Inner House publishes reasons for refusing David Gilroy’s FOI appeal for CCTV images from murder investigation

Judges refused the appeal by David Gilroy, who was convicted of the murder Suzanne Pilley, after ruling that there was “no identifiable error of law” in the Scottish Information Commissioner’s decision that the Chief Constable of Police Scotland was entitled to withhold the requested information on the ground that it was “personal data” and exempt from disclosure under section 38(1)(a) of the Freedom of Information (Scotland) Act 2002.

The point raised in the appeal was whether a list of CCTV images, compiled during a police investigation of the appellant for the murder, was “personal data” for the purpose of section 1 of the Data Protection Act 1998 (DPA).

The Lord President, Lord Carloway, sitting with Lady Smith and Lady Clark of Calton, heard that the appellant wrote to the second respondent, the chief constable, on 20 May 2014 requesting “a copy of the comprehensive list of the CCTV which was recovered by the police, as part of their investigations into my case”.

After initially advising the appellant that a list had already been disclosed to his legal representative, Police Scotland refused to disclose the information following a review of his request.

Not satisfied with that response, the appellant applied to the first respondent, the information commissioner, for a decision under section 47(1) of the 2002 Act.

The chief constable argued that the information was personal data, which was governed by the DPA, and thus exempt from disclosure in terms of section 38(1)(a).

As the information had also formed part of a criminal investigation, it was also exempt under section 34(1)(c).

The first respondent upheld the decision of the second respondent under section 34(1)(a), but did not go on to consider whether the information was exempt under section 34(1)(c).

The appellant then made a data subject access request to the second respondent, under the DPA, for the same information as he had sought under the 2002 Act, and a list of CCTV locations was disclosed to him.

But he was not satisfied that this list was comprehensive, insisting that it showed locations not previously disclosed to him and did not reveal all possible locations - some of which, from other information, he knew existed.

The appellant submitted that the decision of the police to classify the information sought as personal data was “not rational”.

He maintained that the information was not personal data, or if it was, it could be anonymised.

Furthermore, the appellant argued that he was seeking information, contained on CCTV, which showed not only himself, but others, including Suzanne Pilley.

However, the judges ruled that the appeal was “substantially academic”.

Delivering the opinion of the court, the Lord President said: “The request made by the appellant was for ‘the comprehensive list of the CCTV’ recovered as part of the police investigation. After his request under the 2002 Act had been refused on the basis that the information was personal data, and thus exempt from disclosure under section 38(1)(a) of that Act, the appellant made a subject access request for the same information under section 7 of the DPA. He obtained that information in the form of an extensive list of CCTV images, although he maintains that it is not complete.

“The short point in the appeal remains one of whether the list of CCTV, that presumably being a list of CCTV images recovered, the camera locations and the times of the recordings, constituted personal data. In terms of section 1(1) of the DPA, such data is data ‘which relate to a living individual who can be identified (a) from those data, or (b) from those data and other information which is in the possession of … the data controller’.

“The first respondent’s decision explains why, on the facts, she regarded the information as personal data. It was information specifically requested in the context of the investigation into the appellant. It would be straightforward for a person with a reasonable awareness of the appellant’s case to conclude that it had been ingathered in relation to his activities; that is to say, he could be identified as the subject-matter of the information. It was, in any event, information relating to him. There is no identifiable error of law in the first respondent’s conclusion of fact that the data was exempt because it was personal data relating to the appellant.”

Lord Carloway added: “This appeal is essentially an application to this court to review an assessment of fact made by the first respondent. The court is not satisfied that there is a point of law to be considered. If the appellant is dissatisfied with the DPA response to his subject access request, then he may, of course, have alternative remedies available to pursue that matter.”