David Wayne Rodgers v The Information Commissioner

The Freedom of Information Act (FOIA) gives some rights to members of the public to obtain information held by public bodies such as local authorities. On 7 August 2024 the Appellant made an information request of Bridgend County Borough Council. The request was headed:

The request concerned an address and an individual within the Council’s area.

“I write in connection to reference property below;

[address redacted]

Please provide copies of all documentation filed to your taxation department by [name redacted] in connection to reference above.

* COUNCIL TAX DISCOUNTS and the Medical Reasons of the DISCOUNTS.”

Please note, if your Taxations Department fails to disclose, HH J Keyser KC will be informed, that you are being obstructive.

Also in showing signs in having undue influence and conflict of interest with [name redacted]

I anticipate positive acknowledgement and response by the close of business 5pm, Wednesday, 07 August 2024.”

The statutory framework created by FOIA recognises many other interests and concerns as well as the right to information held by public bodies; these may restrict the information which the public authority may disclose. One key area where information is not released is where it is personal information about living individuals. On 17 September the Council refused relying on the exemption from disclosure of personal data set out in s40 of FOIA. The Council explained:

“Any information which we may or may not hold in relation to this part of your request would be exempt under Section 40 of the Freedom of Information Act 2000, which exempts personal data from disclosure where disclosure would breach the first data protection principle as set out in Article 5 of the General Data Protection Regulation which states:

1.

1. Personal data shall be

1.

1. Processed lawfully, fairly and in a transparent manner in relation to the data subject

(‘lawfulness, fairness and transparency);

Article 4 of the General Data Protection Regulation states that:-

For the purposes of this Regulation: (1) ‘personal data’ means any information relating to an identified or identifiable natural person (‘data subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person;

Section 40(5) of the Freedom of Information Act provides that there is no duty to confirm or deny whether we hold the information sought where even to confirm or deny would breach the rights of the person(s) who may be the subject of that information.

Therefore, under Section 40(5) of the Act we neither confirm nor deny whether any such information is held by Bridgend County Borough Council. I am sorry on this occasion we have not been able to provide any further assistance.

Therefore, to the extent set out above, this letter acts as a Refusal Notice in accordance with Section 17 of the Freedom of Information Act 2000.

If you are dissatisfied with the handling of the request, under the Freedom of Information Act 2000 you have the right to request a review of the Council’s response to your request for information. If you wish to request a review, please write to the below address or email foi@bridgend.gov.uk. Following ICO guidance, a request for a review must be made within 2 months of a response being received.”

In seeking a review the Appellant implied that there could be a conflict of interest on the part of the Council; ”My Rt.Hon. Justice Adviser and I, try not to in visage there's conflict of interest with yourselves and [name redacted] to releasing information.” He further commented “May I say, my late Mother's GP, Bridgend has been more than forth coming and has already release personal Medical data.” On 27 November the Council confirmed that “The information is exempt under section 40(5) of the foi act as set out in our response.” The Appellant complained to the Respondent Information Commissioner (IC) who investigated and on 4 April 2025 issued his decision notice IC-347138-T5H5. In the first paragraphs of that notice he summarised his decision:-

“1.

The complainant has requested information about whether a specific individual at a specific address claims a council tax discount and any medical reasons for this. Bridgend County Borough Council (the Council) relied on section 40(5B) of FOIA (third party personal information) to refuse to confirm or deny that the information was held.

2.

The Commissioner’s decision is that the Council correctly relied on section 40(5B) of FOIA to refuse to confirm or deny that the information was held.”

The decision notice went on to explore whether confirming or denying that it held information would reveal personal information

The DN set out the legal framework for disclosure, “Personal data shall be processed lawfully, fairly and in a transparent manner in relation to the data subject”. It then considered whether disclosure/processing of the data was necessary for the legitimate interests of the Appellant and whether his legitimate interests overrode the rights and freedoms of the data subject.

The IC considered that the Appellant had a private legitimate interest in the information but that the public interest in tax being administered fairly but knowing whether an individual had a discount would not satisfy this. Further there were other means of satisfying a legitimate public interest and “that if the complainant requires the information for a court case, they may request a court order asking the Council to disclose the information” which were less intrusive ways of achieving the legitimate aims identified and accordingly “providing a confirmation or a denial that the information is held is not necessary, there is no lawful basis for doing so and therefore the Council was entitled to rely on section 40(5B) of FOIA to refuse to confirm or deny that the information was held.”

In his grounds of appeal the Appellant made statements of his understanding of issues raised in connection with a contested probate case before the Chancery Division of the High Court. He argued that as joint owner of the property he was entitled to all the information about it and the individual named in the request had under- disclosed assets and defrauded HM Revenue and Customs, and this had been referred to South Wales Police/ Action Fraud.

In resisting the appeal the IC noted that the Appellant had not identified any error of law in the decision notice. The IC set out the statutory framework of data protection and his analysis of the factual circumstances supporting his conclusion that providing a response confirming whether or not such information was held was unlawful.

It is important to separate the Appellant’s strong feelings arising from the contested probate proceedings in which he is engaged (including his hope that the disclosure he has sought would enable him to advance his case in those proceedings) from the legal framework laid down by FOIA s40 and Data Protection legislation which the Council is required to follow and the IC and this tribunal must apply (the text of S40 is set out in an annex to this decision). As the IC in his response to this appeal correctly stated:

“It is irrelevant whether the Appellant jointly owns the specified property; it does not change the analysis regarding the disclosure of personal data relating to the named individual. Furthermore the fact the Appellant has reported the alleged fraud to Action Fraud / South Wales police only serves to demonstrate that there are far less intrusive means of addressing such concerns, validating the Commissioner’s conclusion that it is not necessary to confirm or deny whether or not any information is held within the scope of the request to the world at large under FOIA.”

The question for the tribunal is whether the IC’s decision is correct in law. The Appellant has not advanced any argument that there is error; he has merely asserted his desire to have the information. The IC has fully and fairly explained in his DN why the Appellant is not entitled to this information under FOIA where the rights of individuals to privacy about matters concerning their health and other aspects of their private lives are protected. In his decision notice the IC correctly identified the possible legitimate means of obtaining disclosure of the information; as an application to the court handling the probate proceedings, FOIA will not provide disclosure.

The appeal is dismissed.