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Dumfries & Galloway Council v. Kevin Dunion, Scottish Information Commissioner [2008] CSIH 12

Wed, 13 Feb 2008 10:20:00 GMT

Appeal under section 56 of the Freedom of Information (Scotland) Act 2002 against a decision of the Respondent dated 21 November 2006:- On 9 February 2005 the applicant, Mr. Reid, made a request, under section 8 of the FOISA, for details of any complaints lodged in the previous ten years against any or all of a named company, any named directors of the company, and any named employee of the company. The Council's response was to issue a refusal notice dated 9 March 2005, referring inter alia to the exemptions from disclosure provided by section 35 of FOISA and Part 9 of the Enterprise Act 2002. Thereafter the applicant applied for the Commissioner's decision on 15 August 2005. The Commissioner found that the Council failed to deal with the applicant's request for information in accordance with Part 1 of FOISA. In particular, he concluded that the Council misapplied section 26(a) and section 35(1)(g) of FOISA to the information withheld and therefore failed to deal with the application properly in terms of section 1(1) of FOISA. He required the Council to supply to the applicant the information he had requested, within two months of the date of receipt of his decision. Under sections 1(1) and 2(1) of FOISA, the applicant is entitled to be given that information unless it is information that is exempt from disclosure under a provision of Part 2. It may either be exempt absolutely (section 2(1)(a)) or be exempt if the public interest in disclosure is outweighed by the public interest in non-disclosure (section 2(1)(b)). Sections 2(2)(b) and 26 provideds that information is exempt absolutely if its disclosure by a Scottish public authority is "prohibited by or under an enactment". Here counsel for the Council submitted that the information requested by the applicant was exempt absolutely because disclosure was prohibited by Part 9 of the Enterprise Act. Here the court considered whether either section 237(6) or section 241(1) of the Enterprise Act created an absolute exemption under section 2 of FOISA.

The Scottish Ministers v. Russell Stirton & Alexander Anderson [2008] CSOH 20

Wed, 06 Feb 2008 18:22:00 GMT

Petition for an Interim Administration Order in terms of the Proceeds of Crime Act 2002and for Warrant for Inhibition and Arrestment:- An interim administration order was made on 3 February 2005 under section 256 of the Act. The court appointed LR as interim administrator and gave her certain powers as regards the conduct of that interim administration. LR has proceeded since then to act as interim administrator and in the process has inter alia seized property identified in the order and made investigations with a view to identifying what property is recoverable property within the meaning of the Act. She has reported on an interim basis on at least two occasions but has not yet produced a final report. The first and thirteenth respondents have failed so far to co-operate with her. On 27 August 2007 the respondents enrolled a motion in the following terms:- "In terms of section 260(3) of the Proceeds of Crime Act 2002. To recall the interim administration order ab initio in that there was a serious default in the petitioners' application ... in that the petitioners knew or ought to have known that the basis of the petition was incompetent." The petitioners lodged grounds of opposition to the motion in the following terms:- "(1) The motion discloses no grounds upon which to recall the interim administration order. (2) In any event, the interim administration order should not be recalled. It is explained that the interim administration order was competently granted on 3 February 2005." In their motion for recall of the order appointing the interim administrator the respondents submitted that (1) the petitioners could not show probabilis causa litigandi; and (2) the petitioners inability to show probabilis causa litigandi had been clear to them from the start and in their failure to bring certain matters to the attention of the court, the petitioners were in breach of their obligation of full and frank disclosure. Here the court considered that there was a duty to disclose to the court the fact that the alleged victims of the alleged extortion had consistently denied from as far back as mid-2004 that they were the victims of any extortion and that they had maintained that position in precognitions under oath. The court held that this failure was absolutely central to the central allegation against the respondents and the petitioners failure to comply with its duty of disclosure was sufficiently serious to raise the question whether it should be dealt with by "the ultimate sanction of discharge" namely to grant the motion for recall of the order granted by Lord Brodie on 3 February 2005.

Appeal under section 21 of the Education (Additional Support for Learning)(Scotland) Act 2004 by W.D. v. Glasgow City Council [2007] CSIH 72

Thu, 18 Oct 2007 07:34:00 GMT

Reclaiming Motion:- "M" and his parents resided in the local authority area of West Dunbartonshire. West Dunbartonshire Council were responsible for "M's" education in terms of the Education (Scotland) Act 1980. "M" was born on 4 April 1991 and suffered from cerebral palsy and was blind. "M" attended a mainstream school which was in the area of West Dunbartonshire Council and managed by them. "M's" mother did not want him to attend the mainstream school and wanted him educated in a special school which was in the area of Glasgow City Council and under their control. "M's" mother made a placing request to Glasgow City Council to place him in the special school in Glasgow. On 15 August 2006 Glasgow City Council refused the mother's request on the ground that placing "M" in the special school would breach section 15(1) of the Standards in Scotland's Schools etc Act 2000 that, unless specified circumstances arise in relation to the child, education should be provided in a school other than a special school. "M's" mother referred the Glasgow City Council's refusal of the placing request to an Additional Support Needs Tribunal for Scotland. The Tribunal concluded that there was no statutory provision for the hearing by the Tribunal of a reference relative to the decision by Glasgow City Council and the Tribunal had no jurisdiction to hear it and the reference was dismissed. The mother of "M" appealed to the Court of Session where the Lord Ordinary refused the appeal. The mother recalimed against the decision of the Lord Ordinary. Here the Court considered whether the jurisdiction of an Additional Support Needs Tribunal for Scotland extended to a reference of a refusal by an education authority of a placing request made to them in respect of a child for whose school education they were not responsible for where the child had additional support needs and required a co-ordinated support plan. Link: Education (Additional Support for Learning) (Scotland) Act 2004

Scottish Ministers v Scottish Information Commissioner [2007} CSOH 08

Tue, 23 Jan 2007 00:00:00 GMT

Appeal