In May 2010, Mr. Mark Irvine made requests under the Freedom of Information Act 2002 to South Lanarkshire Council regarding disclosure of information about the pay scales of their employees. Purpose of the request was to identify compliance of the Council with Single Status (Equal Pay) Agreement. The Council refused applicant’s request on the ground that it would contravene the Data Protection Act 1998(DPA). The Scottish Information Commissioner who investigated the matter decided that the information should be disclosed. The council appealed unsuccessfully to the Inner House of the Court of Secession and later brought appeal in front of the Supreme Court.
The right to access information in Scotland steams from the Freedom of Information Act 2002, however the information is exempt from disclosure if it constitutes personal data under DPA, unless one of the conditions specified in Schedule 2 is met. Thus, in the present case Court had to proper interpret if conciliation 6 in Schedule 2 of the Act was applicable.
The Court applies three-prong test to determine the application of condition 6 to the present case. In particular: existence of legitimate interest, necessity and proportionality(para. 18) The appellant, referring to the European Court of Justice cases: Huber v Bundesrepublik Deutchland (2009)and Rechtungshof v. Osterreichischer Rundfunk(2003) argued for stricter interpretation, implying that proportionality was not part of “necessity” test (para. 23).
Referring to the allegations of the appellant and the analysis of European Law, the Court differentiated between two situations of derogation and justification. First situation refers to the interference with right to private life and needs to be analyzed within the scope of Article 8(2) of the European Convention on Human Rights (para. 25).
Second situation, entails data processing which does not engage privacy right issues and therefore, may not be matter of article 8(2) as far as overall result is in compliance with Article 7(f) of European Data directive and condition 6 of the Schedule 2 (paras. 25-26).
Considering the facts of the case, the Court concluded that the information requested would not enable Mr. Irvine to discover identity of data subjects and therefore did not interfere with respect to their private lives. Therefore, without further observation, the court concluded that the information commissioner was correct in its decision (para. 28).
Lastly, the Court established that at least within the context of justification, “necessary” implied “reasonable” rather than absolute or strict necessity criteria. Moreover, the court accepted that necessity forms part of proportionality test within community laws.
Judgment of the Court.