‘Limbs in the loch’ killer loses fresh appeal against refusal of freedom of information request

About this case:

• Citation:
  [2023] CSIH 34
• Judgment:
  External link
• Court:
  Court of Session Inner House
• Judge:
  Lord Malcolm

William Beggs, who had been attempting to obtain the information sought from the police since 2010, argued that the Scottish Information Commissioner had erred by failing to apply a presumption of openness when considering whether information ought to be disclosed and had incorrectly applied the test of public interest.

The appeal was heard by Lord Malcolm, Lord Doherty, and Lord Tyre. Sloan, advocate, appeared for the appellant and Welsh, advocate, for the respondent.

Presumption in favour

In 2010, the appellant requested from Police Scotland information relating to CCTV footage from cameras located in Kilmarnock taken on the evening of the deceased’s murder, as well as police investigations into a line of enquiry that arose from certain witness statements. Police Scotland refused to disclose the information. It considered that various exemptions under FOISA applied, and that it was in the public interest to maintain those exemptions.

The appellant applied to the Scottish Information Commissioner for a decision in terms of section 47(1) of the Act, but the Commissioner upheld the refusal. An appeal to the Inner House challenging the Commissioner’s decision was refused in 2014. Following that refusal, the appellant attempted to secure legal aid to appeal to the Supreme Court but was unable to secure funding, leading to a fresh FOISA request in 2018.

Police Scotland initially refused to respond to the 2018 request on the grounds it was vexatious but was ordered by the Commissioner to carry out the review. A reconsidered decision was issued in 2019, in which it found that disclosure would undermine the expectation of confidentiality had by witnesses when cooperating with police officers. The Commissioner upheld this decision on review.

Before the court it was submitted that the Commissioner erred in law by failing to have regard to what was described as an inbuilt statutory presumption in favour of disclosure. But for that the outcome might have been different. Further, the Commissioner had taken the wrong approach to the public interest test and provided inadequate reasons for upholding Police Scotland’s decision.

Outweighed by public interest

Delivering the opinion of the court, Lord Malcolm said of the presumption contended for by the appellant: “It is plain from the relevant wording in sections 1 and 2 of FOISA that when the public interest test is applied to an exemption there is no presumption in favour of disclosure. The question is simply whether, in all the circumstances of the case, the public interest in disclosure is outweighed by the public interest in maintaining the exemption.”

He continued: “After a consideration of the competing factors, a judgement was made as to whether the public interest in disclosure was outweighed by the public interest in maintaining the exemptions. There is no warrant for inserting a presumption for disclosure into the analysis. The first ground of appeal is without merit.”

Assessing the Commissioner’s reasoning, he said: “One only requires to read the Commissioner’s decision for it to be apparent that there is no merit in the contention that the Commissioner addressed only generalities, nor in the proposition that he had no regard to the particular circumstances of the case and the specific information requested.”

He went on to say: “Counsel for the appellant’s only response when asked to identify what had been left out of account was to say that this was a long-running high-profile case in which the appellant had been steadfastly maintaining his innocence, matters which would have been obvious to the Commissioner, and in any event are referred to in his decision.”

Lord Malcolm concluded: “Apart perhaps from the rejected submission as to a presumption in favour of disclosure, it is not clear in what respect it is said that the Commissioner’s decision on this issue is flawed. He balanced the competing interests and, as he was entitled to, held that the data subjects’ interests prevailed. The reasoning is full and clear. We have detected no error of law on his part.”

Accordingly, the appeal was refused.