Kate Sharp v The Information Commissioner & Anor

On 26 February 2022, the Appellant made the following request (“the Request”) of Herefordshire Council (“the Council”) for copies of correspondence between the Council and a named councillor of a parish in Herefordshire, to whom we refer in this decision as Councillor X:

“I request all correspondence between Herefordshire Planning Department and [Councillor X] regarding planning application [details of planning application redacted]. To include renewable technologies, reinstatement of heritage orchard and biodiversity enhancements.

I can see that [Councillor X] has sent in a letter of objection to the application dated 30th January 2022, but I have been informed that [Councillor X] has also contacted the Head of Planning and one other senior planner, or others in relation to this application and they have corresponded directly with him/given advice. I would like to see all letters, emails, records of phone calls or meetings etc regarding these exchanges.”

On 16 March 2022, the Appellant clarified the Request to the Council as follows:

“Even though we have made our FOI quite broad in terms of any correspondence between [Councillor X] and the ‘planning department’ please can you ensure that this includes conversations and correspondence with Samantha Banks (the NDP Manager or members of the team) too.”

By Decision Notice referenced IC-170328-S8Z2, dated 25 November 2022, the Information Commissioner (“the Commissioner”) upheld the Council’s refusal to disclose the information requested (“the withheld information”). This is the Appellant’s appeal against the Decision Notice.

The parties consented to the appeal being determined by the Tribunal without an oral hearing.

The Tribunal considered that the appeal was suitable for determination on the papers in accordance with Rule 32 of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 and was satisfied that it was fair and just to conduct the hearing in this way.

The Tribunal had before it two bundles, an OPEN bundle and a CLOSED bundle. The CLOSED bundle contained the withheld information. The Tribunal considered all the material in the OPEN and CLOSED bundles, a witness statement filed by the Council and held CLOSED, and all the parties’ written submissions.

The Request was made against the background of concern by the Appellant that the Monitoring Officer of a parish council decided on 20 June 2022 that Councillor X had acted in breach of the parish council’s code of conduct in that Councillor X appeared to have used their position as a parish councillor to attempt to further their personal interests in resisting a planning application made for development on land neighbouring their own. That matter was not before the Tribunal. Its relevance is only that it underpins the Appellant’s legitimate interest in seeking the withheld information; the Appellant is concerned that Councillor X has been using their position as a councillor unduly to influence the outcome of the Council’s assessment of the Appellant’s planning application.

On 24 March 2022, in response to the Request, the Council provided the Appellant with a link to certain representations made by Councillor X in relation to the Appellant’s planning application which were already publicly available, but it withheld the remainder of the requested information on the basis that it was exempt from disclosure pursuant to Regulation 13 of the Environmental Information Regulations 2004 (“EIR”) (personal data). The Council stated that “The council has not received any correspondence with [Councillor X] in [their] capacity as a Councillor.”

The Appellant requested an internal review. On 27 April 2022, the Council maintained its position. It said it had consulted Councillor X, who had confirmed that at the time of corresponding with the “planning department/neighbourhood development team”, they were acting in a personal capacity, not as Councillor; moreover, they did not consent to disclosure of their emails. The Council said there was a reasonable expectation that an individual’s right to the privacy of their correspondence should be upheld; disclosure of personal data would not be fair and lawful; and the emails in question comprised personal data rather than containing personal data and could not, therefore, be redacted.

On 27 and 28 April 2022, the Appellant pressed the Council for disclosure of specific categories of correspondence between Councillor X and the Council which she said fell within scope of the Request, and, specifically, sight of Councillor X’s correspondence with Samantha Banks of the Council’s Neighbourhood Planning Team.

On 9 May 2022, the Council informed the Appellant that it could not locate correspondence of the specific categories described by the Appellant, but it did disclose two emails between Councillor X and Ms Banks on the basis that they related to the neighbourhood development plan which was in the public domain. It is not obvious to the Tribunal that just because the plan was in the public domain, email correspondence between Councillor X and Mr Banks about the plan could or should be disclosed but that is not an issue before the Tribunal.

The Commissioner decided, by way of the Decision Notice, that the withheld information was exempt from disclosure pursuant to Regulation 13(1) EIR: it was the personal data of an individual other than the Appellant, and the condition provided for in Regulation 13(2A)(a) EIR was met, namely that disclosure would contravene principle (a) relating to the processing of personal data, as set out in Article 5 of the UK General Data Protection Regulation (“GDPR”): “personal data shall be processed lawfully, fairly and in a transparent manner in relation to the data subject”.

The Commissioner found that the Appellant was pursuing a legitimate interest, and that disclosure of the information requested was legitimate to meet that interest. He noted that Councillor X had not consented to disclosure of the withheld information; that Councillor X had confirmed they were acting in a personal capacity when they contacted the Council regarding the Appellant’s planning application and not in their capacity as a parish councillor; that the Council considered Councillor X had a reasonable expectation that their correspondence with the Council would remain confidential; and that disclosure would cause Councillor X some distress and would result in their privacy being lost.

The Commissioner concluded that that, as the withheld information was not already within the public domain and that Councillor X was acting in a personal capacity when corresponding with the Council, Councillor X had a strong and reasonable expectation that the withheld information would remain confidential. He concluded, consequently, that there was insufficient legitimate interest to outweigh the fundamental rights and freedoms of Councillor X, that there was no legal basis for the Council to disclose the withheld information, and that disclosure would breach principle (a). Accordingly, he decided that the Council was entitled to rely on Regulation 13(1) EIR to refuse to provide the withheld information.

By Notice of Appeal dated 2 January 2023, the Appellant appealed against the Decision Notice. In summary, the basis of her appeal was that there was a legitimate interest in knowing whether Councillor X was using their position as a councillor to influence the outcome of planning applications near their home, which interest outweighed their privacy right.

By his Response to the Notice of Appeal, dated 13 March 2023, the Commissioner contended that the legitimate interest in disclosure did not outweigh Councillor X’s privacy rights:

By her Reply dated May 2023, the Appellant submitted that Councillor X had no reasonable expectation that their correspondence with the Council would not be shared in the public domain; and that it was unacceptable that Councillor X could correspond with the Council and comment on the planning application “under the radar”.

On 17 August 2023, the Tribunal ordered that the Council be joined as a Respondent to the appeal, and that it should file and serve evidence addressing the following specific matters: the basis on which it maintained that Councillor X was corresponding with the Council about the planning application in a personal capacity; provision of a copy of any guidance/policy regarding the publication of representations about planning applications; an explanation as to why that correspondence was not published given the publication of Councillor X’s two previous representations in relation to the application and/or why the correspondence was said not to amount to representations which require publication; why it was material to the issues in the appeal that the correspondence was sent in Councillor X’s capacity as a private individual rather than as a parish councillor, if representations from individuals regarding planning applications are published; what was said to be the harm that would be caused to Councillor X.

By its Response to the Notice of Appeal, dated 13 September 2023, the Council submitted that:

In compliance with the directions ordered by the Tribunal on 17 August 2023 for evidence from the Council on specific issues, the Council filed a witness statement from its Information Governance Manager dated 14 September 2023. We have noted that on 15 December 2023, the Tribunal ordered that that statement be held, pursuant to Rule 14(1)(b) of the Rules, on the basis that it should not be disclosed to anyone other than the Commissioner.

The parties do not dispute, and the Tribunal finds, that the information requested is environmental information within the meaning of the EIR, which are the applicable regulations.

Regulation 5 EIR provides:

Regulation 12 EIR provides for exceptions from disclosure:

Regulation 13 EIR provides:

The first data protection principle under Article 5(1)(a) GDPR provides that personal data shall be “processed lawfully, fairly and in a transparent manner in relation to the data subject.”

Article 6 GDPR provides:

Processing shall be lawful only if and to the extent that at least one of the following applies:

The Respondents accept that the Appellant was pursuing a legitimate interest, and that disclosure was necessary for the purpose of that interest. However, they contend that disclosure would not be lawful because that legitimate interest did not override the fundamental rights of Councillor X to protection of their personal data.

We agree that the Appellant was pursuing a legitimate interest, namely seeking to ascertain whether Councillor X was taking advantage of their role as Councillor to influence the outcome of a planning application. We also agree that disclosure of the withheld information was necessary to meet that interest; that interest could not be equally well pursued without sight of the information requested.

In assessing whether disclosure would be lawful, fair and transparent, we have had regard to the Council’s policy called “Planning - Letters of Representation” which provides, inter alia, as follows:

“Personal data

The documentation for planning applications and any representations received in response to them must be made available for public inspection, in accordance with the Local Government (Access to Information) Act 1985. Provision is made within the Data Protection Act 1998 for publishing such information. This means that we cannot treat such documentation or representations as confidential. We will redact e-mail addresses, telephone numbers and signatures before publishing letters of representation online, but the name and postal address of the author will not be removed. Please do not include other personal or sensitive data within your representations.

The name and postal address of those making representations is crucial so that the Council may establish who and where representations come from so comments can be given full weight and for transparency. If you do not want your name and address to be published or do not provide both a name and postal address your comment will be treated as anonymous. Any anonymous representations will be given little or no weight in the decision making process.”

We have also had regard to the Council‘s “Redaction Procedure” which provides, inter alia, as follows:

“...

Members of the public who submit a planning application need to be made aware that the application, plans and any related documents are part of the public record. They will be made aware that any document (or part of) which they specifically request to remain confidential will not be included on the register and will not be available for public inspection.

Applicants for planning permission will be advised of the statutory duty to make documents available for any member of the public to see and to have copies of, and that the planning application documents are scanned and placed on the Internet. This is typically done through the provision of a “Privacy Notice”, made available to applicants and objectors before their personal data is processed (typically on our application forms, website and correspondence).

Any document received during the planning application process will similarly be made available electronically for public inspection. These will include consultation responses and letters of representation.

Herefordshire Council will ensure that personal information given during the planning application process which is not required as part of the public record, or else creates a risk of identity theft if made available in certain formats (such as signatures made available globally on a public web site) will not be made available on the electronic record. This information will be redacted in line with Herefordshire Council’s Document Redaction Policy and the Data Protection Act 1998 before it is made publicly available. ...”

It is evident both from the “Planning - Letters of Representation” policy and the Redaction Procedure that any representations received in response to planning applications must be made available for public inspection and cannot be treated as confidential. Although email addresses, telephone numbers and signatures will be redacted before representations are published, the identity of the person making the representations is not withheld or anonymised. We find that Councillor X cannot have had a reasonable expectation that anything they submitted by way of representation would be held confidential.

The withheld information consists of a series of email exchanges between Councillor X and the Council. Councillor X wrote their emails from what appears to be their business address, which we find for current purposes to be a personal email address, given that we understand that Parish Councillors do not have Parish Council email addresses (unlike Council employees who have a Council email address). In any event, we do not consider the identity of an email address to be determinative or indicative of the capacity in which an author sends an email under that address. It is the content which counts.

We consider that parts of those exchanges constitute what are effectively representations by Councillor X in relation to the determination of the planning application and raise material planning matters. Given that the Council makes clear that representations will be made available for public inspection, we do not consider that such information engages consideration of any privacy right enjoyed by Councillor X in relation to those representations so as to require us to weigh a legitimate interest in disclosure against that right. Disclosure of that information (subject to the redactions we indicate below) would be lawful.

We consider that other parts of the withheld information do not constitute representations but fall more naturally to be characterised as exchanges between the Councillor as a private individual and the Council. Accordingly, Councillor X’s privacy right in relation to that information is not outweighed by the Appellant’s legitimate interest. Disclosure of that information would not be lawful.

We find that one of Councillor X’s emails in the withheld information was written by them in their capacity as a Councillor. It is not evident that this email relates to the planning application, but it would appear to fall within the scope of the Request as subsequently clarified by the Appellant on 16 March 2022, namely any correspondence between Councillor X and Ms Banks of the Council. We do not consider that any privacy right is engaged in relation to it, and we consider that its disclosure would be lawful, subject to one small redaction required (identified below) of information which we find reflects Councillor X’s personal opinion on a matter i.e. not an opinion advanced by them in their capacity as Councillor, which may properly be withheld.

Of the individual exchanges of correspondence constituting the withheld information:

In the case of all the material within the withheld information, Councillor X’s email address, name and contact details on those emails constitute personal data, whose disclosure would not be lawful.

In relation to that information whose disclosure we consider would be lawful, we are also of the view that its disclosure would be fair and transparent; the former being so in circumstances where the Council make clear that representations will not be held confidential; the latter being so both self-evidently and in a context where Councillor X has been made aware by the Council of the Request, and given, and taken, the opportunity to make representations to the Council resisting disclosure. We do not agree with the Council’s assessment that disclosure of that information would cause some distress to Councillor X, as the Council put it, “with regard to an unexpected loss of privacy”, as we do not consider that Councillor X had any reasonable expectation of privacy in relation to what we have found to be a representation by them.

We find that the Commissioner erred in the exercise of his discretion and the Decision Notice involved an error of law in concluding that Regulation 13(1) EIR was engaged in respect of that information whose disclosure we have identified as being lawful, fair and transparent. The Council was not entitled to rely on Regulation 13(1) EIR to withhold disclosure of that information. To that extent, therefore, we allow the appeal, and make the Substituted Decision Notice set out above.