Malcolm Reeves v The Information Commissioner

The Commissioner submits that the tribunal only has jurisdiction to consider whether any information is personal data of Mr. Reeves.

The test in relation to third party personal information is not ‘the public interest’.

The Commissioner stands by his decision that this information is out of scope.

This does not appear to have been referred to the Commissioner in Mr. Reeves’ complaint. The tribunal does not have jurisdiction to consider it.

Mr. Reeves submits that the inconsistency of the Commissioner means that he cannot exercise his right under the DPA to have personal data about him corrected. He asserts that he is denied knowledge of what the data is, so it is impossible for him to correct false data, although from the context the data is clearly about him. He argues that the only way that he can view the data is to agree that it can be put into the public domain, which would make the data subject to FOIA.

Mr. Reeves submits that the public interest test does apply. He notes that it is on the Commissioner’s website and in their guidance.

The public interest in disclosure is in exposing the Council’s reliance on false/defamatory statements and what this says about the decision making processes and integrity of the Council.

In relation to item 8, the item containing HC’s comments, Mr. Reeves submits that these comments relate to HC’s statement included with TVG application 2018/01 as Janice Green says in her email (17 November 2020). The TVG application, form 44, contains a warning that all data in and submitted with the form will be in the public domain. HC’s statement is thus in the public domain.

Mr. Reeves submits that the public interest tests of upholding standards of integrity and ensuring justice and fair treatment for all apply. Emails say HC wished to withdraw her statement but was persuaded not to. Why did she wish to withdraw her statement? What was said to persuade her not to? When the subject is a sworn statement of truth then this is clearly a Public Interest matter.

HC’s comments must be in scope because Janice Green says that they relate to the statement included with the TVG application.

Mr. Reeves submits that item 7 was included in the appeal data package as file 5. It was mentioned to the Commissioner in the emails to the ICO case officer when Mr. Reeves asked why it had not been addressed in the decision notice.

Mr. Reeves submits that item 7 shows that either data was being deliberately deleted or the deleted email and the reminder emails should have been released.

Mr. Reeves submits that this shows that the Council is hiding data and therefore the Commissioner should have carried out a thorough investigation.

There is a contradiction between what Mr. McConaghy says at p D161 and what Janice Green says at P D160 as to whether the comments of HC relate to the village green application. Mr. Reeves submits that the comments are clearly in scope.

Mr. Reeves refutes Mr. McConaghy’s implication that Mr. Reeves’ use of FOIA to get at the truth is excessive. Mr. Reeves submits that any rational person would instead be asking why Wiltshire Council behaved so unreasonably in accepting the village green application in the first place.

The relevant provisions of the EIR are regs 5(1) and (3), 12(1) to (3) and 13(1) and (2A):

Personal data is defined in s 3(2) of the Data Protection Act 2018 (DPA) as:

‘Identifiable’ means a living individual who can be identified, directly or indirectly. It must be possible to identify an individual using all the information that is reasonably likely to be used, including information that would be sought out by a motivated inquirer. Identifying a pool that contains or may contain a person is insufficient. It is not sufficient to say that a person is reasonably likely to be covered by the data (NHS Business Services Authority v Information Commissioner and Spivak [2021] UKUT 192 (AAC)).

Article 5(1) GDPR states that personal data must be processed ‘lawfully and fairly’. In order to be lawful, one of the lawful bases of processing in article 6(1) GDPR must apply. The only potentially relevant basis here is article 6(1)(f):

The case law on article 6(1)(f)’s predecessor established that it required three questions to be answered, which we consider are still appropriate if reworded as follows:

The tribunal’s remit is governed by s.58 FOIA. This requires the tribunal to consider whether the decision made by the Commissioner is in accordance with the law or, where the Commissioner’s decision involved exercising discretion, whether she should have exercised it differently. The tribunal may receive evidence that was not before the Commissioner and may make different findings of fact from the Commissioner.

The issues we have to determine, with reference to the item numbers in the table set out in the introduction above, are:

We have read and an open and a closed bundle of documents, which we have taken account of where relevant. For the benefit of Mr. Reeves we note that the closed bundle consists of the withheld information, and an unredacted version of the letter from the Council to the Commissioner.

It is not in dispute that the requested information is environmental information.

Mr. Reeves refers to the public interest test, and questions why the Commissioner has objected to this, given that the Commissioner has produced guidance on the public interest test. Whilst the public interest is relevant to most exceptions to the duty to disclose environmental information, it does not apply where that information is the personal data either of the requestor or a third-party (see regulations 5(3), 12(1) and 12(3) EIR).

Item 7 relates to an email dated 7 April 2021 at 13:08 from Adrian Andrews to Rights of Way. This email has been released to Mr. Reeves with one of the senders’ names redacted, but the issue does not relate to that redaction. The subject of the email is ‘Village Green Stantonst (sic) Quintin” and the body of the email reads:

“URGENT

Trying to contact Department no Joy

Have agreed a extension with Janice Green, have deleted email Cllr Andrews”

On 15 August 2022 Mr. Reeves emailed the Council to say that information was missing from the EIR response. In relation to item 7 he stated:

“What email has Cllr Andrews deleted at his end and where is the matching email in Wiltshire Council records?”

The Council replied on 30 August 2022 in its internal review stating:

“We have no record of the e-mail which Cllr Andrews refers to as deleted, and I am therefore satisfied that this information is not held by Wiltshire Council.”

The Commissioner says that item 7 lies outside the scope of this appeal, as it was not referred to the Commissioner and therefore was not dealt with in the decision notice. Mr. Reeves says that item 7 was included in the appeal data package as file 5. It was mentioned to the Commissioner in the emails to the ICO case officer when he asked why it was not addressed in the decision notice.

There is no doubt that Mr. Reeves has raised this issue in this appeal and has raised it in correspondence with the Commissioner following the decision notice. Further it is referred to in the internal review, so it would have been included in documents sent to the Commissioner.

The section 50 complaint to the Commissioner contains the following details of complaint:

“Wiltshire Council as the Commons Registration Authority (CRA) is processing a Town or Village Green (TVG) application to make the land between my property and the roadway into a TVG. This has the potential to make my house worthless and sterilise the land it sits on for development. Pipes, cables, etc. in a verge become criminal if the land is made TVG. Wessex Water have go so far as to ask to be treated as an objector too. As you can see full disclosure either by FOI or SAR is clearly important in the public interest. The CRA has refused to keep me informed on and indeed has has failed to do so, hence I need to submit regular FOI request to know what is being claimed and to fact check these claims. The recent FOI response included 6 emails which were partially redacted. I submitted a FOI review request and also an SAR request for these 6 emails as from the unredacted sections it seem more than likely that the redacted sections referred to me, my family, or my property. I asked that both FOI review and SAR were processed in parallel. No unredacted emails have been released. Neither the FOI review nor the SAR have explained why this is taking so long for 6 short emails which have all found. I believe that these emails are being deliberately withheld because they contain information that could be useful in the coming public inquiry. They are also stopping me correcting any false information about me in these emails.”

It is clear from this section that Mr. Reeves is complaining about the redactions to 6 emails that have been released to him. He makes no reference to any further information that he says is held but has not been provided. The fact that the Commissioner was sent the internal review documentation relating to those 6 emails which also included reference to item 7 is not sufficient to constitute a section 50 complaint about that issue.

On the basis of this the Commissioner limited the scope of his investigation and her decision notice to the question of whether or not the Council was entitled to withhold the information redacted from those 6 emails.

As the question of whether further information was held by the Council (specifically the deleted email referred to in item 7) was not raised in the section 50 complaint, has not been investigated by the Commissioner and did not form part of the decision notice, the tribunal has no jurisdiction to deal with this part of the appeal.

The question of whether or not further information was held by the Council is outside the scope of this appeal for the reasons set out above. The tribunal therefore does not have jurisdiction to consider the adequacy of the Council’s search.

The question of whether or not the Commissioner's investigation was adequate is outside the jurisdiction of the tribunal in any event.

Items 2 and items 3 & 4 have been provided to the tribunal in unredacted form at p 8 and 9 of the closed bundle. ‘Items 3 & 4’ is, in reality, just one document/one email. The information highlighted in yellow is said to be third party personal data and the information highlighted in blue is said to be Mr Reeves personal information. The redacted versions are at p 24, 26 and 27 of the open bundle.

The Council has confirmed that some of the original redactions were house numbers but makes clear at p 160 of the open bundle these should not have been redacted because it is quite clear from the remainder of the e-mail which addresses are being referenced. As it is quite clear from the e-mail which addresses are being referenced it is not necessary to deal with the redactions of the house numbers, because the claimant already has that information.

In relation to the redaction of third-party information, the only redactions are of Peter Cullen’s personal e-mail address. This is clearly personal data of a third party and there is no legitimate interest in the disclosure of his personal e-mail address. This information is therefore exempt under regulation 13. We note that Mr. Reeves has indicated in any event that the Council is entitled to redact email addresses.

We find that the remaining redactions are Mr. Reeves’ personal data. The information is obviously about him and he is identifiable either from the redacted section or from the rest of the email, because he is referred to as the owner of 29A. That information is therefore exempt under regulation 5(3).

Whether or not Mr. Reeves consents to the disclosure of his personal data is not a relevant consideration for this tribunal. Regulation 5(3) simply takes any personal data of the requestor outside the scope of EIR. It is intended to be dealt with under a separate regime. Once we have determined that the information is personal data of the requestor, there is no duty to provide it under EIR.

It is not a matter for this tribunal to determine whether this information should have been released in relation to the subject access request.

The Commissioner indicates in the table attached to its response that the Council was entitled to withhold this information on the grounds that it was Mr. Reeves’ personal data.

The email was initially redacted under EIR on the grounds that it contained Mr. Reeves’ personal data. Most of the email was subsequently released to him in response to a subject access request in August 2022 and there remains only one small redaction. We have been provided with an unredacted version of the email, and the remaining redacted information is the name of an individual.

Mr. Reeves’ argument is that the remaining redaction must either be his personal data, and should have been released in the response to the subject access request, or it is someone else’s personal data, in which case it should be released under EIR (if disclosure is fair and the relevant conditions are met).

We agree with the Commissioner that the email is Mr. Reeves’ personal data. It is obviously about him. The entire sentence starting ‘his behaviour’, looked at as a whole and including the redacted section, is clearly about Mr. Reeves. That entire sentence is therefore not within the scope of EIR by virtue of regulation 5(3), even though it also contains the personal data of someone else.

Under regulation 5(3) there is no duty to provide environmental information that is the personal data of the requestor. That is so even if it is also someone else’s personal data. Mixed data still falls under regulation 5(3) and is properly dealt with as a subject access request under the data protection regime.

Under the Data Protection Act a public authority faced with mixed personal data must consider whether they can disclose the third-party data to the requestor. In this case the Council, we presume, determined that they could not. The question of whether they were right to withhold that information under the DPA is not within our remit.

We appreciate that this may be an unsatisfactory answer for Mr. Reeves, but the data protection regime is intended to be a separate regime. Mr. Reeves might be assisted by reading the Commissioner’s guidance on mixed personal data. (Footnote: ¹).

The email from Janice Green to Adrian Andrews on 17 November 2020 at 14.32 is at p 36 of the bundle. That email includes the following statement:

The Council has provided to the Commissioner an email from HC to Adrian Andrews, that had been forwarded to Janice Green from Adrian Andrews. This is what the Commissioner terms ‘item 8’ and it appears at p 10 of the closed bundle.

The Council submits in its letter to the Commissioner dated 21 December 2022 that the email from HC does not relate to the village green application and therefore does not fall within the scope of the request. The Commissioner accepted this.

Mr. Reeves submits that these comments must be within the scope of the request because Janice Green, in her email of 17 November 2020, says that they are HC’s comments ‘regarding her statement in application no. 2018/01 to register land as a town/village green off Seagry Road, Lower Stanton St Quintin’.

The Council’s application to register land as a town/village green included a statement from HC. This is a handwritten document which appears at p A55 entitled ‘THE POND NOT THE VILLAGE GREEN’.

The request was for ‘copies of all photos, maps, forms, documents, emails, notes of conversations, etc. relating to the Town and Village Green applications of Stanton St. Quintin Parish Council, 2018/01 (30 April 2018) and 2019/01 (26 April 2019)’

We accept that Janice Green’s email describes those comments as ‘comments regarding her statement in application no. 2018/01 to register land as a town/village green’. If we had not seen the comments, and had simply seen that description by Janice Green, then we would also have assumed that the email/comments from HC related to the town and village green application by the Council. Having read the email it is clear to us that they do not relate to that application.

We cannot provide any further explanation without referring to the content of the email, which would defeat the purpose of the appeal. We have therefore provided a short closed annex dealing specifically with this point.

For those reasons, we conclude that item 8, the email containing comments from HC, is not within the scope of the request and does not need to be disclosed.