Nicholas Wheatley v The Information Commissioner & Anor

on a request under Article 15(1) of the GDPR (general processing: right of access by the data subject) for access to personal data, the information would be withheld in reliance on provision made by or under section 15, 16 or 26 of, or Schedule 2, 3 or 4 to, the Data Protection Act 2018, or

on a request under section 45(1)(b) of that Act (law enforcement processing: right of access by the data subject), the information would be withheld in reliance on subsection (4) of that section.

giving a member of the public the confirmation or denial that would have to be given to comply with section 1(1)(a)—

would (apart from this Act) contravene any of the data protection principles, or

would do so if the exemptions in section 24(1) of the Data Protection Act 2018 (manual unstructured data held by public authorities) were disregarded;

giving a member of the public the confirmation or denial that would have to be given to comply with section 1(1)(a) would (apart from this Act) contravene Article 21 of the GDPR (general processing: right to object to processing);

on a request under Article 15(1) of the GDPR (general processing: right of access by the data subject) for confirmation of whether personal data is being processed, the information would be withheld in reliance on a provision listed in subsection (4A)(a);

on a request under section 45(1)(a) of the Data Protection Act 2018 (law enforcement processing: right of access by the data subject), the information would be withheld in reliance on subsection (4) of that section.

In this section—

Article 5(1) of the GDPR, and

section 34(1) of the Data Protection Act 2018;

In determining for the purposes of this section whether the lawfulness principle in Article 5(1)(a) of the GDPR would be contravened by the disclosure of information, Article 6(1) of the GDPR (lawfulness) is to be read as if the second sub-paragraph (disapplying the legitimate interests gateway in relation to public authorities) were omitted.

Section 42 of the FOIA states that information in respect of which a claim to legal professional privilege (“LPP”) could be maintained in legal proceedings is exempt information.

Section 44(1)(a) of the FOIA provides that information is exempt information if its disclosure is prohibited by or under any enactment. It is an absolute exemption so the public interest balance does not apply.

Section 3(2) of the Data Protection Act (“DPA”) defines personal data as:
“any information relating to an identified or identifiable living individual”.

The public interest test to be applied to Legal Professional Privilege was considered by the First-tier Tribunal in Bellamy v the Information Commissioner and the DTI (EA/2005/0023):

Section 11(2) of the Parliamentary Commissioners Act (PCA) states:

The Commissioner obtained a copy of the withheld information and considered the submissions of both parties. Having done so she concluded that the withheld information was exempt from the disclosure on the basis that it contained information, which was exempt under one, or more of the following exemptions detailed below.

Personal Data:

Where applicable the withheld information fell within the relevant statutory definition, as it was information obtained in the course of, or for the purposes of, an investigation, and discussed during and for the purposes of that investigation (DN [64]). Accordingly s.44(1)(a) FOIA was engaged (DN [65]).

The Appellant’s Grounds of Appeal detailed the factual matrix underlying his request and considered the various public interest considerations in favour of disclosing the withheld information. The Appellant went on to address the engagement of the relevant exemptions outlined by the Commissioner. In response to the Commissioner’s view on the legal privilege, the Appellant contended that legal privilege relating to any legally privileged information shared by the PHSO will have been waived with complainants without restrictions and that the substance of legal advice has previously been disclosed. The Appellant argued that public interest favours disclosure.

The Appellant averred that only communications in the course of or for the purpose of an investigation will fall within the exemption. The Appellant stated that, where possible, personal data should be redacted in order for the withheld information to be disclosed.

The Commissioner maintained her position adopted in the DN regarding the disclosure of the withheld information and provided observations in respect of the Appellant’s Grounds of Appeal. In relation to grounds 1 and 2, the Commissioner reiterated that the withheld information contained confidential communications between the PHSO and its lawyers for which legal privilege can be relied upon. Further, that those communications were for the purpose of seeking or giving legal advice, some of which was for litigation purposes.

In relation to the public interest, the Commissioner referred to the Tribunal’s decision in Bellamy v Information Commissioner & the Secretary of State for Trade and Industry (EA/2005/0023) (“Bellamy”) at paragraph [35] where the Tribunal held:

The Commissioner referred the Tribunal to the importance of preserving the strong public interest in preserving legal privilege as recognised by the Upper Tribunal in DCLG v Information Commissioner & WR [2012] UKUT 103 (AAC). The Commissioner adopted the aforementioned approach and submitted that she had not erred in attributing strong weight on to the public interest in preserving legal privilege.

The Commissioner argued the persuasive authorityof M Boyce v Information Commissioner & PHSO EA/2019/0032, to state that it is clear that the public interest similarly falls in favour of maintaining the exemption.

The Commissioner argued that the Appellant does not appear to dispute that it would be unlawful to disclose the personal data contained within the withheld information. However, the Commissioner made reference to condition 6(1)(f) GDPR which states that disclosure is “necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child”. Therefore, any disclosure of personal data in this instance would be unlawful.

The Commissioner asserted, regarding any redaction exercise, that a significant burden would be imposed on the PHSO. Further, that if the PHSO’s reliance on s.42 and s.44 FOIA was to be upheld, there would be little value in the remaining information.

The Appellant contended that the PHSO have considerable experience of anonymising personal data. The Appellant provided an example of a published anonymised decision to further the point. In relation to prohibitions on disclosure, the Appellant contends that if an entire document is prohibited from disclosure, as a result of a small amount of information contained within that document, by section 15(1) of the Health Service Commissioners Act 1993 (Section 32(2) of the Local Government Act 1974 equivalent), then an organisation could protect any document, simply by including a small amount of information obtained during the course of any investigation.

The Appellant argued that discussions concerning ‘functus officio’ do not relate to any information acquired during the course of any investigation. Further, that it would not be in the spirit of the FOIA to prohibit any document containing ‘functus officio’ from disclosure. The Appellant referred to Commission for Local Administration in England v IC (EA/2007/0087, 11 March 2008) to support his argument.

In addressing the public interest, the Appellant argued against the Commissioner’s reliance on M Boyce v Information Commissioner and PHSO (EA/2019/0032) and stated that, in the present case, “there is no public statement of policy on the PHSO’s website and no further clarity can be obtained from PHSO caseworkers since familiarity with the principle of ‘functus officio’ is not a necessary requirement for a caseworker to perform their duties”.

The Appellant referred by way of an example to his own PHSO complaint which he said has been waiting for 5 years without a review. He maintains that he has been subjected to the arbitrary process with no superior body to appeal to. The Appellant referred to David Platts v Information Commissioner EA/2020/0279, in which the Tribunal allowed the appeal and stated as follows:

The Appellant, again, referred to M Boyce v The Information Commissioner EA/2019/0334, for the purposes of contending that it is in the public interest that the legal advice be disclosed in order to explain how the “PHSO’s internal review is in a muddle and needs sorting out.”

The Appellant made reference to the Public Service Ombudsman bill drafted in December 2016 which would have merged PHSO with another Ombudsman but he highlighted that there is no provision in that draft Bill, which concerns the review process, or that, clarifies the position of the Ombudsman once he is ‘functus’. Further, that the Chancellor of the Duchy of Lancaster indicated in a letter dated 9 September 2020 addressed to the Chair of the Public Accounts and Constitutional Affairs Committee that the government has temporarily shelved the planned merger of the two Ombudsmen.

The Appellant contended that whilst acknowledging “the strong element of public interest in withholding legal advice, I submit that it is outweighed by the countervailing considerations….in particular the ‘muddle’ of the current PHSO review process” and the “unaccountable sidestepping of the legal principle of ‘functus officio’ based on legal advice”.

The PHSO sought a direction under Rule 14(6) that the substantive response to the questions posed by the Tribunal relating to the specific exemption should be withheld under Rule 14(6).

The PHSO maintained her position, which is subject to the appeal and upheld by the Commissioner in her DN.

The PHSO confirmed that the documents engage legal professional privilege and are therefore exempt. Further, that some documents relate to third parties. Additionally, some documents relate to PHSO investigations. The PHSO averred that it is not possible to provide further clarification on the specific documents, as title or details of the content would be required. This is problematic and would effectively defeat the purpose of the proceedings. The PHSO contended that this needs to recognised as a complicating factor in this case for the PHSO.

The Appellant (in his Submission 3 dated 7 September 2021 contended that the PHSO and the Commissioner have made baseless allegations in relation to the request. The Appellant stated that these allegations are shocking and wholly unacceptable. The Appellant refers to the email at section D86 of the open bundle:

The Appellant stated that only 3 of his 19 requests were refused and whilst 19 requests may be considered excessive the Appellant is a member of PHSOtheFACTS which attempts to hold the PHSO accountable, through FOIA requests. Further, the Appellant disputed that he works in conjunction with other requestors. The Appellant contended that he only once submitted multiple requests which was by coincidence. Further, that there was an 18-month period in which a request was not submitted. The Appellant claimed that the PHSO have an interest in claiming that requests are not made in the public interest.

The Appellant requests the disclosure of documents listed on pages D108 and D109: 11, 12, 13, 16, 17, 28, 29, 30, 38, 51, 52, 53, 54. Further, the Appellant requests the name of the disclosed PHSO staff member who made the allegations against the Appellant so that an official complaint could be lodged with the PHSO (we indicate that the latter matter of a request for identification of an individual within the PA for the purpose of making a complaint is not within the remit of the Tribunal in the appeal before us).

In accordance with the Tribunal powers under s58 (2) FOIA the Tribunal considered all the findings of fact upon which the decision was based. The Tribunal used its powers under Rule 2 (4) of The Tribunal Procedure Rules 2009 to request further documents. In addition the Tribunal joined the Public Authority as second respondent by way of Open Case Management Directions 1 November 2021 and indicated that an Oral hearing concerning the Withheld material may be necessary.  

The Tribunal also directed as follows; ” it is also imperative that the Second Respondent make it clear in Open or Closed submissions (as required) which documents have been determined, or are to be determined, to be out of scope with adequate reasons in each case. There appears to be some confusion and/or duplication of documents, which require explanation.”.

The Second Respondent provided additional Closed Submissions dated 23 December 2021, which included information and clarification, which would not have been available to the ICO at the time of her investigation. 

The Tribunal by way of further Closed Case Management Directions dated 17 January 2022, sought further clarification in relation to some specific issues concerning the withheld material. This in turn gave rise to Further Closed Submissions by the Second Respondent, on 7 February 2022 with information that also would not have been available to the ICO at the time of her investigation.  

The impact of this assistance and further information provided late by the Second Respondent, meant that the Tribunal was assisted in making its decision on reasoning by the Public Authority that was not available to the ICO at that time of her investigation for a set of withheld information which also differed from that which she had considered.  (See R v Evans as the Supreme Court made clear in R (Evans) v Attorney-General [2015] AC 1787 (SC), at §73: … facts and matters and even grounds of exemption may, subject to the control of the Commissioner or the tribunal, be admissible even though they were not in the mind of the individual responsible for the refusal or communicated at the time of the refusal to disclose (i) if they existed at the date of the refusal, or (ii) if they did not exist at that date, but only in so far as they throw light on the grounds now given for refusal … “)

The Tribunal are grateful to the parties for their input although there seems again to be some confusion in the identification of documents that we have been asked to consider. On this, our third attempt, we have spent considerable time to properly identify the information that is within the scope of the request and then identify which Exemptions have or can be properly applied. The Tribunal found it difficult to determine what information was in and out of scope and why some documents had been provided at all. The Second Respondent were asked to provide rationale for the inclusion of each document and the applicable exemption. Upon considering this Tribunal was still unable to reconcile several documents as being within scope, specifically within the timeframe. Additional directions to Second Respondent asking for clarification of certain documents have resulted in Second Respondent agreeing that a small number of documents, which had been deemed out of scope were in fact in scope and some in scope were not by virtue of the dates.

The Second Respondent provided detail of which exemptions applied to which documents in each case. The Tribunal have been able to consider the exemptions in relation to the documents and find that these have been correctly applied. The Appellant argues that the S44 exemption which is absolute (and not subject to the Public Interest test) cannot apply to information, which was produced after the conclusion of a PHSO investigation. The Tribunal agrees with the IC that this information is within scope as it is information, which was produced as a result of a PHSO investigation and would not otherwise exist. It is therefore part of the investigation process. S42 is claimed as the only exemption for a small number of documents and the Tribunal is satisfied that this is correctly applied. A significant number of the documents attract both S42 & S44. Whilst S42 requires the public interest test the Tribunal accepts the arguments from the IC and adopt the Commissioner’s reasoning (DN56) on the balancing test and does not find anything to alter this.

A number of documents, which the Appellant has specifically asked for in his 7 September 2021 submissions, are exempt by virtue of them being his own information and should be dealt with by a Section 40 Subject Access Request. We find that the Second Named Respondent has been diligent in providing documents, which ‘might’ be within scope and there is no suggestion that documents have been withheld. Some documents have been included which are attachments to another document, or an email. The Tribunal has considered these separately i.e. the document itself then the attachments.

The Second Respondent provided a considerable amount of Closed material.  The material divided into sections including a significant amount said not to be in scope. It was not clear to the Tribunal, which documents were fully within scope of the request, and which exemptions claimed applied to each document. The Tribunal sought further clarification from public authority who whilst having been cooperative and clearly willing to provide assistance did not fully resolved the position of which of the documents are within scope of the request and why, on the first attempt.  After the second request for assistance by the Tribunal, the public authority have identified documents, which should have been categorised as within scope and recommended they be included within that section of the withheld material.  The public authority further provided explanations concerning the section of material regarded as being out of scope of the request and the Tribunal accepted this. 

The Tribunal, having spent many hours working through the documents, have decided to adopt by reference to the original request the following approach;

In relation to the rest of the information held within scope, we confirm we are satisfied that in the case of each document, we have determined which of the exemptions are properly applied and the following exemptions (in some cases more than one) apply; Section 44, being an absolute exemption Section 2 and Section 40 . We accept, endorse and adopt the reasoning of the Respondents on the Public Interest test favouring non-disclosure.

In order to effect the protection of the exemptions being relied on, we have not identified the specific documents.

Whilst the DN can be criticised, as there was a lack of clarity concerning which exemptions had been applied to each of the withheld documents and an appeal was justified in our view, the Tribunal have carefully considered all the withheld information in great detail, and for the above reasons dismiss the appeal.