An employee of South Lanarkshire Council made a number of requests under the Freedom of Information (Scotland) Act 2002 (FOISA) for information from the Council. He wanted to know how many of their employees in a particular post were placed at 10 particular points on the Council’s pay scales. His underlying purpose was to find out whether the Council’s pay gradings favoured work traditionally done by men. He did not want to know the names of the employees concerned. The Council refused his request on the ground that to comply with it would contravene the Data Protection Act 1998 (DPA).

The employee complained to the Scottish Information Commissioner who investigated and decided that the information should be disclosed. The Council appealed unsuccessfully to the Inner House of the Court of Session and then to the Supreme Court. It was agreed that the Data was Personal Data and could only be disclosed if one of the conditions in Schedule 2 of the DPA applied. The relevant condition in this case was condition 6: “The processing is necessary for the purposes of legitimate interests pursued by the data controller or by the third party or parties to whom the data are disclosed, except where the processing is unwarranted in any particular case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject.” This required a three stage test: (i) Is the data controller or the third party or parties to whom the data are disclosed pursuing a legitimate interest or interests? (ii) Is the processing involved necessary for the purposes of those interests? (iii) Is the processing unwarranted in this case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject? It was found that the employee was pursing a legitimate interest, and the processing was necessary to pursue this interest.

Given that the names of the employees had not been requested and there was no way to identify individual employees, the disclosure would not interfere with any employee’s right to a private life and the Supreme Court found the Information Commissioner was entitled to reach the decision he did. The Council also challenged the failure by the Commissioner to disclose correspondence between itself and the employee and an MSP on grounds of natural justice.

Although the Supreme Court recognised the Commissioner’s duty to act fairly it found that ever communication between it and the applicant or it and a third party did not have to be disclosed to the public authority. The Council had been fully aware of the information contained in the letters and there was no breach of the rules of natural justice. http://bit.ly/16az5mL