Penny Bence v The Information Commissioner

The parties and the tribunal agreed that this appeal was suitable for determination on the papers.

This is an appeal against the Commissioner’s decision notice IC-243711-H9P2.

This decision should be read with the tribunal’s decision of 31 May 2024 (and its closed annex) in which the tribunal decided that:

3.1.

The Council was entitled to rely on regulation 12(5)(b) to withhold communications with its legal department.

3.2.

The Council was not entitled to rely on regulation 12(5)(b) to withhold pre-existing documents or pre-existing emails either attached to or forwarded by those communications referred to in 3.1 and which do not themselves fall within 3.1.

3.3.

The Council was in breach of its obligations under EIR by failing to respond to part two of the appellant’s revised request sent to the Council on 10 February 2023.

3.4.

Some of the documents in the closed bundle are outside the scope of the request.

In the May decision the tribunal decided that it would determine the application of any other exceptions put forward by the Council in relation to the remaining information before it issued a substitute decision notice.

Since the May decision the Council has disclosed most of the remaining information. It now relies on the following exceptions:

5.1.

Regulation 5(3) EIR (personal data of which the appellant is the data subject). This is relied on to redact the appellant’s name and email address.

5.2.

Regulation 13(2A) EIR (personal data of third parties). This is relied on to redact the following:

5.2.1.

Names

5.2.2.

Contact details

5.2.3.

A small amount of other information said to be personal data.

5.3.

Regulation 6(1)(b) EIR (information requested in a particular form or format). This is relied on to redact title numbers and screenshots of HM Land Registry searches for the relevant area. The Council submits that these are available via a paid for service from HM Land Registry.

This decision contains a closed annex. The closed annex only contains a table identifying the matters referred to in the substitute decision notice above. A copy of the closed annex has been sent to the Commissioner and the Council. It has been withheld from the appellant. It is necessary to withhold the annex from the appellant because otherwise the purpose of the appeal would be defeated. This will be reviewed by the Judge on the conclusion of these proceedings and/or at the conclusion of any appeal.

These are set out in the tribunal’s decision of 31 May 2024.

As the Court of Justice of the European Union (“CJEU”) has said:

“The right to information means that the disclosure of information should be the general rule and that public authorities should be permitted to refuse a request for environmental information only in a few specific and clearly defined cases. The grounds for refusal should therefore be interpreted restrictively, in such a way that the public interest served by disclosure is weighed against the interest served by the refusal”. ( Office for Communications v Information Commissioner Case C-71/10 at paragraph 22).

This is why the EIR is deliberately different from the Freedom of Information Act 2000 (“FOIA”) in that all exceptions are subject to a public interest test and there is a presumption in favour of disclosure.

The EIR do not contain an express obligation to interpret grounds for refusal in a restrictive way, but, given the obligation to interpret the EIR purposively in accordance with the Directive the overall result in practice ought to be the same: the grounds for refusal under the EIR should be interpreted in a restrictive way ( Vesco v (1) Information Commissioner and (2) Government Legal Department [2019] UKUT 247 (TCC))

The relevant provisions of the EIR are regs 5(1) and (3), 6(1), 12(1) to (3) 13(1) and (2A):

Regulation 5 Duty to make available environmental information on request

(1)

Subject to paragraph (3) and in accordance with paragraphs (2), (4), (5) and (6) and the remaining provisions of this Part and Part 3 of these Regulations, a public authority that holds environmental information shall make it available on request.

…

(3)

To the extent that the information requested includes personal data of which the applicant is the data subject, paragraph (1) shall not apply to those personal data.

Regulation 6 Form and Format of information

(1)

Where an applicant requests that the information be made available in a particular form or format, a public authority shall make it so available, unless—

(a)

it is reasonable for it to make the information available in another form or format; or

(b)

the information is already publicly available and easily accessible to the applicant in another form or format.

Reg 12 Exceptions to the duty to disclose environmental information

(1)

Subject to paragraphs (2), (3) and (9), a public authority may refuse to disclose environmental information requested if—

(a)

an exception to disclosure applies under paragraphs (4) or (5); and

(b)

in all the circumstances of the case, the public interest in maintaining the exception outweighs the public interest in disclosing the information.

(2)

A public authority shall apply a presumption in favour of disclosure.

(3)

To the extent that the information requested includes personal data of which the applicant is not the data subject, the personal data shall not be disclosed otherwise than in accordance with regulation 13.

…

Regulation 13 Personal data

(1)

To the extent that the information requested includes personal data of which the applicant is not the data subject, a public authority must not disclose the personal data if—

(a)

the first condition is satisfied, or

(b)

the second or third condition is satisfied and, in all the circumstances of the case, the public interest in not disclosing the information outweighs the public interest in disclosing it.

(2A) The first condition is that the disclosure of the information to a member of the public otherwise than under these Regulations—

(a)

would contravene any of the data protection principles, or…

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

Any information relating to an identified or identifiable living individual

‘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)).

Regulation 5(3) EIR provides that to the extent that the information requested includes personal data of which the applicant is the data subject, the duty to provide environmental information on request does not apply. This is not subject to the public interest test.

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):

Processing 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 requires protection of personal data, in particular where the data subject is a child.

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:

1.

Is the data controller or a third party pursuing a legitimate interest or interests?

2.

Is the processing involved necessary for the purposes of those interests?

3.

Are the above interests overridden by the interests or fundamental rights and freedoms of the data subject?

The public interest test under the EIR requires us to analyse the public interest. The starting point is the content of the information in question, and it is relevant to consider what specific harm might result from the disclosure ( Export Credits Guarantee Department v Friends of the Earth [2008] EWHC 638 paragraphs 26-28). The public interest (or various interests) in disclosing and in withholding the information should be identified; these are “the values, policies and so on that give the public interests their significance” ( O’Hanlon v Information Commissioner [2019] UKUT 34 at paragraph 15). “Which factors are relevant to determining what is in the public interest in any given case are usually wide and various”, and will be informed by the statutory context ( Willow v Information Commissioner and the Ministry of Justice [2018] AACR 7 paragraph 48)

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 are:

Regulation 6(1)

19.1.

Has the appellant requested that the information be made available in a particular form or format?

19.2.

If so, is part of the information already publicly available and easily accessible to the applicant in another form or format?

Regulation 5(3)

19.3.

Is part of the requested information the personal data of the appellant?

Regulation 13

19.4.

Is part of the requested information the personal data of a third party?

19.5.

If so, are the conditions in article 6(1)(f) met i.e.

19.5.1.

Is the data controller or the third party or parties to whom the data is disclosed pursuing a legitimate interest or interests?

19.5.2.

Is the processing involved necessary for the purposes of those interests?

19.5.3.

Are the above interests overridden by the interests or fundamental rights and freedoms of the data subject?

19.6.

In all the circumstances of the case, does the public interest in maintaining the exception outweigh the public interest in disclosing the information?

19.7.

Does the presumption in favour of disclosure mean that the information should be disclosed?

We have taken account of the information before the tribunal at the previous hearing i.e.:

20.1.

An open and a closed bundle of documents.

20.2.

An email from the appellant dated 5 February 2024 which contains some additional submissions.

We have also taken account of submissions and documents provided by the parties since the previous hearing, in particular:

21.1.

Email to the appellant from the Council dated 14 June 2024.

21.2.

Submissions/questions from the appellant dated 4 July 2024.

21.3.

Submissions from the Council dated 19 July 2024.

21.4.

A GRC5 application dated 19 July 2024 from the Council with annex showing the redacted information.

21.5.

Submissions from the appellant dated 1 August 2024.

The closed bundle contains the withheld information and a redacted version of correspondence in the open bundle. The redactions are limited to those that reveal the content of the withheld legal advice. The tribunal is satisfied that it is necessary to withhold that information from the appellant and that it is not possible to reveal any further information about the content of the closed bundle otherwise the purpose of the proceedings would be defeated.

There are no closed submissions.

The appellant raises a number of issues in her email of 8 July 2024. We have taken them all into account, but the most relevant are as follows.

The appellant believes that not all the information in scope of her request has been provided. She requested information between April and September 2021 and notes that the emails provided only date from April and May 2021. She notes that only emails have been provided and no other communications. She states that a letter she received on 3 September has not been included.

The Council’s response is that all the emails within the scope of her request for communications between ‘Highways and Legal’ were provided to the tribunal and the appellant has been provided with redacted versions of any that the tribunal had determined she was entitled to.

The appellant asserts that the Council is not entitled to redact dates or the names of Council departments because they are not personal data. The Council asserts that it has not redacted dates or the names of Council departments.

The appellant asserts that land registry details cannot be obtained without the title numbers, which have also been redacted. The Council responds that a search can be made by location and the appellant is aware of the exact details of the location which is included in the disclosed information. The appellant asks for the dates of correspondence to which HM Land Registry details have been attached. She submits that access to MH Land Registry requires a reference number or address to access. The appellant would like to check the accuracy of the dates she has been given as to when her deeds were forwarded to the legal department for advice. The appellant submits that she has no way of knowing whether it is her deeds or the deeds of other properties that have been redacted.