William Beggs fails in appeal against decision of Scottish Information Commissioner

William Beggs alleged that commissioner Rosemary Agnew made “fundamental errors of law” over how she handled an FOI application he made from prison in 2013.

The appellant wanted to see notes from the Scottish Prison Service’s (SPS) internal complaints committee meetings he had attended, which were held to discuss his complaint about how prison staff handled “privileged” mail which had been addressed to him.

However, judges in the Inner House of the Court of Session ruled that the substance of the commissioner’s decision could not be criticised.

Mr Beggs was sentenced to life imprisonment in 2001 for murdering 18-year-old Barry Wallace and dismembering his body in December 1999 at a flat in Kilmarnock, Ayrshire, and discarding the limbs and torso of his victim in Loch Lomond and disposing of his head by throwing it into the sea off the Ayrshire coast.

The appellant appealed against a decision of the Scottish Information Commissioner dated 2 May 2014 concerning requests for copies of the “handwritten and transcribed notes” of an internal complaints committee meeting held on 4 July 2013 at HM Prison, Edinburgh, made by him to the SPS under the Freedom of Information (Scotland) Act 2002 (FOISA).

The Lord Justice Clerk Carloway (pictured), Lady Dorrian and Lord Bracadale, heard that the appellant later obtained all of the requested information by virtue of a subject access request (SAR) under the Data Protection Act 1998, which was made prior to the respondent’s decision but after the SPS’s responses to the requests for information and review.

The decision was partly in the appellant’s favour, in respect that the respondent found that the SPS had failed to respond timeously to one of the appellant’s requests and had erred in maintaining that they did not need to respond to it because they had already responded to an identical earlier request.

But the respondent found against the appellant in determining that the SPS had been entitled to withhold the information requested because it could reasonably be obtained by other means and was therefore exempt under section 25(1).

The appellant argued that the respondent’s decision had been “irrational” to the extent that she had purported to determine that the information was exempt, pursuant to section 25(1), without considering whether or not it fell to be regarded, in its entirety, as the personal data of the appellant.

Had the respondent concluded that any of the information had not been personal data, it would not have been reasonable to expect the appellant to make a SAR in order to obtain it, it was submitted.

He also argued that the respondent had been obliged, as a matter of procedural fairness, to offer him an opportunity to comment on the potential section 25 exemption.

The appellant submitted that the respondent’s decision should be quashed, but the judges observed that the respondent was “entitled to conclude that, as a matter of fact, the information was “reasonably obtainable” within the meaning of section 25 on the basis that the appellant chose to make a SAR and had thereby obtained the information.

Delivering the opinion of the court, the Lord Justice Clerk said: “Following consideration of the legality of the SPS’s conduct under Part 1 of the Act, the issue for the respondent thereafter was whether the information was, in fact, exempt or not. She was not bound by the submissions of the parties and was entitled to apply the provisions of the FOISA to the facts as she deemed fit.

“In light of the appellant’s acceptance that he had received the requested information via the SAR, the legal characterisation of the SPS’s entitlement to refuse to comply with the requests for information as being exempt either in terms of section 38(1)(a) or section 25(1) was immaterial. The respondent, who had applied her mind to the question, determined that it was not necessary, as a matter of procedural fairness, to revert to the appellant on this particular point.

“The court is unable to find fault in that view. No breach of natural justice or the principles of fairness occurred.”