The proceedings were held in person.

The Tribunal considered an agreed open bundle of evidence comprising 282 pages, a closed bundle which consists of the withheld material in this case, and a skeleton argument from the Appellant.

On 11 January 2023, the complainant wrote to the Rural Payments Agency (RPA) and requested:-

The RPA responded on 8 March 2023. It disclosed information in response to the request but redacted full business addresses and CPH numbers, (Footnote: ¹) except five, under regulation 12(3) of the Environmental Information Regulations 2004 (EIR). The Appellant requested an internal review on 10 March 2023, and raised concerns aboutinformation that was outstanding and also the RPA’s application of regulation 12(3) EIR. On 12 May 2023 the RPA provided the outcome to its internal review. It disclosed the information the Appellant had identified as outstanding but upheld its previous position in relation to regulation 12(3) EIR for the full business addresses of the relevant farmers and the CPH numbers, except five, under regulation 12(3) EIR. The Appellant then complained to the Commissioner.

Section 39 FOIA exempts environmental information from disclosure by a public body under the provisions of FOIA, and such information is covered by the EIR. It is common ground in this Appeal that information in respect of BPS Applicants’ grazing rights, eligible hectares and species of animals on the New Forest common land would constitute ‘environmental information’ within the definition of Regulation 2 EIR. Once it is established that environmental information is held by the public body the EIR creates a presumption in favour of disclosure of information that relates to or affects the environment. However the duty of a public authority to make environmental information available on request is subject to certain exceptions, set out in Part III of EIR. For the purposes of this case, the relevant exceptions are found in Regulation 12 EIR which provides so far as is relevant:-

Regulation 13 provides in part:-

The definition of personal data is found in the Data Protection Act 2018 which reads insofar as relevant:-

The first data protection principle is set out in Article 5 of the UK General Data Protection Regulations (UK GDPR) which reads so far as relevant:-

In order to be processed lawfully, one of the lawful bases listed in Article 6 of the UK GDPR must apply to the processing. The only potentially applicable basis in this case is in Article 6(1)(f) of the UK GDPR which reads insofar as relevant:

Case-law has established the ‘legitimate interest’ basis for processing is subject to a three-part test, as applied by the Commissioner in this case. The three-part test is:-

The processing of personal data will be unlawful (and so a public authority will be entitled to withhold it under the EIR) if any limb of the three-part test is not met.

In the decision notice of 3 October 2023 the Commissioner applied this legal framework:-

This last point is a reference to a previous Commissioner decision notice IC-129710-S4X2. (Footnote: ²)

The Commissioner noted that the fact that information constitutes personal data doesnot automatically exclude it from disclosure under the EIR and that the Commissioner also needed to consider whether disclosure of the requested information would contravene any of the data protection principles. The most relevant data protection principle in this case is the principle in Art 5(1) (a) UK GDPR which states that ‘Personal data shall be processed lawfully, fairly and in a transparent manner in relation to the data subject’ as set out in the legal framework above.

In considering the application of Article 6(1)(f) UK GDPR (as set out above), the Commissioner applied the tripartite test (also set out above). Thus:-

The Commissioner concluded that as the Appellant ‘is concerned with changes to the ways that basic payment scheme monies are calculated in relation to New Forest common land’ that this ‘is a valid legitimate interest’ for the Appellant.

In relation to whether disclosure is necessary for that legitimate interest the Commissioner said:-

That meant that the Commissioner needed to go on and consider the balancing test:-

The Appellant filed an appeal dated 23 October 2023. As in her original request, the Appellant set out the background to her request:-

The Appellant sets out a history of previous requests for information and refers to a judicial review application in 2020 as a result of which ‘the RPA changed the rules for the 2021 BPS year and awarded reference amounts based on the maximum number of animals for which ‘marking fees’ had been declared in any year between 2015 and 2020’. The Appellant concludes:-

The Commissioner responded to the appeal. The Commissioner notes that:-

In response the Appellant states:-

At the hearing the Tribunal heard from the Appellant in person, and the Commissioner did not appear at the hearing.

The Appellant told us about the need for there to be a sustainable future in the New Forest and that was her key interest in having the information sought. As much information as possible is needed for this purpose. The Appellant was concerned that farmers were turning out more animals than they had previously, in order to increase the subsidy available. She explained that it was not enough to have the names of all those in receipt of BPS and how much they received. It was also necessary to have the addresses and the CPH number. The address was necessary so it could be seen where the animals were coming from. For example, although part of the postcode is provided this would apply to a very large area (for example BH24 contains 57 square miles). Farmers were likely to turn out animals into the New Forest close to the address where they are farming. The address of farmers will also reveal where animals are brought to the New Forest area from farmers based outside the area, or where there are absentee farmers.

The CPH number provides a greater degree of precision than a postcode. The CPH number was also important for controlling disease, and the Appellant also thought that some farmers with no CPH number were putting out animals into the New Forest. The Appellant was of the view that most farmers would consent to their address being disclosed.

In her skeleton argument for the hearing the Appellant has explained in detail the background to her case (and that of others) that the ‘public can have no confidence that the New Forest BPS has been administered competently and transparently’.

She identified the main legitimate interests of the public in the disclosure of the personal information requested as:-

She also said that ‘disclosure of addresses and CPH numbers is appropriate in this case because the claimants are all acting in a business capacity, are in receipt of public funds and are required to contribute positively to the environment as a condition of receipt of those funds’.

The Appellant pointed out that there was a ‘Personal Information Charter’ which related to those involved with the Rural Payments Agency (RPA). In relation to payment schemes it states that in relation to recipients: - (see A123 in the bundle)

The Appellant took us to some recitals from EU Regulation 1306/2013 (but not the Regulation itself) and argued that more information could be expected to be disclosed. She pointed out that recital 76 of Regulation 1306/2013 refers to “...the role played by civil society, including by the media and non-governmental organisations and their contribution to reinforcing the administrations’ control framework against fraud and any misuses of public funds, should be properly recognised”, and that Recital 84 of Regulation 1306/2013 states:-

However, we noted in the hearing that Recital 79 for example states that:-

There was a discussion about the number of farmers who received the RPA (these are the people whose personal data is sought). The personal data is not available where the payments are less that £1250 (2022-23) or €1250 (2021-22), as these payments are anonymous. About 450 farmers applied for the RPA but only 265 received payments. There are about 600-700 farmers who have rights to put out animals who do not get payments. The Appellant said that within these 265 are many who put out a large number of animals. However, it is the case that two-thirds of the farmers do not get subsidies and therefore their personal data will not be within the scope of the request.

The Tribunal asked about the responsibility of other bodies responsible for the sustainability of the New Forest, including DEFRA and a body known as the Verderers. In the bundle (at A172) the Appellant had included an extract from the Countrywide Stewardship Scheme 2002 which was said to be an agreement between DEFRA and the Verderers. Under the heading ‘Grazing in the Open Forest’ is the following:-

The Appellant accepted that the Verderers had powers and responsibilities in relation to the sustainability issues with which she is concerned, but was not of the view that they discharged these functions effectively.

The Appellant agreed that the current scheme for payments, which she opposes, will be completely phased out by 2027.

The Appellant drew our attention to the case of DH v Information Commissioner & Anor [2016] UKUT 139 (AAC), where the Upper Tribunal held that a FTT had erred in finding that the name of a councillor who had not paid his council tax should be exempt from disclosure under FOIA, and submitted that those in receipt of public subsidies should expect to have their personal data disclosed.

It was clear in the hearing that the Appellant has a long-standing and deep commitment to a sustainable future for the New Forest (where she lives and farms) that has led to her to take issue with the running of the BPS system by the RPA. This has led to freedom of information requests and complaints to the Commissioner, and judicial review applications, and we understand that the present system is indeed to come to an end in 2027. We have no doubt that the interest of the Appellant behind these requests is a motivation to change the present way subsidies are paid to farmers in the New Forest, to increase accountability in relation to the expenditure of public money, and the sustainability of the New Forest.

However, it is not the role of this Tribunal to pass judgment on the way the processes have been administered in the past or to pass comment on the need for change in the future. Our role is only to decide whether the relevant exemption in the FOIA claimed has been correctly applied.

As both parties agree, it is not in dispute that the requested information constitutes personal data within the definition of s3(2) DPA, and our sole role is to decide whether the statutory framework requires the disclosure of this personal data to the Appellant.

Therefore, the task of the Tribunal is to apply the three-part test for the application of Article 6(1)(f) of the UK GDPR as set out above.

As noted above the Commissioner concluded that as the Appellant ‘is concerned with changes to the ways that basic payment scheme monies are calculated in relation to New Forest common land’ that this ‘is a valid legitimate interest’ for the Appellant. The Appellant expanded on this issue in her skeleton argument as set out above and before us, the Appellant broadened out her interest to say that her concern was for a sustainable future for the New Forest, which we think can include the interest identified by the Commissioner, and the matters set out in the skeleton argument, and which in our view is a legitimate interest.

In relation to whether disclosure is necessary for that legitimate interest, as recorded above, the Commissioner said that information had been disclosed to the Appellant showing the number of animals each applicant has, as well as the allocated area of land and in which area of the New Forest the applicant is based. The names of the applicants for BPS and the amounts received have also been disclosed. However, the Commissioner concluded that:-

We note that the Commissioner does not explain why the Appellant would need to see each individual application to pursue her concern that ‘the methodology for distributing monies is flawed’. The Appellant was able to tell us that the amounts recorded as being paid to her under the scheme were wrong, but it is not explained whether she would be able to make the same deductions if the withheld information was disclosed. In any event, she already knows the name of each recipient and how much money was received, all she does not know is the address of each applicant and their CPH number. As noted above, from the information now disclosed by RPA, the Appellant also knows how many animals each applicant has. It does seem to us that if the Appellant wanted to know if other recipients were being paid the wrong amounts, it would be relatively easy to contact them (as she already has their names).

It may be of course that other recipients would not want the Appellant to ‘scrutinise’ whether the right amounts have been paid and would be content to pursue the issue themselves with the RPA if they think there has been an error.

Before us the Appellant declared a more general interest in finding out as much as possible about the operation of the system and this included information about the exact locations of farms from which animals originated. But as noted above, the information now withheld would not necessarily assist greatly in that endeavour as only about a third of farmers receive subsidies, and so if the information were disclosed then she would only be receiving part of the information she says she needs.

The question then arises as to whether there are other ways to meet the Appellant’s legitimate interests other than requiring the disclosure of personal data. It is clear that the Appellant has a deep felt and sincere concern about the sustainable future of the New Forest, and does not believe that the correct systems have been in place to protect it. The Appellant has had some success in challenging the payments system in place by way of judicial review. However, as explored with the Appellant there are other bodies who have responsibility for the New Forest which include DEFRA and the Verderers. It seems to us that those bodies are better placed to provide the protection the New Forest needs and (at least in the case of DEFRA) will have access to a broad range of information to fulfil their roles.

Having taken those matters into account, it did not seem to the Tribunal that disclosure of the information sought was ‘necessary’ to meet the legitimate interests identified by the Appellant for the following reasons:-

The Tribunal having reached the conclusion on the necessity of disclosure, it is not required to go on to consider the third part of the test, but as the Commissioner reached this stage in the decision notice, we will review what the Commissioner and the Appellant have said on the issue.

The Commissioner noted that the RPA had contacted a number of the data subjects about disclosing the information sought to the Appellant and none of them consented to the disclosure of their addresses and CPH numbers. The Commissioner also noted that the RPA said that ‘The requested information was collected for the purposes of RPA's public tasks under Basic Payment Scheme processing’ and that, in the view of the RPA the data subjects would not reasonably expect their personal data to be processed for purposes other than those for which it was initially collected.

The Appellant wanted to emphasise the overall importance of creating a sustainable future for the New Forest and was of the view that the data subjects would support that aim and understand the need for disclosure of their addresses and CPH numbers for that purpose.

However, although the Tribunal can see that disclosure of the information might assist the Appellant in pursuing her aims, it is our view that there is a strong expectation that the disclosure of residential addresses (which is not provided for in the RPA Personal Information Charter) would not occur without the consent of the data subjects. We do not agree that this case is analogous to that of DH v Information Commissioner set out above. There is no indication of any wrong-doing by the applicants for BPS and in any event their names are in the public domain already. There is nothing in the recitals of Regulation No 1306/2013 provided to us by the Appellant which suggests that more personal information than that provided for in the Charter should be disclosed.

The Tribunal has already expressed its doubts about the usefulness of the information in any event for the legitimate interests of the Appellant and pointed out the other means by which those interests can be protected.

If the Commissioner is correct that disclosure is necessary to meet legitimate interests then the Tribunal agrees with the Commissioner’s conclusions that legitimate interest in the personal data requested does not outweigh the rights and freedoms of the data subjects concerned, not to have that personal data disclosed.

Having reached our view above we have also considered, as we must, the presumption in favour of disclosure set out in regulation 2(2) EIR. As was stated in Vesco v Information Commissioner [2019] UKUT 247 (AAC), paragraph 19, the purposes served by the presumption are (1) to provide the default position in the event that the interests are equally balanced and (2) to inform any decision that may be taken under the regulations.

In this appeal, in our view the interests are not evenly balanced (and are clearly in favour of non-disclosure) and therefore applying the presumption does not affect our conclusions, and considering the presumption reassures us that we have reached the correct decision.

On that basis, this appeal is dismissed.