Faisal A Qureshi v The Information Commissioner

This decision relates to an appeal brought under section 57 of the Freedom of Information Act 2000 (“the FOIA”) as, against the Commissioner’s decision notice of 9 November 2022 with reference number IC 171038-F6J5 (the “DN”), which is a matter of public record.

Full details of the background to this appeal, the Appellant’s request for information, and the Commissioner’s decision are set out in the DN. The Appellant requested information on 8 May 2021 seeking disclosure of the driving licence application for Elaine Antoinette Parent from the Driver & Vehicle Licensing Agency (“the DVLA”). The DVLA is an Executive Agency of the Department for Transport being the Public Authority herein.

The DVLA refused to comply with the request, citing section 14(1) (vexatious requests) of FOIA. The DVLA then changed its position to neither confirm nor deny that it held the requested information, citing section 41(2) (information provided in confidence). Following an internal review, the DVLA wrote to the Appellant on 1 July 2021. It upheld its previous position. The Appellant lodged a complaint with the Commissioner on 1 July 2021 about the way that their request for information had been handled.

The Commissioner offered the DVLA the opportunity to reconsider its handling of the request (the Commissioner has given lengthy reasoning for this change in the DN dated 25 February 2022 which is not at issue herein). - . Having done so, the DVLA issued a revised refusal notice to the complainant on 31 January 2022. It explained that it was no longer relying upon section 14(1) but relied upon section 41(2) but it would neither confirm nor deny that it held the requested information in line with section 41(2).

The Commissioner therefore considered the scope of his investigation to be to determine if the DVLA was entitled to rely upon section 41(1) in order to withhold information in response to the request and decided that section 41(1) is engaged. The Commissioner required the DVLA to issue a fresh response, and either disclose the requested information or issue a valid refusal notice compliant with section 17 of FOIA which the DVLA has done.

The Commissioner concluded that the information sought by the Appellant was exempt from disclosure pursuant to s.41(1) of the FOIA and has set out his reasoning in the DN and further in his Response dated 9 February 2023 to the Grounds of Appeal dated 4 December 2022 (see Open Bundle ppA9 – A51.) Essentially the Tribunal unanimously accept and adopt the Commissioners’ reasoning in the DN and can find no error of Law or in the exercise of his discretion therein.

On the question: Is s.41(1) Engaged, i.e. whether there could be an actionable breach of confidence through disclosure? the Tribunal particularly endorse the assertion at Paragraph 5 in the DN where the Commissioner states;

The Tribunal take Judicial Notice of dvla INF1D.pdf (myukpost.com) which formally indicates the applicants expectation that information submitted is treated confidentially by the DVLA. The Tribunal find this confirms s.41 is engaged.

On the question: Does the information have the necessary quality of confidentiality? In the Commissioner's earlier Decision Notice on this case, IC-115824-X0W0, dated 25/02/22, dealing with the application of s.41(2), he argued that the information submitted to the DVLA did have the necessary quality of confidence. See the following paragraphs as reasoned by the Commissioner therein, which this Tribunal agree and adopt;

“23.

Information will have the necessary quality of confidence if it is more than trivial and is not otherwise accessible.  

24.

As a criminal, there is no guarantee that Elaine Parent obtained a driving license from the DVLA or did so with honest intentions.  The Commissioner acknowledges the complainant is in  possession  of a  driving license from  Interpol  Washington.  There have been documentaries, tv, movies and articles written about Elaine Parent.  Even so, the Commissioner has been unable to verify whether there is information in the public domain  that confirms Elaine Parent applied  for  a driving license  from the DVLA.  

25.

The DVLA has explained that ‘The DVLA considers that the information provided to it as part of a driving licence application and any supporting evidence has the necessary quality of confidence because it is more than trivial as it relates to a personal matter and is not otherwise accessible (i.e. only the DVLA holds this information). Additionally, the DVLA considers that, given the nature of the information, the confider of that information attached some importance to it.’

26.

The Commissioner has considered the type of information provided in a driving license application, which is likely to contain health data,  and  the  purpose for which this  information  is  provided. The Commissioner is satisfied that the information, if held, is more than trivial and is not otherwise accessible. “

Similarly, on the question:

In the DN under appeal in this case, at para.10 the Commissioner states the following, which this Tribunal agree is a relevant consideration;

That said, we do agree with what the Commissioner sets out at the beginning of paragraph 12 – “12. The Commissioner places significance on the common law duty of confidence and the assumption that the confidence should be maintained unless the public interest in disclosure is exceptional..."

Where the assumption that confidence should be maintained outweighs the public interest in disclosure, in this case rests in the fact that some of the requested information is already in the public domain; i.e. the Appellant holds a copy of the details held on the driving licence because it was made available by the US authorities. Consequently, in our view it is not necessary to divulge information which would undoubtedly be a duplication of this. Should the DVLA hold additional information, such as any medical issues, then this (if indeed it exists) should rightly be kept confidential. 

The Tribunal do not accept the premise that breach of confidentiality will deter people from applying for driving licences, as the alternatives are not to drive or to drive illegally. Most people would in any case probably be unconcerned that the information was released in this particular case, without feeling it sets a precedent that applies to them. That doesn't undermine the principal of confidentiality - the fact that the information in applications is provided to DVLA in confidence and that it is clearly a breach of confidence to release that information to the world in a FOIA response.

The Appellant's rhetorical question about who might bring an action for Elaine Parent/Sylvia Hodgkinson is irrelevant because it is neither this Tribunals function, nor the DVLA's to try to guess the answer to that question. We cannot know that there is nobody who might come forward. 

Therefore, the Tribunal need to consider actionable breach of confidence and any public interest defence in the same way we would if Elaine/Sylvia were alive. The public interest test is more commonly about disclosing evidence of wrongdoing by, or within, a public authority. Seeking evidence of criminal activity by members of the public is the function of law enforcement.

In theory, DVLA could compare records it holds for Elaine Parent and Sylvia Hodgkinson, or the Tribunal could request them, and take a view on whether they provided evidence of fraudulent activity.  In fact, everything except the one application is out of scope, and in any case, conducting such a comparison would amount to amateur detection. The appeal essentially invites people who are not detectives to play detective.

The DVLA has a restricted but straightforward role: to process applications and issue licences. It would be unworkable for them to be expected to investigate an application and ensure it isn't fraudulent. There is no obligation on them to do so in response to a FOIA request either.

All that remains is an application that contains confidential information, release of which to the world would be a breach of confidence. The exemption is engaged, and the appeal should be dismissed.

Accordingly, we must dismiss the appeal.