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Inner House refuses David Gilroys Freedom of Information Appeal

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Inner House refuses David Gilroys Freedom of Information Appeal


21 March 2016

Gilroy v Scottish Information Commissioner & Chief Constable of Police Scotland [2016] CSIH 18

David Gilroy was convicted of the murder of Suzanne Pilley. He sought to recover a comprehensive list of CCTV from Police Scotland in relation to the criminal investigation into his case. Police Scotland refused to provide this information on the basis that it was “personal data” for the purposes of section 1 of the Data Protection Act 1998 (the “1998 Act”) and exempt from disclosure under section 38(1)(a) of the Freedom of Information (Scotland) Act 2002 (the “2002 Act”). The decision was upheld by the Scottish Information Commissioner. Mr Gilroy appealed to the Inner House of the Court of Session.

The Court considered that the appeal was substantially academic because the information had been provided as a result of a data subject access request by Mr Gilroy under the 1998 Act. However, the Court considered that it was bound to consider the merits of the appeal due to the wording of the 2002 Act. 

Lord President (Carloway) held that the appeal was essentially an application to review an assessment of fact made by the Scottish Information Commissioner. The court was not satisfied that there is a point of law to be considered and refused the appeal.

The opinion of the Inner House provides helpful guidance on the concept of “personal data” and the interaction between freedom of information laws and data protection laws.

Axiom members represented both respondents. David Johnston QC appeared for the Scottish Information Commissioner and John MacGregor, advocate, appeared for the Chief Constable of Police Scotland.