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Council loses Supreme Court appeal over disclosure of equal pay data

The Supreme Court has rejected an appeal by a council against disclosure of information on equal pay.

The case of South Lanarkshire Council v The Scottish Information Commissioner [2013] UKSC 55 centred on information requests made in 2012 by Mark Irvine of the Action 4 Equality campaign group.

Irvine had made requests under the Freedom of Information (Scotland) Act 2002 (FOISA) to the council for information about the number, but not the identity, of its employees in a particular post at particular points on the council’s pay scales.

The purpose of the FOI requests was to investigate whether South Lanarkshire’s pay gradings favoured work traditionally done by men. An estimated 2,500 council workers could launch an equal pay action if evidence was found.

The local authority refused the request on the basis that releasing the information would identify individual employees and contravene the Data Protection Act 1998.

Irvine complained to the Scottish Information Commissioner. Following an investigation, the Commissioner concluded that South Lanarkshire should disclose the information to the requester.

The local authority appealed to the Inner House of the Court of Session, where it also alleged that the Commissioner had acted in breach of natural justice by failing to disclose to the council certain communications sought and received by him in the course of his investigation.

That appeal was dismissed and South Lanarkshire took the case to the Supreme Court.

The Supreme Court unanimously rejected the appeal today (29 July). It said the Commissioner had been entitled to conclude that the council should disclose the information to Irvine and that there had been no breach of the rules of natural justice.

Giving the judgment of the court, Lady Hale said the most important issue was the proper interpretation of condition 6 in Schedule 2 to the 1998 Act. Personal data can only be processed if one of the conditions in the schedule is met and condition 6 was the only relevant condition.

Lady Hale said a person who requested information under FOISA had a right to have that information disclosed to him, provided that this did not contravene the DPA. “This is, of course, a right which he did not have before the FOISA was passed, but it is not a right which trumps the provisions of the DPA.”

She said that the conditions in Schedule 2 of the DPA applied to any kind of operation performed on personal data, adding that “it would be surprising if the word ‘necessary’, which appears in all the conditions except the first, were to have a different meaning in different conditions”.

Lady Hale added that therefore any interpretation given to the word ‘necessary’ must be capable of applying equally well to each of the situations envisaged in the conditions, some of which involved compliance with legal obligations.

The judge said condition 6 required three questions to be answered in relation to Irvine’s request.

  • Was Irvine pursuing a legitimate interest or interests?
  • Was the processing of the personal data necessary for the purposes of those interests?
  • Was the processing unwarranted in this case by reason of prejudice to the rights and freedoms or legitimate interests of the data subjects (the employees)?

Lady Hale said the European Court of Justice had confirmed that Council Directive 95/46/EC, to which the DPA gives effect in the UK, insofar as it governed the processing of personal data which was likely to infringe fundamental freedoms, in particular the right to privacy, should be interpreted in the light of fundamental rights.

National legislation which was incompatible with the right to privacy secured by Article 8 of the European Convention on Human Rights would not satisfy the requirements of the Directive.

Lady Hale said the concept of necessity had its own independent meaning, although the ECJ had not supplied a definition.

South Lanarkshire argued that there was a strict test of necessity and that questions of proportionality only came into other aspects of the conditions.

Lady Hale agreed that the word ‘necessary’ had to be considered in relation to the processing to which it related. However, she added condition 6 had a counterbalance with the rights and interests of the data subjects built into it and it might not matter where the proportionality requirements of Article 8(2) of the ECHR were considered as long as the overall result was compliant with them.

The judge continued: “In this particular case, however, as the processing requested would not enable Mr Irvine or anyone else to discover the identity of the data subjects, it is quite difficult to see why there is any interference with their right to respect for their private lives. It is enough to apply article 7(f) and condition 6 in their own terms.”

Lady Hale added that it was well established in community law that, at least in the context of justification rather than derogation, ‘necessary’ means ‘reasonably’ rather than absolutely or strictly necessary.

She said: “Necessity is well established in community law as part of the proportionality test. A measure which interferes with a right protected by community law must be the least restrictive for the achievement of a legitimate aim. Indeed, in ordinary language we would understand that a measure would not be necessary if the legitimate aim could be achieved by something less.”

The judge concluded that the Commissioner adopted a test which was “probably more favourable to the council than was required and certainly no less favourable”.

She added: “In any event it is quite clear that he was entitled to reach the conclusion that he did.”

Lady Hale also ruled against South Lanarkshire on the second issue, as to whether there was a breach of natural justice.

The judge said it was common ground that the Commissioner had a duty to act fairly, especially as the sole finder of facts. In Scotland, unlike England and Wales, there was no appeal to a tribunal which can decide questions of both fact and law.

The Commissioner was entitled to make his own inquiries and obliged to give the public authority notice of any new material which his inquiries had elicited and which was adverse to their interests.

Lady Hale said it did not follow that every communication passing between the Commissioner and the applicant, or between the Commissioner and third parties, had to be copied to the public authority.

The judge said the material contained in the correspondence generated by the Commissioner’s ­was already known to South Lanarkshire. There was therefore no breach of the rules of natural justice for the Commissioner to refrain from copying the correspondence to the council.

A spokesman for South Lanarkshire said the judgment was disappointing.

“We have never denied this information to people with a legitimate interest in it, where it is necessary and warranted, and that’s why it has been provided to those representing employees and ex-employees in tribunals,” he said.
“However, we have been acting on legal advice that, if we released it to a third party, we could be in breach of the Data Protection Act by disclosing information which could be used to identify specific people and their salaries.”
The spokesman added: “Given that concern and our legal advice, it was clear that these arguments had to be heard in the highest court in the land. Indeed, the judges make it clear that they took our arguments seriously and believed our case was worth putting before them.”
Eddie McAvoy, South Lanarkshire Council’s Leader, said: “I am very disappointed at this outcome, and all the more so because we were told repeatedly by our legal advisers that our case was sound and that there were good grounds for the council’s arguments. Given the judges’ ruling, I have instructed officers to release this information as soon as is practical.”

The cost of the legal action is estimated at approximately £100,000. 

This article is based on a summary prepared by the Supreme Court.

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