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Six Scottish local authorities have been accused of wasting public funds and failing to act in the interest of consumers after they lodged appeals at the Court of Session this week against a landmark decision by the Scottish Information Commissioner who had demanded they hand over details of under performing businesses. SNP Social Justice spokeswoman Christine Grahame MSP had last year welcomed a decision by Kevin Dunion, the Scottish Information Commissioner, who ruled a number of Councils had failed to meet their requirements under the Freedom of Information (Scotland) Act 2002 by not releasing information on individual electrical retailers.
The Councils who withheld information had relied on advice from the English Information Commissioner and the Department of Trade and Industry based in London, neither of whom have any statutory authority. Scottish Borders Council even claimed Ms Grahame had already committed a criminal offence under the Enterprise Act by receiving ‘specified’ information from those councils, including Glasgow City Council and Orkney Islands Council, who had decided to disclose the information. Ms Grahame said:
Last September around 20 of Scotland’s 32 local authorities refused to release information about specific businesses in their areas. The Scottish Information Commissioner investigated this matter and took senior Counsels opinion and finally ruled that those Councils who had not released information they held on named businesses were in breach of the Scottish Freedom of Information.
However six of those councils, Dumfries and Galloway, East Dunbartonshire, Fife, Falkirk, South Ayrshire and West Lothian, have now decided to ignore the Scottish Information’s Commissioner’s ruling and have made an appeal to the Court of Session to stop them releasing the information which would be used to identify retailers with poor customer service records. Ms Grahame added:
I find it incredible that at a time when Scottish Councils are complaining about under funding and at the same time increasing Council tax that they are spending money by going to the Court of Session to appeal a decision which is neither in the public interest and in fact represents a direct challenge to the primacy of Scots law.
The only people this will benefit are unscrupulous and poorly performing businesses.
I am challenging all six Councils to reveal what the cost will be to the public purse through the court action they have raised and to explain whose interest they are working in.
Note to Editors:
On the 2nd of October Christine Grahame MSP asked under the Freedom of Information (Scotland) Act 2002 for the following:
The number of complaints received by the Trading Standards section/Department related to electrical retailers in your local authority region for the past 5 years broken down by each year and with each retailer listed and the number of complaints made against it.
The following Councils applied section 26(a) of the Freedom of Information Act concluding that the provisions within Part 9 of the Enterprise Act 2002 did constitute a prohibition on disclosure under Freedom of Information (Scotland) Act 2002.
Following a similar request for information to Councils and an investigation by the Scottish Information Commissioner he concluded that the Councils who chose to apply this exemption failed to act in accordance with Part 1 of the Freedom of Information (Scotland) Act and that the requested information should be released. The request made by Ms Grahame, whilst covering a separate retail sector, was substantively the same as cases investigated by the Commissioner.
Ms Grahame has notified the Councils who failed to provide the information of the Commissioner’s decision requiring them to supply the information.
Council’s who failed to act in accordance with Part 1 of the Freedom of Information (Scotland) Act 2002: Scottish Borders Council, East Dunbartonshire, East Renfrewshire, South Ayrshire, Fife Council, Highland Council, Aberdeen City Council, Aberdeenshire Council, Moray Council, Dundee City Council, North Lanarkshire, Dumfries and Galloway Council, East Lothian Council, West Lothian Council, Edinburgh City Council, Midlothian Council, Shetland Islands Council, Western Isles Council.
The latest response from a Scottish local authority following the decision of the Scottish Information Commissioner, North Lanarkshire Council, in Jack McConnells constituency, states: In the decision issued by the Scottish Information Commissioner there is an impressive and highly persuasive argument supporting the primacy of the Freedom of Information (Scotland) Act. I am, however, aware that it is not an interpretation universally shared: while I have not seen the decision, I am advised that the Information Commissioner in England has reached another view and that both the Department of Trade and Industry and the Department of Constitutional Affairs are firmly of the view that both the intention and the effect of Part 9 of the Enterprise Act is to create a prohibition on disclosure which prevents release of specified information in response to an information request under the Freedom of Information (Scotland) Act while the views of neither of the Departments of State carry any judicial authority, I have to note their view that it was not the intention of the Enterprise Act that this information be released.
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