Case Reference: FT/EA/2024/0395
Information Rights
Before
JUDGE HUGHES
MEMBER CHAFER
MEMBER TAYLOR
Between
GIUSEPPE NICASTRO
APPELLANT
– AND –
THE INFORMATION COMMISSIONER (IC)
RESPONDENT
Decision: The appeal is Dismissed
REASONS
On 13 October 2023 the London Borough of Haringey wrote to the occupiers of three listed buildings within the borough identifying works which had been carried out without permission:
“Without listed building consent, the installation to shopfront of a Grade II listed building and the erection of a front extension in a Grade II listed building’s curtilage.”
The notices went on to specify remedial action:
Steps required to be taken
Within two (2) months from the date this notice takes effect to:
Remove the unauthorised structure to the front of the property.
Remove the unauthorised shopfront
Reinstate the front elevation to replicate the original shopfront design.
On 27 November 2023 the Appellant wrote to the council seeking information about it’s handling of the issue:
In relation to 2, 3, 4 Bruce Grove- It is not unusual for complaints to be first raised with the council who then refer matters onto their enforcement team and or Historic England. Have any such complaints been received by the council over the years? And have they been referred to Historic England? With what result?
The Council replied:
Planning Enforcement complaints for 2, 3, and 4 Bruce Grove have been received by the Council.
These complaints have not referred to Historic England.
Three Listed Building Enforcement Notices were served on 2, 3, and 4 Bruce Grove respectively following the referral of the complaints to the planning enforcement team
The Appellant then, under the Freedom of Information Act sought the information which is the subject of this appeal
Thank you for your email below, the contents of which I have noted.
Would you mind providing me with copies of the complaints lodged with the council, after due redaction of personal identifiers of course
The Council replied on 9 January 2024 relying on an exemption from the duty to disclose contained in FOIA:
We have reviewed the information we hold concerning the complaints. We are unable to redact any personal information within the complaints which could be used to identify an individual. Consequently, we believe disclosure of this information would be in breach of the principles of General Data Protection Regulation (GDPR).
Where disclosure contravenes the Data Protection Act, that information is exempt from the Freedom of Information Act under Section 40(2). Please note Section 40(2) is an absolute exemption therefore we are not required to consider whether it would be in the public interest to disclose the requested information.
This letter is a refusal notice as required by the Freedom of Information Act
After an internal review on 23 February the Council maintained this position:
I find disclosure of the information requested would constitute an actionable breach of confidence as it will enable the complainants to be identified. It is not possible even with redactions made, to provide the information requested without causing the complainant to be identified
On 7 March the Appellant complained to the Information Commissioner explaining:
The complainant is a planning consultant acting for the freeholders of the Properties in appeals relating to Listed Building Enforcement Notices (the LBENs) served by the London Borough of Haringey (“the Council”) in respect of the Properties.
The Information Commissioner accepted the complaint and issued a Decision Notice IC-293101-F6W5 on 5 September 2024. This found that the request should have been considered under the Environmental Information Regulations. Within that framework the Commissioner considered the data protection issues and concluded:
In the circumstances of this case, having considered the withheld information, the Commissioner is satisfied that the information does relate to the data subject(s). This is because it both names them and provides information from which they can be identified as it relates to them.
The complainant considers that the withheld information could be redacted so as not to identify individuals. However, the Council’s argument is that this is not possible as the individuals can be identified from details throughout the withheld information.
Having viewed the withheld information, the Commissioner accepts that the Council is correct and that it would not be possible to disclose a redacted version of the information from which the data subjects could not be identified.
The Commissioner then considered whether the material could be lawfully disclosed in the light of the provisions of GDPR Article 5(1)(a) “Personal data shall be processed lawfully, fairly and in a transparent manner in relation to the data subject” and identified as the only relevant path to disclosure as 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 require protection of personal data…”
The Commissioner then considered the three part test of the existence of a legitimate interest in the disclosure, finding that:
there is a legitimate interest in understanding the actions which are taken, and decisions that are reached, in relation to planning matters, and that the principle of transparency and openness about the planning process is of relevance in this case.
The necessity of disclosure to achieve that interest, concluding that satisfied in this case that there are no less intrusive means of achieving the legitimate aims identified
The Commissioner then balanced that legitimate interest against the rights and freedoms of the interests of the data subject, noting the question of expectations of privacy, the likelihood of causing damage or distress, the Council argued that it would be a breach of the right to privacy and its statements in the relevant Council document, the Planning Enforcement Plan, that identities would be protected unless the information was necessary for evidence in court. The Commissioner concluded that the appeal against the enforcement proceedings would not be prejudiced by the absence of this information and it was the reasonable expectation of the individuals concerned that their identity would not be disclosed to the world at large. The Commissioner therefore concluded that there was insufficient legitimate interest in disclosure to outweigh the rights of the data subjects and upheld the Council’s position.
In grounds of appeal it was argued:
1 Incorrect Application of the Public Interest Test
2 Failure to Consider Partial Disclosure
3 Unlawful Assessment Information Post-Redaction
4 Misapplication of the "Reasonable Expectation" Test
5 Procedural Unfairness
6 Failure to Provide Opportunity to Comment on Council's Submissions
7 Inadequate Internal Review Process and ICO's Failure to Address Raised Issues
8 Disproportionate Application of Regulation 13
9 Failure to Properly Consider the Environmental Context
10 Misapplication of the Disclosure Test and Failure to Disclose Available Information
11 Incorrect Reliance on Alternative Disclosure Routes
12 Inconsistency with the Council's Own Disclosure Policies
13 Belated Recognition of Request Validity and Failure to Properly Disclose Redacted Information
14 Persistent Failure to Address Specific Requests and Inefficient Complaint Handling
The Appellant has formulated what superficially appear to be 14 distinct grounds of appeal; in addition he provided a detailed statement relating to the relief sought and asserted that he had grounds for an application for costs based on “the unreasonable conduct of the handling of this case” by the Information Commissioner.
Consideration
In resisting the appeal the Commissioner noted that many of the “grounds” were outwith the jurisdiction of the tribunal since they were complaints about how the Commissioner conducted his investigation. The Commissioner identified 5,6, 7e, 11, 13e & f , 14. The tribunal endorses that conclusion; furthermore the attempts by the Commissioner to facilitate resolution by discussions with the parties after the issuing of the decision notice cannot give rise to grounds for appeal; issues around the conduct of the internal review by the Council are also not germane to the issue for the tribunal to determine.
Other “grounds of appeal” relate to the possibility of disclosing some material post-redaction of personal data or seek to elicit further information not requested by the original request, 2, 3, 10, 13. Having reviewed the information the tribunal is satisfied that the position set out by the Council in paragraphs 6 and 7 above, and endorsed by the Information Commissioner in paragraph 9 above (DN19-21) is correct; following redaction to prevent personal information being disclosed what remains is not of substance.
Grounds 1 and 9 seek to emphasise the importance of the disclosure of environmental information, 4 and 12 argue that the expectations of confidentiality are overstated and misrepresented, 8 argues that there is a failure to strike a fair balance between information rights and privacy rights. Having reviewed the material about protecting personal information from disclosure (it may be noted that the Appellant seeks to introduce a statement from the Council’s information about planning applications which are a separate process) the tribunal is satisfied that the Commissioner’s analysis is fair and appropriate.
This information request arises from the Appellant’s professional role in representing individuals with an interest in resisting the notices discussed in paragraphs 2 and 3 above. The Commissioner’s decision notice stated:
The Commissioner understands that there is an appeals process in relation to enforcement, however he agrees with the Council that the appellant will be able to proceed with the appeal in the absence of the withheld information. As the Council states, the appeal will turn on the planning merits and it is not necessary for the complainant to have the withheld information in order to proceed with a fair and unfettered appeal.
The tribunal would endorse that comment. This information request is nothing more than a collateral attack on the enforcement notice process. It has been pursued with a rigour out of all proportion to the utility of any information which could be disclosed even if all the withheld material were released.
Under the tribunal’s rules the tribunal has power to award costs “if the Tribunal considers that a party has acted unreasonably in bringing, defending or conducting the proceedings”. The Appellant has indicated that he was minded to seek costs against the Respondent. In the circumstances the tribunal would invite the Respondent to consider whether it wishes to seek an award of costs.
Signed Hughes Date: 16 June 2025