South Lanarkshire

Here are two interesting pieces of information - the first is an extract from the Court of Session, Scotland's highest civil court, in which three senior judges unanimously threw out an appeal from South Lanarkshire Council.

The second is an extract from an article in The Sunday Herald newspaper by Tom Gordon and Paul Hutcheon - the final part of which I have highlighted in bold, for easy reference.

The thing that puzzles me is that South Lanarkshire Council now appears to be arguing that their aim is to protect 'sensitive data' as 'an important issue that's worth defending'.

Yet in the Court of Session the Council made no fuss or challenge on that particular point - the Council's main concern at that time being whether Mark Irvine had any legitimate interest in seeing the data - which the Scottish Information Commissioner (SIC) decided that I had.

In the event Lords Marnoch, Brailsford and Mackay agreed with SIC - and so South Lanarkshire Council has been forced to go back to the drawing board - as the basis of a further appeal to the UK Supreme Court. 

So, it looks like it's Plan B or bust as far as the Council is concerned - though it's worth pointing out that Plan B has already failed, once before.   

Court of Session Judgment

[1] This is an Appeal at the instance of South Lanarkshire Council against a decision of the Scottish Information Commissioner under Section 56 of the Freedom of Information (Scotland) Act 2002.

[2] The requested information concerned the basic hourly rate of pay for the Appellant's job category, "Land Service Operative 3" ("LSO 3"). The Requester, Mr Irvine, wanted to know how many of the total number of LSO 3 posts were placed at Spinal Column Points 25-34 respectively. Although the precise nature of this information was explained to us, it did not in the end prove relevant to a resolution of the legal issues involved. What is relevant is that the Appellant declined to divulge the information in question and it appears from the papers that their principal concern was the possibility that individual employees might be identifiable if the information were released. In the result, however, the Commissioner, who was the only compearing Respondent in the Appeal, found, as matter of fact, that that apprehension was unfounded and the Appellant makes no challenge to the validity of that finding. There were, however, certain other concerns expressed by the Appellant and these were considered by the Commissioner in the context of the information or data in question being, of concession, "personal data" in the hands of the Appellant within the meaning of Section 1(1) of the Data Protection Act 1998.

Sunday Herald

"The freedom of information case involves equal pay campaigner Mark Irvine, of Action 4 Equality, who in 2010 asked the council for details of its pay scales under FoI law.

The aim was to find out if men in manual jobs such as gardening, rubbish collection and gravedigging were paid more than women in jobs requiring equal or higher levels of skill.

In recent years, Scottish councils have been forced to pay out tens of millions of pounds to female staff who have been paid less than male colleagues in equivalent jobs.

If the data asked for by Irvine helped to expose similar bad practice, it could leave South Lanarkshire facing hefty compensation claims.

The council is already being taken to a tribunal by 1500 female workers, who claim they are owed more than £10 million in back pay.

After South Lanarkshire tried to dismiss Irvine's requests as "vexatious", he appealed to the Information Commissioner.n changed tack to claim Irvine had no legitimate interest in seeing the data, and claimed simply releasing the number of staff on various pay grades would be a breach of data protection law, as individual workers might be identified, causing them distress.

The FoI watchdog rejected both arguments and said there was "no reason" to think people would be identified.

The council appealed against the ruling to the Court of Session, but was again defeated.

In an opinion last year, Lords Marnoch, Brailsford and Mackay of Drumadoon confirmed that Irvine had a legitimate interest in the information as an established campaigner, and that it was necessary to hand it over.

However, the council again refused to release the data and appealed to the UK Supreme Court.

Irvine told the Sunday Herald he was sure that, if the information was released, it would show that the council had paid male workers more than their female counterparts for years.

He said: "I think the council has completely lost the plot. What it's doing is unique, as far as I'm aware. It's a huge waste of money after such careful adjudications by the Information Commissioner and the Court of Session judges.

"If there's nothing significant in the information why does the council not just publish it like every other council in Scotland is doing?"

South Lanarkshire Council said: "Our decision to refuse the Freedom of Information request was to protect the sensitive personal data of employees.

"We believe this is an important issue that's worth defending.

"If we released the information that was requested, we believe we would be in clear breach of the Data Protection Act."