Commissioner’s Approach not in Breach
In May 2010, a Mr Irvine made requests under the 2002 Act for information from South Lanarkshire Council. He wanted to know how many of their employees in a particular post were placed at 10 particular points on the Council’s pay scales. His underlying purpose was to find out whether the Council’s pay gradings favoured work traditionally done by men. He did not want to know the names of the employees concerned. The Council refused his request on the ground that to comply with it would contravene the Data Protection Act 1998 (DPA). Mr Irvine complained to the Scottish Information Commissioner who investigated and decided that the information should be disclosed. The Council appealed unsuccessfully to the Inner House of the Court of Session and now appealed to the Supreme Court.
Held: The appeal failed. The Commissioner had been entitled to reach his conclusion that disclosure of the information should be given by the Council to Mr Irvine, and that there had been no breach of the rules of natural justice in not copying the correspondence to the Council.
‘The word ‘necessary’ has to be considered in relation to the processing to which it relates. If that processing would involve an interference with the data subject’s right to respect for his private life, then the Austrian Radio case is clear authority for the proposition that the requirements of article 8(2) of the European Convention on Human Rights must be fulfilled. However, that was a case about article 7(e), where there is no express counterbalancing of the necessary processing against the rights and interests of the data subject. In a case such as this, where that balance is built into article 7(f) and condition 6, it may not matter so much where the requirements of article 8(2) are considered, as long as the overall result is compliant with them. ‘
Lady Hale, Deputy President, Lord Kerr, Lord Wilson, Lord Reed, Lord Carnwath
UKSC 2012/0126,  UKSC 55, 2013 GWD 25-508,  1 CMLR 17,  WLR(D) 307,  4 All ER 629, 2014 SC (UKSC) 1, 2013 SLT 799,  IRLR 899,  1 WLR 2421,  Eq LR 1006
Bailii, Bailii Summary, SC Summary, SC, WLRD
Freedom of Information (Scotland) Act 2002, Data Protection Act 1998
Cited – Common Services Agency v Scottish Information Commissioner HL 9-Jul-2008
An MP had asked the Agency under the 2002 Act for details of all incidents of childhood leukaemia for both sexes by year from 1990 to 2003 for all the DG (Dumfries and Galloway) postal area by census ward. The Agency replied by saying that the . .
Cited – Rechnungshof v Osterreichischer Rundfunk and others ECJ 20-May-2003
ECJ Protection of individuals with regard to the processing of personal data – Directive 95/46/EC – Protection of private life – Disclosure of data on the income of employees of bodies subject to control by the . .
Cited – Huber v Bundesrepublik Deutschland (European Citizenship) ECJ 3-Apr-2008
ECJ An Austrian businessman who had moved to Germany complained that storing data relating to him in a central register of foreign nationals discriminated against him as there was no such database for German . .
Cited – Corporate Officer of the House of Commons v The Information Commissioner and others Admn 16-May-2008
Applicants had sought disclosure of information supplied by members of Parliament in support of expenses claims. The Office appealed against an order from the Commissioner to produce that information, saying that the actions of Parliament are not . .
Cited – Regina v Secretary of State For Employment Ex Parte Seymour-Smith and Another (No 2) HL 17-Feb-2000
Although fewer men were affected by the two year qualifying period before becoming entitled not to be dismissed unfairly, the difference was objectively justified by the need to encourage employers to take staff on, and was not directly derived from . .
Cited – Homer v Chief Constable of West Yorkshire Police SC 25-Apr-2012
The appellant had failed in his claim for indirect age discrimination. Approaching retirement, he complained that new conditions allowing advancement to graduates only, discriminated against him since he could not complete a degree before retiring. . .
Cited – Regina v Secretary of State for the Home Department ex parte Doody and Others HL 25-Jun-1993
A mandatory lifer is to be permitted to suggest the period of actual sentence to be served. The Home Secretary must give reasons for refusing a lifer’s release. What fairness requires in any particular case is ‘essentially an intuitive judgment’, . .
Cited – The Christian Institute and Others v The Lord Advocate SC 28-Jul-2016
(Scotland) By the 2014 Act, the Scottish Parliament had provided that each child should have a named person to monitor that child’s needs, with information about him or her shared as necessary. The Institute objected that the imposed obligation to . .
Lists of cited by and citing cases may be incomplete.
Information, Employment, Natural Justice
Updated: 11 November 2021; Ref: scu.513678