First-tier Tribunal
(General Regulatory Chamber)
Information Rights
Appeal Reference: EA/2019/0101
Heard on the papers
On 28th October 2019 and 16th December 2019
Before
JUDGE
MISS FIONA HENDERSON
TRIBUNAL MEMBERS
MR DAVE SIVERS
MR NIGEL WATSON
Between
MR JULIAN CHEYNE
Appellant
and
THE INFORMATION COMMISSIONER
Respondent
And
LEE VALLEY REGIONAL PARK AUTHORITY
2nd Respondent
DECISION AND REASONS
1. The Appeal is allowed in part for the reasons set out below.
Introduction
2. This is an appeal against Decision Notice FER0762114 dated 5th March 2019 which held
that the requested information is not environmental information and that the Lee Valley
Regional Park Authority therefore had no obligation to provide it under EIR.
1
3. Background
Lee Valley Regional Park Authority (LVRPA) is a statutory body responsible for
managing and developing Lee Valley Regional Park. Part of the authority’s
responsibilities are regenerating derelict and neglected land into high quality public open
spaces and wildlife habitats of ecological importance, as well as preserving the region’s
historical value.1
4. In 2014 LVRPA appointed Pinny Grylls their designated “filmmaker in residence” for
2014.2 They funded a project filming local people visiting the Authority’s parkland areas
and describing what it means to them. As a result of this project a film was made by Pinny
Grylls however, this was never released in full. Ms Grylls’ evidence is that she “was not
sure which of the final versions I sent had been approved for public release in the end – if
at all- as there was various requests to cut this and that – and in the end I think I did not
finish the final release form paper work due to this confusion. I was awaiting final
confirmation. The normal procedure is that a film needs picture lock and final approval
for public release sign- off before this work is completed”.3
5. The LVRPA Commissioning Officer ended his employment with LVRPA prior to
completion of the project and his successor has also now left so there is no direct
information from them before the Tribunal. LVRPA did not release the film as they said
they were unable to satisfy themselves that image release consents had been obtained for
those who appear in the film, and the film contains footage of activities that the LVRPA
would not seek to promote. They released 3 extracts on their website/youtube but
withdrew these once they considered the implications of the personal data of those
featured.4
6. It is the Appellant’s understanding that the film was one of several community projects
paid for from a fund intended to benefit Walthamstow and Leyton Marshes and park users,
as a form of public compensation for the disturbance caused by the construction of a
temporary basketball training venue on Leyton Marsh during 2012. LVRPA have
indicated that the film contains “general footage of unknown persons undertaking
activities such as small social gatherings, dog walking and religious ceremonies and of
homelessness within mainly unidentifiable natural landscapes much of which cannot be
verified as the Authority’s land”5
Information Request
7. On 8th January 2018 the Appellant wrote to LVRPA asking for (amongst other things6):
“a copy of the film made by Pinny Grylls which I understand was commissioned by the
LVRPA”.
LVRPA responded on 8th February 2018 refusing to provide the film as it was intended to
publish it later (s22 FOIA) and providing some documentary information relating to the
1 https://www.leevallepark.org.uk/en/content/cms/corporate/about-us/
2
P119
3
P210 OB email of 11.11.19
4
Excerpt 1 is part of the open bundle, Excerpts 2 and 3 are part of the closed bundle. All 3 excerpts come from the copy of the film that
forms the disputed information.
5 P89
6
Along with other information relating to its use, commission and effectiveness
2
rest of his request7. The Appellant wrote on 2nd March 2018 asking for a description of the
film and its contents, referencing the 3 excerpts online and asking for further details of the
process by which the film was made. He wrote again on 7th March 2018 stating:
“I also note that you did not answer my request for a copy of the film or films or refer to
this in your response. I would again ask for a copy of the film or films”.
8. LVRPA advised the Appellant on 9th March 2018 that it was not subject to FOIA8 but had
voluntarily adopted the process. LVRPA refused to provide the film relying upon s40(2)
FOIA.9
9. On 29th May 2018 the Appellant wrote to LVRPA stating that his request should have been
dealt with under EIR. He also made a request for information relating to the policy on
consents, copies of correspondence with Ms Grylls concerning consents and permissions
and for more details of the kinds of activities LVRPA did not endorse.
10. LVRPA provided a response relating to the information it had regarding the new requests
and stated that it had previously advised the complainant that the film would not be
provided.
11. The Appellant complained to the Commissioner on 3rd July 2018 stating:
“I wish to complain against the Lee Valley Regional Park Authority for its failure to
supply a copy of the film it contracted to be produced on its behalf”10
He further added on his complaint form:
“I made this request under Freedom of Information but realised later that this should
probably have been an Environmental Information Request. The Authority refused to
provide the film even when I pointed out that it should have been an EIR.”
During the course of the Commissioner’s investigation LVRPA accepted that it should
have considered the request of 29th May 2018 as a new EIR request and separate from the
original FOIA request11. However, it refused to provide the video under reg 12(4)(a) EIRs
(the information is not held) as it maintained that it does not contain environmental
information as defined in regulation 2 (1) EIRs.
12. Following an investigation the Commissioner concluded that the information was not
environmental information as it did not fall with Reg 2(1)(c) EIRs as the “measure” relied
upon (namely the decision to commission a film about the authority’s parkland with a view
to promoting the area) would not affect or be likely to affect the elements and factors
referred to in Reg 2(1) (a) or (b), neither is it designed to protect those elements.
The Appeal
13. The Appellant appealed by notice dated 30th March 2019 12 . In this he asked that the
Commissioner’s decision be reversed and the LVRPA be required to disclose the film.
7 We observe that it does not appear that the Appellant was given a complete response as the standard contract that was
applicable was not disclosed at that stage. It is not within the scope of this request and has now been provided to the appellant
as part of the open bundle.
8 This is not disputed, they are not listed in Schedule 1 FOIA
9 Refusal to disclose film dated 3rd April 2018 and internal review of 6th April 2018
10 P55
11 P83
12 P8-13
3
14. The Commissioner reviewed her decision and now concedes that the requested
information is environmental information. Whilst she maintains that she was correct in her
application of reg 2(1)(c) EIRs she accepts that she failed to consider Reg 2(1)(a) and now
accepts that the information is environmental information as it is information in visual and
aural form “on” the state of a landscape and natural site. She has gone on to consider
whether the information is nonetheless exempt from EIRs. Her view is that to the extent
that identifiable individuals are shown contravening the Park’s bylaws disclosure would be
unwarranted and the information should be withheld to that extent.
15. LVRPA were joined by the Registrar on 30th May 2019. In their response dated 9th July,
they:
i. challenge the application of Reg 2(1)(a) EIRs to the entirety of the film
as some of the film cannot be verified as being their land. As such they
invite the tribunal to re-consider the conclusion that the film in its
entirety is a record of the state of LVRPA’s Marshes.
ii. In the interests of pragmatism invite the Tribunal to allow the appeal
except for the parts showing individuals in breach of the bylaws (for
the same reasons identified by the Commissioner in her response).
Procedural Issues:
16. All parties have consented to the case being determined on the papers. The appeal was
considered at a paper hearing on 28th October 2019 and adjourned as the panel did not
have sufficient information to determine the issues raised by the appeal. In particular the
Tribunal sought further submissions upon:
• whether the film contains “sensitive personal data 13 ” or “special category 14 ”
personal data.
• the status of the activities alleged to be in breach of the bylaws (including whether
LVRPA had consented to this by filming).
• What consent from data subjects for disclosure had been obtained.
• The impact (if any) that the purpose of the film had upon the expectation of the
data subjects.
• Redaction.
17. Following the adjournment, the Tribunal has received submissions from the parties and
further evidence from LVRPA. The Tribunal has had regard to all the documentary
information before it: an original open bundle of 209 pages, a copy of the withheld film
and the open and closed evidence and submissions in response to the Tribunal’s
adjournment directions. The Tribunal is satisfied that it now has sufficient information to
determine the case.
Scope
18. The Appellant’s complaint to the Commissioner specified the “failure to supply a copy of
a film it contracted”. The Tribunal reminds itself that the right of appeal lies from the
13 DPA 1998
14 Article 9(1) GDPR
4
Decision Notice which arises out of a complaint to the Commissioner15. Consequently, we
are satisfied that the disputed information comprises the film (and not any of the other
items that were requested in the associated correspondence from January to May 2018).
Rule 14 application
19. The ICO and LVRPA applied for their closed submissions and closed evidence to be
withheld pursuant to rule 14(6) GRC Rules. The closed evidence consists of:
• 2 excerpts from the withheld film,
• Consent forms from participants in the film,
• A character log.
20. We are satisfied that these should be withheld pursuant to rule 14(6) and in reaching this
decision we have had regard to the overriding objective as set out in rule 2. We are
satisfied that disclosure of the excerpts would defeat the purpose of the appeal as they
form part of the withheld material. The consent forms and character log provide the
personal data of those whose personal data rights are the subject of this appeal. However,
we are satisfied that a blank copy of each type of consent form should be placed in the
open bundle with all personal data removed. The closed submissions refer directly to the
content of the withheld film and disclosure would defeat the purpose of the appeal. We
are satisfied that the substance of the arguments applying to the withheld material have
been advanced in the open material.
Environmental Information
21. There is no dispute between the parties16 that LVRPA is a public authority for the purposes
of EIR pursuant to regulation 2(2)(c)EIRs which defines “public authority” as:
“any other body… that carries out functions of public administration”.
Applying Fish Legal and Shirley v IC EU: C: 2013:853 we rely upon the fact that the
LVRPA was established by statute (the Lee Valley Regional Park Act 1966) to provide
services in the public interest and pursuant to s28 of that Act has the power to make
Bylaws.
22. There is no substantive challenge to the Commissioner’s reasoning17 in which she accepts
that the film is environmental information because it falls within the definition of
environmental information within reg 2(1)(a) EIRs. LVRPA’s challenge is to the
Commissioner’s conclusion that the film shows the state of the Marshes because some of
the film may show other areas. The Tribunal is satisfied that this is not material. The duty
imposed by Reg 5(1) EIRs is that:
“a public authority that holds environmental information shall make it available on
request”18. The Tribunal is required to consider what environmental information is held by
the public authority. The environmental information does not have to relate to land under
the ownership or control of the public authority. Similarly, when assessing (pursuant to
reg 2(1)(a) EIRs) whether the information that is held is “on” :
15
S50(1) FOIA: 1)Any person (in this section referred to as “the complainant”) may apply to the Commissioner for a decision whether, in any
specified respect, a request for information made by the complainant to a public authority has been dealt with in accordance with the
requirements of Part I.
16 ICO paras 16-21, LVRPA concede this by responding under EIR p83 letter??? That LVRPA is a public authority is part of the
Appellant’s case.
17 Aras37-40 response p 27-8 OB.
18 Subject to the parameters of the rest of the EIRs
5
“the state of the elements of the environment, such as … landscape and natural sites
including wetlands …”
there is no additional requirement or provision for the landscape or natural sites concerned
to be linked to the public authority that holds the information.
23. We are satisfied that the entirety of the film is held by LVRPA. We have viewed the film
and on its face, from its purpose as evidenced in the proposal and documentation
surrounding its creation, we are satisfied that the entirety of the film (regardless of the
ownership of the land concerned) falls within reg 2(1)(a) EIRs and is therefore
environmental information. To this extent the appeal succeeds.
Personal Data
DPA 1998 or DPA 2018 and GDPR?
24. The Commissioner and LVRPA rely upon r13(1) EIRs to withhold the film. An issue
arises as to which legislation to apply in considering the request. The Commissioner in her
submissions and correspondence with LVRPA during her investigation uses the
terminology of the DPA 1998 whereas the Appellant and LVRPA have applied the
terminology of the DPA 2018 and GDPR. The DPA 2018 came into force on 25th May
2018 as such it is material for the Tribunal to consider the date of the request. We have
not adjourned the case to seek specific submissions as to which regime to apply as we are
not satisfied that this is proportionate19. We are satisfied that our decision would be the
same were we to have applied DPA 199820.
25. As set out above, although the initial request was made in January 2018, that request was
considered under FOIA on a “voluntary” basis as LVRPA are not a public authority under
FOIA. Although the request for a copy of the film echoes part of that initial request, the
Appellant only asked for it under EIRs on 29th May 2018 which was after the new
legislation had come into force. Although the refusal of the request under EIRs referred
back to an earlier response made under the 1998 legislation, we rely upon LVRPA’s
identification of the date of the request as 29th May 2018 in their EIR response provided
before the Commissioner. We are satisfied that the effective date for the date of the
request is 29th May 2018. When LVRPA received the 29th May request, they were
required to consider the basis (under EIRs) upon which they were not obliged to supply the
19 Overriding objective rule 2 GRC Rules, in particular consideration of delay and resources.
20
The Tribunal is satisfied that it would reach the same conclusion applying the DPA1998. We observe that the definitions of special
category data and criminal offence data reflects the definitions of sensitive personal data at s 2(c) and 2(g) DPA 1998. Similarly the Article
9(2) (a) and (e) GDPR and Schedule 1 (29 and 32) conditions of DPA 2018 correspond to Schedule 3 conditions (1) and (5) under DPA
1998. Schedule 2 condition 6 is equivalent to Article 6(f) except for the additional requirement to pay specific attention to whether the data
subject is a child, which is a factor that we would take into consideration in any event in relation to expectation and whether intrusion was
warranted.
6
film pursuant to reg 5(1) EIRs. At the date when they first addressed their mind to EIRs
(based upon the exemptions now being considered) they would have had to consider the
terms of regulation 13 EIRs which by 29th May had been amended21 to apply DPA 2018
and GDPR. As such we are satisfied that this is the legislation that we must apply in
determining this appeal.
Regulation 13 EIRs
26. Regulation 13 EIRs provides so far as it is relevant:
(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, …
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….
Is the information Personal Data?
27. We have had regard to the disputed information and are satisfied that it contains personal
data. Personal data is defined in s3(2) DPA 201822 as:
any information relating to an identified or identifiable living individual
data subject is defined in s3(5) as:
the identified or identifiable living individual to whom personal data relates.
We are satisfied from this that the visual image of an individual or their voice constitutes
their personal data. We have had regard to clothing and are satisfied that where a face is
not visible but clothing is distinctive and recognisable they are identifiable. In determining
whether an individual is identifiable we have had regard to self identification and
identification by close family and friends as well as someone more generally identifiable
to the public. We have provided a closed annex with each instance where we have
identified that personal data occurs and our decision relating to disclosure based upon the
application of the general principles as set out in the open decision.
Would disclosure be lawful?
28. The first data protection principle is set out in Article 5(1) of the GDPR23 which states:
a) Personal data shall be processed lawfully, fairly and in a transparent manner in
relation to the data subject.
Article 6 provides that:
(1) processing shall be lawful only if and to the extent that at least one of the following
applies:
a) the data subject has given consent to the processing of his or her personal data for one
or more specific purposes; …
21 Environmental Information Regulations 2004 Modified by Schedule 19 Part 1 Paragraphs 305-309 of the DPA2018
22 Pursuant to EIRs r 2(1)
23 Pursuant to EIRs reg 2(1) and DPA 2018 s85
7
e) 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, in particular where the data subject is a child.
Is the information special category data?
29. Additional considerations apply if the information is “special category data” which is
defined in Article 9 of the GDPR. ‘Special category data’ includes personal data about an
individual’s “religious or philosophical beliefs”.
30. In assessing whether any of the personal data falls within this category (and as specified in
the closed schedule) we agree with the Commissioner that information that reveals or
concerns these details is caught within this definition. The Commissioner has applied a
test of a reasonable degree of certainty as to whether data should be treated as special
category data. We agree and have had regard to the reasonable inference to be drawn from
the film in terms of anything seen or heard, the context and appearance of those concerned.
As set out in the closed schedule there are some parts of the film which we are satisfied
contain special category data.
31. Disclosure is prohibited by Article 9 unless one of the exemptions in Article 9(2) applies
namely:
a) the data subject has given explicit consent to the processing of those personal data for
one or more specified purposes …
e) processing relates to personal data which are manifestly made public by the data
subject;
32. In this case a number of the data subjects in the film have signed consent forms. We have
ruled that specimens of the proformas should be placed in the open bundle. It is implicit in
the terms of Article 9 that the consent should relate to the disclosure of the special
category data (in addition to consent for any other personal data). We have had regard to
the annotations on some of the consent forms and are satisfied that to the extent that that
activity is represented on the film the consent is for the personal data associated with that
religious or philosophical belief. Whilst EIR is not explicitly referred to, the terms of the
consent are extremely wide and in our judgment is agreement to public dissemination to
the world at large and hence consistent with disclosure under the EIRs.
33. When assessing whether the personal data has been manifestly made public by the data
subject we have had regard to the context. We have considered whether the filming
appears to be in a public place, whether it appears that the data subjects knew they were
being filmed and whether knowledge of filming was consistent with an expectation of
being seen by the wider public (rather than e.g. a friend videoing for personal use).
Conclusion on Special Category Data
34. As set out in the closed schedule:
i. there is one part of the film which we withhold as special category data. If (as appears
to us) there is no consent form that would cover all those present, we are not satisfied
that the data subjects have manifestly made public the special category personal data.
We have had regard to the nature of the activity depicted, the context and the extent to
8
which it would have been perceived by those present to be viewed by the public. No
Article 9 condition being met, the data must not be disclosed as disclosure would be
unlawful and therefore contravene principle (a). As set out below we are satisfied that
this part of the film can be anonymised to redact the identities of those present.
ii. There is another part of the film we are satisfied is special category data but which we
are satisfied can be disclosed. It appears to us likely (but it is a matter for LVRPA to
clarify with Miss Grylls) that the consent of those present has been obtained.
However, even if it has not the Tribunal having regard to the interaction with the
camera of those present, the location and the nature of the event, we are satisfied that it
has been manifestly made public by the data subjects.
iii. The Tribunal considered a third excerpt but is not satisfied that it is special category
data due to the lack of clarity as to the activity taking place and its motivation. This
excerpt is nevertheless not disclosable pursuant to Article 6(f) GDPR following the
reasoning set out below and in the closed schedule.
Is the information criminal offence data?
35. There are also separate safeguards for personal data relating to offences 24 and “the
alleged commission of offences by the data subject25; …”
36. LVRPA argue that breaches of the bylaws fall within this category. We are satisfied that
breach of a bylaw is capable of falling within this category. Bylaws are made pursuant to
s28 of the Lee Valley Regional Park Act 1966. S28(3) states that:
“Bylaws made under this section may contain provisions for imposing on persons
offending against the bylaws reasonable fines, recoverable on summary conviction not
exceeding level 2 on the standard scale, and in the case of a continuing offence a further
fine not exceeding five pounds for each day during which the offence continues after
conviction therefor. “26
This is reflected in the Bylaws themselves at paragraph 57 which provides for a penalty:
“Any person offending against these bylaws shall be liable on conviction to a fine not
exceeding level 2 on the standard scale…”
37. From this we are satisfied that a breach of the bylaws constitutes a criminal offence and
that the alleged commission of a breach would bring the behaviour within the definition of
criminal offence data as envisaged by the DPA 2018. No prosecutions have been brought
relating to any of the behaviour captured within the disputed information as such we are
satisfied that there is no evidence of confirmed offending behaviour. However, the
Tribunal must be satisfied whether the behaviour relied upon meets the threshold of an
allegation of criminal behaviour. Where it does, in addition to an Article 6 basis for
processing, the disclosure must also meet a specific condition in Schedule 1 of the DPA.
The 2 conditions that appear relevant are:
29 This condition is met if the data subject has given consent to the processing.
24 Article 10 GDPR
25
s 11(2)(a) of DPA 2018
26 P149
9
32 This condition is met if the processing relates to personal data which is manifestly
made public by the data subject.
38. LVRPA rely upon specific types of behaviour stating:
“The Authority does not wish to endorse activities where bylaws are seen to being
breached such as lighting fires within the park and camping within the park which
includes rough sleepers”. 27 Before the Commissioner they relied specifically upon
allegations of breaches of 4 bylaws.28 These are dealt with in turn. However, in assessing
whether the threshold for treating these activities as allegations of criminal behaviour, the
Tribunal makes the following general observations applicable to all of them:
Activity
i. None of the activities complained of are per se illegal. The Tribunal observes that
disclosure of the film even with all the personal data redacted is still going to provide
evidence of the activities that LVRPA “do not wish to endorse” e.g. film of a fire or a
tent with no person associated with it. Regardless of whether the fact of the fire or the
evidence of the camping is evidence of a breach of a bylaw if it does not constitute the
personal data of an identifiable data subject there is no basis to withhold it (as LVRPA
have not relied upon any other exemptions under EIRs).
Attribution
ii. For an individual to be in breach of a bylaw there is an element of responsibility
required. For example a picture of a tent and a picture of an individual may provide an
inference that the individual is the person camping but is not proof that the tent belongs
to that person or was erected by them. Similarly, presence near a fire is not evidence
that the individual lit the fire.
Location
iii. To constitute an offence the activity must occur on identifiable land to which the bylaw
applies. In her submissions the Commissioner states that: “disclosure of images
relating to data subjects identifiable from the film showing a breach of bylaws on land
belonging to LVRPA 29would not be in the reasonable expectation of the data subjects
given the reputational damage to them”. LVRPA stated in their refusal that “much of
which [ie the natural landscapes shown] cannot be verified as the Authority’s land”,
they have not sought to distinguish to the Tribunal what land upon which bylaw
breaking activity takes place they can confirm is theirs. LVRPA have not satisfied the
Tribunal that any of the land upon which the activity took place was in fact the
Authority’s land. From this the Tribunal is not satisfied that there is prima facie
evidence of the bylaws being broken.
Permission
iv. All the bylaws have an element of permission both explicitly within their terms and
also by way of bylaw 57 which provides a defence if a person “can prove that he took
all reasonable precautions and exercised all due diligence to avoid the commission of
such an offence.”
LVRPA have explained that the Commissioning officer and his successor have both
left and they therefore do not know whether and if so to whom consent was given. It is
not apparent from the evidence before the Tribunal that any effort has been made to
27 P44
28 P106
29 Emphasis added
10
seek to contact them in order to obtain clarification. The Tribunal has had regard to
the role of Ms Grylls who was referred by LVRPA as their film-maker in residence
and the fact that this footage was filmed in order to make a film on their behalf. In our
judgment permission can be deemed where the activity is being filmed on behalf of
and for onward use by the authority who have the power to enforce the bylaws. The
Commissioner argues that “there is no evidence that any of the activities shown in the
film were in fact “taking place in order for it to be filmed” to indicate that such
consent had been given”. The Tribunal disagrees and has had regard to the data
subject’s interaction with the camera (whether for example they are aware they are
being filmed e.g. staring at the camera) and the extent to which the activity appears
staged. Additionally we have had regard to the fact that LVRPA has volunteer
programmes and park rangers and where it appears that an activity is being carried out
by someone in an “official” capacity (as evidenced by the use of safety equipment or
clothing with a company logo) we consider that good evidence that it is more probable
than not that the activity was carried out with permission. We have also had regard to
the presence of consent forms and the annotations which appear to suggest that some
activities have been undertaken for the purpose of filming.
Consent
v. The case was adjourned as LVRPA had not made sufficient enquiries as to what
consents had been obtained in circumstances when it was to be expected that they
would have been. They sought to defer responsibility to Ms Grylls as the film maker
however, as set out above, by their referring to her as their film-maker in residence we
are satisfied that she was acting on their behalf and with their authority and that they as
the commissioners and recipients of the film had a duty to satisfy themselves that the
information obtained upon their behalf complied with data protection obligations.
They had stated “Since the Authority is unable to reach Ms Grylls, we are unable to
confirm this with her”. Following the adjournment Ms Grylls has now been contacted
and has provided copies of consent forms and a log. Ms Grylls refers to the usual
process by which a film is “signed off” for distribution and we note that the consent
forms have annotations to enable the personnel to be identified on the film, this
correlates with the log and we would expect from the dates of the consent forms that
Ms Grylls and hence the authority can establish which individuals on the film have
signed consent forms. The wording of the consent forms is wide and we are satisfied
that where a consent form has been signed this is sufficient for disclosure under EIRs
notwithstanding any allegation of behaviour in breach of the bylaws. We are satisfied
that parent/guardians can consent on behalf of children for whom they are responsible.
39. The Tribunal deals with the 4 bylaws referred to by LVRPA in general terms in the open
document. The Tribunal has identified other activities that might constitute breaches of 2
other bylaws which are dealt with in the closed document (as their discussion in the open
document would be to reveal the content of the closed material). The fact that they have
not been argued by LVRPA is taken as evidence by the Tribunal that the LVRPA does not
consider them to be breaches. Both bylaws are subject to locational and consent
restrictions. For the reasons specified in the closed annex the Tribunal is not satisfied that
there is sufficient evidence that the activities represented disclose allegations of an
offence.
40. Bylaw 4 – Unauthorised removal of vegetation. This bylaw specifies:
11
(1) No person shall without reasonable excuse remove from or displace within the
ground:…
b)..turf or the whole or any part of any plant, shrub or tree.
The Tribunal observes that for this to constitute an offence the vegetation or part of
vegetation has to be removed from or displaced within the ground, thus many types of
“removal of vegetation” such as e.g. cutting a branch or picking a flower would not
appear to fall within the terms of this bylaw as they are wholly above ground.
41. Bylaw 10 – Unauthorised camping which states:
“No person shall without the consent of the Authority erect a tent or use a vehicle,
caravan or any other structure for the purpose of camping except in a designated area for
camping.”
The applicability of this bylaw to a tent appears to be limited to the person who erected the
tent, (rather than the person using the tent) as it is arguable that the use of any “other”
structures for the purpose of camping excludes a tent in light of the earlier reference to
tents.
42. Bylaw 11 – Fires. This bylaw provides:
“(1) No person shall light a fire or place, throw or drop a lighted match or any other thing
likely to cause a fire.
(2) Bylaw 11(1) shall not apply to:
a) The lighting of a fire at any event for which the Authority has given permission that
fires may be lit;
Again liability rests with the person that lit or caused the fire, consequently we are not
satisfied that those who are present when a fire has been lit are themselves in breach of the
bylaw.
43. Bylaw 42 Unauthorised public performances. This bylaw states:
“No person shall without the consent of the Authority hold or take part in any public show
or performance”.
What is meant by a public show or performance is not defined. In light of the reference in
bylaw 41 (in the context of excessive noise) to the requirement for a person playing a
musical instrument or singing, to desist upon request; we are satisfied that the playing of
an instrument or singing does not of itself constitute a public performance. The Tribunal is
satisfied that for a breach of bylaw 42 to be established the possibility that an individual
was playing for their own enjoyment, rehearsing or engaging in a communal activity with
friends would need to be ruled out. The Tribunal is also satisfied that where the
performance becomes public by dint of it being filmed as part of the withheld information
then permission should be deemed by the public authority.
44. For the reasons set out above and specified in the closed schedule we are not satisfied that
any of the behaviour allegedly in breach of the bylaws falls meets the threshold for an
allegation of criminal behaviour. However, even if we are wrong, where there is a
consent form, we rely upon the wide wording of the consent form and the fact that the
consent was obtained for the activity being undertaken at the time to satisfy ourselves that
the consent was informed and consistent with disclosure under EIRs even if it were a
breach of the bylaws. Where there does not appear to be a consent form, in assessing
whether an activity has been manifestly made public we have taken into consideration the
factors identified in paragraph 33 above.
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Is there any Article 6 lawful basis for processing the personal data?.
45. In relation to all the personal data contained within the film we must consider whether
disclosure is lawful. It is not argued that disclosure breaches statute or common law
(criminal or civil). Lawful disclosure requires that it meets an Article 6 condition. Those
that are relevant on the facts of this case are:
(a) consent and
(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, in particular where the data subject is a child.
46. We are satisfied that consent is defined in Article 4 of the GDPR as: “any freely given,
specific, informed and unambiguous indication of the data subject's wishes by which he or
she, by a statement or by a clear affirmative action, signifies agreement to the processing
of personal data relating to him or her”.
47. In this case a number of the data subjects in the film have signed consent forms. We have
ruled that specimens of the proformas should be placed in the open bundle. We have had
regard to the terms of the consent forms and whilst EIRs are not explicitly referred to, the
terms of the consent are extremely wide and in our judgment are consent for public
dissemination to the world at large and hence consistent with disclosure under the EIRs.
Ms Grylls has provided copies of consent forms and a log. Ms Grylls refers to the usual
process by which a film is “signed off” for distribution and we note that the consent forms
have annotations to enable the personnel to be identified on the film, this correlates with
the log and we would expect from the dates of the consent forms that Ms Grylls and hence
LVRPA can establish which individuals on the film have signed consent forms. Where a
consent form exists we are satisfied that disclosure is fair and lawful for the purposes of
Article 6.
48. We have gone on to consider Article 6(f) GDPR. We are satisfied that apart from the
additional requirement to take into consideration whether the data subject is a child, this is
an equivalent provision to Schedule 2 condition 6 DPA. As such we are satisfied that in
assessing fairness the Tribunal must balance the reasonable expectations of the data
subject and the potential consequences of disclosure on the data subject against the
legitimate public interest in disclosing the information. In doing so we apply Goldsmith
International Business School v The Information Commissioner and Home Office [2014]
UKUT 0563 (AAC).
49. The legitimate interests being pursued we are satisfied are transparency and accountability
in the use of the land; an understanding of how public money has been spent, whether
value for money has been obtained and the controls and processes in place in managing
such a project. The film cost over £5,000 and was intended to be used to celebrate the use
of the public space that LVRPA are charged with managing for the benefit of the public.
The film has not been published (contrary to the original intention) the process of
completing the film was abandoned (possibly due to staff turn over) and LVRPA have
stated that they “did not think the film was in keeping with the brief provided”30 From the
submissions of LVRPA it appears that public money has been spent creating a film
containing activities that LVRPA would not wish to promote. From this we are satisfied
30 P50 email 03/04/2018
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that there is a strong legitimate interest being pursued by the Appellant in seeking to view
the withheld information.
50. We have considered whether disclosure is necessary (in particular in light of the
documentary evidence that has been disclosed). We accept that disclosure of the film is
necessary to enable the public to form their own judgments relating to value for money,
consistency with the brief and to hold the public authority to account. The Tribunal has
considered the information disclosed already relating to content and whilst this is not
wrong, it does not convey a sense of the whole, especially bearing in mind the artistic
nature of the endeavour and the subjective qualitative evaluation applicable to such a
project.
51. We have applied a balancing test: namely does the legitimate interest outweigh the
interests and rights of the individual’s whose data is disclosed by the film. We take into
consideration whether (and to what extent) the activity is taking place in public, whether
the data subjects appear to be aware that they are being filmed and if so whether the
filming could have been construed by the data subject as being for personal by the person
filming. The nature of the activity being undertaken (whether it appears anodyne e.g.
walking a dog or more intimate/personal) we have also had regard to how intrusive the
representation is (i.e. close up, in passing, face visible or from behind). We have
considered whether the data subject is or may be a child and if so the likely impact of
public disclosure in this context upon a child. We accept the representations of LVRPA
that this was not a “commercial” undertaking although its intended use was to celebrate the
use of the park. In our judgment public dissemination of non intrusive anodyne activity in
a public place when an individual was aware that they were being filmed would not
outweigh the considerable legitimate interest in disclosure.
52. Where we are satisfied that the legitimate interests are overridden by the rights of the data
subject, in applying the test of reasonable necessity we have considered alternative
measures, i.e. “a measure would not be necessary if the legitimate aim could be achieved
by something less”; accordingly, the measure must be the “least restrictive” means of
achieving the legitimate aim in question. In this regard we are satisfied that any prejudice
to the rights and freedoms or legitimate interests of the data subjects can be mitigated so
that it is not unwarranted, by redaction. LVRPA have expressed a preference for redaction
by editing out the relevant extract. We are not satisfied that that is appropriate. Removal
of the section removes the context, the activity, a concept of the amount of film that has
been redacted and unless separately redacted the soundtrack, it also disrupts the contextual
flow of the piece. In our judgment the appropriate form of redaction to remove visual
personal data is anonymisation (this can be by way of pixilation, blurring or blanking).
Where the tribunal is satisfied that the soundtrack should be withheld, that element should
be edited to mute the soundtrack for the period concerned. The Tribunal has considered
self-identification notwithstanding redaction but is satisfied that all of the activities took
place in public or in a social setting and as such we are not satisfied that there would be
distress associated with self identification notwithstanding anonymisation.
53. As well as the requirement that processing is lawful, it must also be fair and transparent.31
We adopt our reasoning in relation to the assessment of the legitimate interests of the data
requestor balanced against the rights and freedoms of the data subjects in determining
whether disclosure is fair and transparent.
31 Article 5(1) GDPR
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The public interest
54. Additionally, for information to be disclosed notwithstanding regulation 13 EIRs,
disclosure must be in the public interest. In addition to the legitimate interests in favour
of disclosure as set out above, we have also considered the presumption in favour of
disclosure as set out in Regulation 12(2) EIRs. Against disclosure in addition to the rights
and freedoms of the data subjects as considered above, we have taken into consideration
LVRPA’s arguments that it is not in the public interest to promote activities that were they
to take place on LVRPA’s land without their permission would constitute a breach of the
bylaws. However, we consider the weight applicable to this considerably reduced for the
reasons set out in the analysis of the bylaws above. We are satisfied therefore that the
considerable public interests in disclosure outweigh the public interest in withholding the
information relating to the identifiable data subjects.
Conclusion
55. For the reasons set out above we allow this appeal in part:
i. all the withheld information is environmental information.
ii. However, we are satisfied that some excerpts should be redacted by way of
anonymisation/muting the soundtrack in reliance upon regulation 13.
56. The Tribunal’s detailed reasons with reference to the withheld information are set out in
the closed annex. These reasons are provided to be used where consent has NOT been
obtained. The Tribunal has not definitively married up consent forms with data subjects
represented but is satisfied that LVRPA ought to be able to perform this exercise by
reference to the log, the annotations on the consent forms, and by correlating the dates on
the consent forms to the dates of filming. The Tribunal would expect them to clarify this
with Ms Grylls if they are not sure. Where consent is applicable the Tribunal’s decision is
that the data should be disclosed. The Tribunal’s alternative reasons should only be
applied where consent has not been established.
Steps
57. LVRPA are to disclose the film (redacted by anonymisation and muting the soundtrack as
specified in the closed schedule) within 35 days
Signed Fiona Henderson
Judge of the First-tier Tribunal
Date: 2nd January 2020
Promulgation date: 6th January 2020
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