Unlock sex offender data
Scottish housing providers were refused statistics on sex offenders but have won an appeal. Emma Gilpin, senior solicitor in public law at Brodies, explains.
The Court of Session in Scotland has upheld an appeal by Craigdale Housing Association and a number of other housing associations against a decision of the Scottish Information Commissioner to refuse them access to information about numbers of sex offenders living within the housing association’s area.
The housing associations made the request to Strathclyde Police under the Freedom of Information (Scotland) Act 2002 to help them work out whether there was a greater ‘burden’ placed on those areas served by the housing associations - in terms of the numbers of registered sex offenders living in those areas - than on areas deemed to be more ‘affluent’.
Strathclyde Police refused to provide the information and argued that it was ‘exempt’ from release. The Scottish Information Commissioner - who is responsible for checking that public authorities comply with their duties under FOI - upheld the police’s decision to withhold the information.
However, the housing associations appealed to the Court of Session arguing that the information they requested was not ‘personal data’, and so did not therefore fall within the scope of the exemption. They also argued that the commissioner was wrong to have reached the conclusion that releasing the information to the housing associations would be ‘equivalent’ to putting the information into the public domain.
The Inner House upheld the appeal on the basis of the first of those grounds and rejected the second, sending the decision back to the commissioner for it to be retaken.
The issue of identification
The court considered the issue of ‘identifiability’ which is a requirement for information to be deemed ‘personal data’ for the purposes of FOI. It took the view that it was not clear from the reasoning set out in the commissioner’s decision how the disclosure of the statistics about the number of registered sex offenders in an area would lead to the identification of a particular individual.
It also rejected the suggestion that individuals were more likely to be identified when this information was considered in light of the fact that registered sex offenders must attend a police station.
The court took the view that while there may be some risk of identification of someone as a registered sex offender from their occasional attendance at a police station, it was difficult to see how the disclosure of statistical information would increase that risk.
The court’s decision focused largely on the lack of reasons in the commissioner’s decision and the case was sent back to the commissioner for him to issue a fresh decision. The same conclusion may still be reached, albeit with different, and fuller, reasons. But it demonstrates that social housing providers can push to access sensitive information without taking ‘no’ as an answer.