, nevertheless, the information is not reasonably obtainable: the legislation proceeds on the basis that the role of the Commissioner in approving publication schemes (under section 23(1)(a)) is a sufficient guarantee that the information will be reasonably obtainable. Where a publication scheme operates in accordance with the Act, no further evaluation of whether the information is reasonably obtainable is necessary or appropriate. The cost of obtaining the information under the scheme, in particular, is of no relevance to exemption by virtue of section 25(3). In so far as the Commissioner proceeded on the basis that the cost of obtaining information which was made available in accordance with a publication scheme had a bearing on whether the information was to be taken as being reasonably obtainable, that was in our opinion a mistaken approach. Equally, the fact that it might be difficult to isolate or collate specific information requested from the larger mass of information which was made available under the publication scheme, and in which it was included, does not appear to us to be relevant under section 25(3). A practical difficulty of that kind might well be relevant where exemption depended solely on section 25(1), since it would bear on the question whether the information requested was "reasonably obtainable". Where section 25(3) is applicable, on the other hand, information which is made available in accordance with a publication scheme is deemed to be reasonably obtainable, as we have explained. One cannot, in our view, interpret the concept of "availability" in section 25(3) as including considerations of practicality of the kind which would be relevant to the question arising under section 25(1) as to whether the information was "reasonably obtainable" (such as whether the information was catalogued and indexed, or whether there was an on-line search facility, or whether there were difficult access conditions), without undermining the relationship between subsections (1) and (3), and the status of approved publication schemes.

[60] We acknowledge that, on the approach which we have adopted to the construction of these provisions, the fact that information has been made available under a publication scheme does not necessarily mean that it is in fact reasonably obtainable by a particular applicant: there are many forms of disadvantage (such as limited linguistic skills, educational or economic disadvantage, or disability) which may render it difficult for a particular individual to obtain information which has been made available under a publication scheme. In particular, if a specific item of information is available for purchase only in a format which is not tailored to the needs of an applicant who is interested only in that particular item (if, for example, it is available only as part of a larger package), then it is possible that the cost of obtaining that item of information may be relatively high. Considerations of that kind have to be borne in mind by public authorities when designing publication schemes and by the Commissioner when approving them, but it may be unavoidable that a publication scheme caters better for the needs of some applicants than for those of others. Where, for example, a public authority holds a large database or archive of information which is to be the subject of a publication scheme, decisions have to be taken about the form of the scheme, including a decision as to whether the archive is to be made available as a whole, leaving individual users to search for the items which interest them, or whether specific items are to be made available on an individual basis. Such decisions may reflect a consideration of the likely interests of members of the public, the level of revenue which may be obtainable, and the cost of establishing and maintaining a scheme in a given form. Whether it is reasonable to expect a public authority to provide a specific item of information under a publication scheme, rather than access to an archive or collection of items of information, is thus liable to depend on the circumstances. Whether the scheme proposed by the public authority is in a form which is appropriate to particular circumstances is a matter for the Commissioner to consider before giving it his approval under section 23(1)(a). The possibility that circumstances may change is reflected in the duty of the public authority to review the scheme from time to time in accordance with section 23(1)(c).

[61] In the present case, it appears that the Commissioner approved a publication scheme under which information relating to statutory notices, planning applications and the like was to be available for purchase in the form of PECs. The scheme was presumably devised on the assumption that members of the public would normally be interested in such information in respect of specific properties which they had it in mind to purchase or lease. The form of the scheme is therefore one under which a certificate can be purchased in respect of a specific property, providing information about the notices (and other relevant information), if any, relating to that property. Those who devised the scheme, and the Commissioner when he approved it, are unlikely to have had in mind the possibility that a commercial search company would wish to obtain the entirety of all such information in order to establish its own business in selling PECs. The pricing structure of the scheme, in particular, does not apparently enable that to be done at a cost which is commercially feasible. Nevertheless, if all the information requested is in the public domain, being obtainable by purchasing PECs, as the Commissioner considered, then the argument that the information has been made available in accordance with the scheme appears to us to be persuasive.

"The applicant"

[62] The final matter raised in relation to section 25 concerned the possibility of exemption under section 25(1), on the assumption (contrary to our conclusion) that section 25(3) was inapplicable. It was common ground that, having rejected the first appellants' contention that the information was exempt by virtue of section 25(3), the Commissioner had gone on to consider whether, in any event, the information could reasonably be obtained by the applicant other than by a request under section 1, and was therefore exempt under section 25(1). The Commissioner had considered that question in paragraphs 44 and 45 of his decision. It was common ground that, in considering that question, the Commissioner had ignored the fact that the requests had been made by solicitors acting on behalf of the second respondents, who were (as the correspondence indicated) a commercial search company in the business of searching records and selling PECs and other records of information.

[63] Against that background, it was submitted on behalf of the first appellants that, since section 25(1) exempts information which "the applicant" can reasonably obtain other than by requesting it under section 1(1), the Commissioner ought to have had regard to the nature and characteristics of the particular applicant. The Commissioner had therefore erred in the present case by ignoring the fact that the nominal applicant was merely an agent, and disregarding the characteristics (including the expertise and resources) of the person on whose behalf the information was sought. Like other search companies, the second respondents were able to obtain the information they required by purchasing PECs or by searching the public records to which the Commissioner referred in paragraph 72 of his decision. On behalf of the Commissioner, on the other hand, it was submitted that the circumstances of an individual applicant were irrelevant to section 25(1), unless the applicant suffered from some particular disadvantage or disability which had the consequence that he, unlike other persons, could not reasonably obtain the information in question other than by a request under section 1.

[64] Section 25(1) applies to "information which the applicant can reasonably obtain otherwise than by requesting it under section 1(1)". The thinking behind the exemption appears to be that if there is another means by which the applicant can reasonably obtain the information, there is no need for the Act to provide him with the means of access to it. Section 25(2)(a) makes it clear that information may be reasonably obtainable even if payment is required for access to it; but it is to be taken to be reasonably obtainable only in the particular circumstances specified in section 25(2)(b) and (3). Accordingly, there may be cases where a judgment has to be made as to whether, as a matter of fact, the information can reasonably be obtained by "the applicant". In that regard, section 25(1) can be considered along with section 15, which places public authorities under a duty to provide advice and assistance to a person who proposes to make, or has made, a request for information. An applicant who has an alternative means of obtaining the information should not therefore be left in doubt as to how to go about it.

[65] It was not disputed by the Commissioner that, in deciding whether the applicant can reasonably obtain information by other means, it can sometimes be necessary to take account of the nature and characteristics of the particular applicant: for example, if the applicant is disabled or does not understand English, then it may be that information which could reasonably be obtained by most persons cannot be so obtained by the applicant in question. We do not doubt that such factors as these may be relevant: there are indeed many forms of disadvantage that may prevent information from being reasonably obtainable in an individual case. If that is so, however, then we are at a loss to understand why account should not equally be taken of circumstances which render information more accessible to the applicant than it is to the general public.

[66] In that regard, reference was made in submissions to the guidance provided by the Ministry of Justice in relation to section 21 of the 2000 Act, in its Freedom of Information Guidance Series, published in 2008. This states:

"The test for the application of section 21 is whether information is reasonably accessible to the particular applicant who has requested it. This 'personalisation' of the test is unusual in Freedom of Information Act terms, and needs to be considered with some care. You may need to communicate with the applicant to establish any characteristics that might be relevant.

It means that although information might not be reasonably accessible to the wider public, if the specific applicant making the request has reasonable access to it then the information will be exempt in relation to the applicant. This might not be the same for other applicants."

Some examples are given of factors which might be relevant, including the following:

"

·      any legal access schemes or rights which are available to that particular applicant. If, for example, a person is obliged by law (an enactment) to provide the applicant - as opposed to the public - with the information requested then it is likely to be 'readily accessible' to the applicant unless some feature of the access scheme indicates otherwise. For example section 3 of the Access to Health Records Act 1990 provides that the holder of a health record shall allow access to the health record of a deceased person on application by that person's personal representative by supplying the applicant with a copy or extract if so required (amongst other things);

·     any qualities, qualifications or other entitlements the applicant may have which give access to otherwise closed or private sources of information - for example membership of a university library, or of a society or profession; and/or

·     any enhanced skills or resources the applicant may have which would bring otherwise inaccessible information within his reach - for example research, technical or linguistic skills. The resources available to a requestor who is a Member of the Scottish Parliament were taken into account in HM Treasury v ICO [HM Treasury v Information Commissioner (7 November 2007) (EA/2007/0001)]."

We note that, in addition to the decision of the Information Tribunal in the HM Treasury case mentioned in the guidance, which concerned section 16 of the 2000 Act (equivalent to section 15 of the 2002 Act), the same approach can also be seen in the Tribunal's decision in the case of Ames v Information Commissioner (24 April 2008)(EA/2007/0110), which concerned section 21 of the 2000 Act.

[67] Counsel for the Commissioner submitted that this guidance was incorrect. It appears to us however to reflect the terms of section 21 of the 2000 Act, and to be equally valid in relation to section 25 of the 2002 Act. In relation to the first factor mentioned in the guidance, for example, there are numerous classes of information to which certain persons, but not others, have a right of access under the common law or legislation, quite apart from the 2002 Act. To ignore the existence of such rights would defeat the object of section 25(1).

[68] In the present case, the Commissioner was aware, by the date of his decision, that the request for information had been made by MacRoberts on behalf of the second respondents, who were a private search company. He had been informed by the first appellants that other such companies acquired the information they required by purchasing PECs or by inspecting published minutes. He had concluded from his own investigations, as he noted at paragraph 72 of his decision, that "most, if not all, of the core information sought by MacRoberts' client is currently obtainable through access to publicly accessible registers and minutes of relevant Council meetings", and that it was this "freely and publicly available" information which formed the principal basis of the PECs produced by other private search companies. In these circumstances, the fact that MacRoberts were acting on behalf of a client, and the nature and characteristics of that client, were in our view relevant to the Commissioner's consideration of the claim for exemption under section 25(1), and it was a mistake for the Commissioner, as a matter of principle, to close his eyes to those matters.

[69] We should make it clear that that was an error in the particular, and somewhat unusual, circumstances of the Glasgow case, where there was information before the Commissioner which should have alerted him to the fact that the applicant was in a materially different position from the general public. We do not suggest that the Commissioner is under a general obligation to make enquiries about applicants.

The identity of the applicant

[70] Arising out of the submissions which we have just discussed, counsel for both appellants presented a further submission that there had been no valid request for information under the Act, since the requests had been made by an agent acting on behalf of an unidentified client. Since section 25(1) required the nature and characteristics of the particular applicant to be considered, it was essential that the request should disclose the identity of the applicant. The same conclusion also followed from section 14(2), which applied where "a request from a person" was followed by "a subsequent request from that person" which was identical or substantially similar. These provisions highlighted the importance of section 8(1)(b), which imposed a requirement that the request must state the name of the applicant (a requirement which was repeated, in relation to applications to the Commissioner, in section 47(2)(b)). Where an application was made by an agent, it was the principal who should be regarded as the true applicant for the purposes of the Act: otherwise, section 14(2) could readily be circumvented and section 25(1) could not be operated as the Scottish Parliament must have intended. To treat the principal as the applicant was also correct under the law of agency. In any event, even if the agent were to be regarded as the applicant, the identity of the principal must be disclosed.

[71] On behalf of the Commissioner, on the other hand, it was submitted that an elaborate approach to the construction of the Act should be avoided. Reliance was placed on an observation made by Lord Hope of Craighead in Common Services Agency v Scottish Information Commissioner 2008 SC (HL) 184 at paragraph 4:

"There is much force in Lord Marnoch's observation in the Inner House that, as the whole purpose of FOISA is the release of information, it should be construed in as liberal a manner as possible."

On the Commissioner's construction of section 25, the identity of the applicant was of only limited importance. Section 1(2) defined the term "applicant" as referring to "the person who makes such a request", viz a request for information. In practice, the Commissioner treated the principal as the applicant in cases where the principal was named in the request, but otherwise treated the agent as the applicant. It was acknowledged that the Commissioner's approach lent itself to "manipulation".

[72] These contentions raise a question which might be regarded as logically antecedent to the issues which we have discussed in relation to sections 11 and 25. We have however postponed consideration of it until this point, as it depends in part upon the construction of section 25.

[73] We observe at the outset that the passage cited from the Common Services Agency case does not have any direct bearing on this matter, which is not concerned with the liberality of the release of information under the Act. That passage must in any event be read in its context, which includes the remainder of the paragraph in question. We also note the observations of Lord Rodger of Earlsferry in the same case, at paragraph 68.

[74] Section 1(2) does not resolve the matter: it merely informs the reader that the term "applicant" refers to the person who makes the request. In a case where the request is made by an agent acting on behalf of his principal, the question is which of them should be regarded for the purposes of the Act as having made the request. It is necessary to look elsewhere in the Act to find pointers towards the answer to that question.

[75] It is clear from the Act that the identity of the applicant is relevant to the application of certain provisions. In addition to sections 14(2) and 25(1), the identity of the person making the request is also relevant to the application of the provisions concerned with the aggregation of costs, in section 12(2) of the Act and the relevant regulations (the Freedom of Information (Fees for Required Disclosure)(Scotland) Regulations 2004, SSI 2004 No 467). Knowledge of the applicant's identity may also be relevant in considering whether a request is vexatious and therefore falls within the scope of section 14(1). Reference might also be made to section 38, which is concerned with personal information, and is based on a distinction between requests for such information which are made by the person to whom the information relates (the "data subject") and requests by third parties. Section 38(1)(a), in particular, confers an absolute exemption in respect of "personal data of which the applicant is the data subject". In a case in which the request is made by an agent acting on behalf of another person, section 38(1)(a), like sections 12(2), 14(1) and (2) and 25(1), can only operate effectively if the "applicant" in such a situation is taken to be the person on whose behalf the request has been made. In addition to these provisions, the identity of the applicant may also be relevant when considering, under section 39, whether the disclosure of information would be likely to endanger the health and safety of an individual. It is also apparent from section 69 that questions may arise under the Act as to the legal capacity of a person who seeks to exercise the right of access under section 1(1): a question which has arisen in other jurisdictions with freedom of information legislation (as in Wallace v Health Commissioner of Victoria [1985] VR 403, a decision of the Supreme Court of Victoria). It would seem absurd, in a case where a request was made by an agent acting on behalf of an incapax, to determine the question by assessing the capacity of the agent rather than that of the person on whose behalf he was acting. In short, several of the provisions of the Act can only operate sensibly and effectively, and as the Scottish Parliament must therefore be taken to have intended, if the applicant, in a case where the request is made by an agent acting on another person's behalf, is taken to be the person on whose behalf it is made.

[76] There does not appear to us to be anything surprising about that conclusion. On the contrary, as in many other statutory contexts where applications can be made to public authorities, it appears to us that one would expect, in the absence of any indication to the contrary , that the application could be made either by the applicant in person or by an agent (such as a solicitor) acting on behalf of the applicant: qui facit per alium facit per se.

[77] In the present case, as we have explained, the purported requests stated that they were made on behalf of an unnamed client. In our opinion, the true applicant in that situation was the client, who should therefore have been named in accordance with section 8(1)(b). In view of the potential importance of the identity of the applicant to the operation of the Act, as we have explained, compliance with section 8(1)(b) must, in our view, be regarded as an essential requirement of a valid request under the Act. It follows that, on that ground also (as well as by reason of not requesting "information" within the meaning of the Act), the purported requests were not valid requests under the Act.

[78] In reaching that conclusion, we do not intend to suggest that purported requests which are technically deficient in such respects as these should be refused out of hand. It would ordinarily be reasonable in such circumstances, at least as a matter of good practice (and arguably as required by section 15), for a public authority which received such a request to advise the agent of the relevant requirements of the Act, so that the deficiency might be cured. In the present case, of course, MacRoberts's failure to disclose their client's name was deliberate.

Procedural fairness

[79] It was submitted on behalf of both appellants that the Commissioner's decision in each case, so far as relating to section 33(1)(b), was vitiated by procedural unfairness. Neither appellant had been provided with any information about the Commissioner's investigations or their results. No opportunity had been afforded to them to respond to the Commissioner's findings and to explain why the situation of other local authorities might be different from their own. It was plain that the evidence obtained by the Commissioner's staff had been critical to the Commissioner's decision in each case. In each decision, the Commissioner referred to the position in other (unspecified) local authorities, and stated that the appellant had presented no information which demonstrated that their own circumstances would differ significantly (paragraph 69 of the Glasgow decision; paragraph 36 of the Dundee decision). The appellants had not been given any opportunity to present such information, nor could they do so without knowing which other local authorities were being used as comparators.

[80] On behalf of the Commissioner, it was conceded that he was under a duty to act fairly. It was however argued that the Commissioner's functions did not involve any interests of such gravity that the court should be astute to impose procedural requirements. Any procedural unfairness had made no difference. The first appellants had been informed of MacRoberts' contentions about other local authorities, prior to the Commissioner's investigation, and had not responded. The decision in the Dundee case would have been the same in any event.

[81] In considering these submissions, it is appropriate to recall the speech of Lord Mustill, in which all the other members of the House concurred, in R v Secretary of State for the Home Department, ex parte Doody [1994] 1 AC 531 at page 560:

"What does fairness require in the present case? My Lords, I think it unnecessary to refer by name or to quote from, any of the often-cited authorities in which the courts have explained what is essentially an intuitive judgment. They are far too well known. From them, I derive that (1) where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances. (2) The standards of fairness are not immutable. They may change with the passage of time, both in general and in their application to decisions of a particular type. (3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects. (4) An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken. (5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both. (6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer."

[82] As Lord Mustill made clear, what fairness demands is dependent on the context; and an essential feature of the context is the statute under which the decision maker is acting. The starting point in the present case must therefore be the Act itself. When the Commissioner receives an application under section 47(1) in relation to which section 49(1) requires a decision to be made, he is obliged by section 49(3) to give the authority notice in writing of the application and invite its comments. The principle of audi alteram partem is thus written into the Act. We do not doubt that it is open to the Commissioner to go beyond the procedural steps required by section 49, and in particular, as in the present case, to consider additional submissions by the applicant and to carry out his own investigations. Having regard however to section 49(3) in particular, we consider that if the Commissioner proposes to consider additional submissions by the applicant, or to carry out his own investigations, he must give the authority notice of any relevant material adverse to their position and invite their comments. Compliance with such an obligation will not impose an unreasonable burden on the Commissioner, and is liable to improve the quality of his decisions as well as ensuring their fairness. It is certainly not disproportionate to the importance of the interests which may be involved, which, contrary to the submission made on behalf of the Commissioner, may be of considerable significance. In that regard, it is only necessary to recall the nature of some of the exemptions conferred by Part 2 of the Act.

[83] In the Dundee case, it is clear that the second appellants were given no notice of the material discovered by the Commissioner as a result of his investigations, and had no opportunity to comment upon it. It is equally clear that that material had a significant bearing on the Commissioner's decision. That is apparent, in particular, from the second sentence of paragraph 31 and the second sentence of paragraph 36. The unfairness of the procedure cannot be doubted.

[84] The position is less clear-cut in the Glasgow case, since the first appellants were given notice of the gist of the additional submissions made by MacRoberts, were afforded an opportunity to respond, and did not do so. They were not, however, given notice of the material discovered by the Commissioner as a result of his investigations, and they had no opportunity to comment upon it. It is clear that that material had a significant bearing on the Commissioner's decision, as is apparent from paragraphs 69 and 72. In the circumstances, to adopt the expression used by Lord Russell of Killowen in Fairmount Limited v Secretary of State for the Environment [1976] 1 WLR 1255 at page 1266, the first appellants have not had a fair crack of the whip.

Section 12

[85] It is necessary finally to consider the first appellants' submissions in relation to the Commissioner's decision, in the Glasgow case, that the cost of complying with the request would not be excessive in terms of section 12 of the Act and the relevant regulations. The short point made on behalf of the first appellants was that the information which they had provided in relation to costs had been based on the premise that the "information" to be provided was the information contained in the statutory notices: not copies of the notices themselves. The costs about which they had provided information had therefore been those which related to extracting the relevant data: they had provided no information about the cost of copying and redacting the notices themselves. That must have been evident to the Commissioner. In these circumstances, the Commissioner had acted irrationally in proceeding on the basis that compliance with the request required the provision of copy notices, and at the same time addressing the issue arising under section 12 on an entirely different basis. In response, counsel for the Commissioner submitted that, in the correspondence relating to section 12, the first appellants and the Commissioner's staff appeared to have been at cross-purposes. Nevertheless, it was submitted, the Commissioner was only required to take into consideration the material which the first appellants placed before him. He had done so.

[86] In their letter to the Commissioner's staff dated 22 July 2005 the first appellants submitted that the cost of complying with the request would be excessive. The figures set out in that letter were estimates of the cost involved in establishing a system which would enable them to extract from a database the information contained in the notices, and then to provide that information to MacRoberts. In response to a request from the Commissioner's staff for further details, the first appellants provided additional information, on the same basis, on 8 June 2006. On 29 June 2006 the Commissioner's staff sought further information relating to the cost of "responding to MacRoberts' information requests". The information sought was concerned with the details of the first appellants' estimates: the Commissioner's staff did not question the premise on which the estimates were based, namely that the first appellants could respond to the requests by providing the information held in the database. The first appellants duly provided further information on that basis. On the approach adopted by the Commissioner in his decision - that compliance with the request required the provision of copies of the relevant notices - all of the information provided by the first appellants about costs was immaterial. Far from being alerted to the fact that the information about costs which they had initially provided to the Commissioner was (on his approach) irrelevant, the first appellants were led further up the garden path by the requests made by the Commissioner's staff for further, equally irrelevant, information.

[87] In our opinion the Commissioner's decision can be characterised as irrational, in so far as it dealt with the contentions in relation to section 25 on one basis - namely, that compliance with the requests required the provision of copy notices - and with the contentions in relation to section 12 on an entirely different, and inconsistent, basis: namely, that the relevant costs were those involved in providing information extracted from a database. It may be that the decision could also be criticised, in relation to this matter, in terms of procedural fairness; but since that was not an issue raised by the first appellants in relation to this aspect of the case, we need not consider it.

Conclusions

[88] We can summarise our conclusions as follows:

1. The requests were invalid in that they were not requests for "information" within the meaning of the Act.

2. The requests were in addition invalid in that they did not disclose the name of the applicant, namely the second respondents.

3. The Commissioner erred in reaching his decisions on the basis that copies of statutory notices constituted "information" within the meaning of the Act.

4. The Commissioner erred in reaching his decision in the Glasgow case on the basis that a preference expressed by the applicant in terms of section 11 was relevant to the application of section 25.

5. We question whether, in any event, a request for copies of specified documents falls within the scope of section 11, but we do not require to express a concluded opinion on the point.

6. The Commissioner further erred, in relation to section 25, in failing to proceed on the basis that information which is made available in accordance with an authority's publication scheme, any payment required being specified in, or determined in accordance with, the scheme, is deemed to be reasonably obtainable.

7. The Commissioner further erred, in relation to section 25(1), in failing to take into consideration the nature and characteristics of the applicant.

8. The Commissioner failed to comply with his duty to act fairly in reaching his decisions, in relation to section 33(1)(b), in both the Glasgow case and the Dundee case.

9. The Commissioner's decision in the Glasgow case was, in addition, irrational in that it dealt with the contentions in respect of section 12 and section 25 on inconsistent bases.

[89] In these circumstances, both appeals must be allowed.