Appeal number: EA/2019/0413/P
FIRST-TIER TRIBUNAL
GENERAL REGULATORY CHAMBER
INFORMATION RIGHTS
BERNARD BRANDON Appellant
- and -
THE INFORMATION COMMISSIONER Respondent
TRIBUNAL: JUDGE CL GOODMAN
Determined on the papers, the Tribunal sitting in Chambers on 16 October 2020
© CROWN COPYRIGHT 2020
DECISION
1. The appeal is dismissed.
2. The withheld information is exempt by virtue of section 40(2) of the Freedom of
Information Act 2000 (“FOIA”) and therefore not covered by section 1(1) FOIA. The
Housing Ombudsman Service is not required to disclose the withheld information to
the Appellant.
REASONS
Mode of hearing
3. The parties and the Tribunal agreed that this matter was suitable for determination
on the papers in accordance with Rule 32 of The Tribunal Procedure (First-tier
Tribunal) (General Regulatory Chamber) Rules 2009, as amended. The Tribunal
considered an open bundle of evidence comprising 131 pages and a closed bundle
comprising the withheld information.
4. This determination was conducted by a Judge, sitting alone. The Tribunal was
satisfied that it was appropriate to compose the panel in this way, having regard to
paragraph 6(a) of the Senior President’s Pilot Practice Direction dated 14 September
2020 and the desirability of determining cases by the most expeditious means possible
during the Coronavirus pandemic.
5. The background to the request is summarised below. References to page numbers
are to pages of the open bundle.
Background to Appeal
6. The Appellant asked the Housing Ombudsman Service (“HOS”) in February 2019
how many complaints it had determined against the Curo Group (“the Landlord”)
from 1 April 2015 to 31 January 2019. The HOS responded on 6 March 2019 that it
had determined 26 complaints, of which 8 had resulted in an order or recommendation
for compensation
7. On 6 March 2019, the Appellant made a further request for information as
follows:
“Thank you for this. How can I now see the detailed reports of these 26 complaints?
“Do I apply to you? Or do I apply to Curo? If I did they would be sure to refuse me
access.
“Are these 26 complaints private or public?
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“If they are public knowledge or have become public knowledge after these
complaints were upheld did the Housing Ombudsman also order the details of the
outcomes to be published anywhere and if so where?”
8. The HOS refused to disclose the requested information on 11 March 2019 on the
basis that its reports were confidential to the parties to the complaint and that it must
comply with data protection legislation.
9. The Appellant requested a review of the decision and suggested that the HOS
change or redact the names of complainants from the reports. He said that he needed
the information to support a complaint about the Landlord to the Energy Ombudsman.
On 2 April 2019, the HOS again refused to disclose the reports on the basis that none
of the exemptions to the Data Protection Act 2018 applied (page 35).
10. The Appellant complained to the Commissioner. He explained that he was a
tenant of the Landlord and preparing to take them to the Housing Ombudsman
himself. He alleged that the Landlord regularly broke the law; for example, in relation
to deposit protection and its statutory duties under the Anti-Social Behaviour Crime
and Policing Act 2014. The Appellant said that he wanted to see the full, detailed case
reports, not only brief outlines, but that complainants’ personal data could be redacted
(page 44).
11. The HOS confirmed to the Commissioner on 23 September 2019 that they were
relying on the exemption in section 40(2) FOIA on the basis that all the information in
the investigation reports, determination letters and review reports relating to the 26
complaints (“the withheld information”) was the personal data of the complainants.
The withheld information also included personal data of other individuals who could
be identified from the information, such as neighbours of the complainants. Some of
the data related to criminal offences and health.
12. The HOS said that it did not have consent to publish this personal data, that the
data subjects would not reasonably expect their data to be disclosed, and that there
was an expectation of confidentiality when a formal complaint was made to the HOS.
13. The HOS considered that it would not be appropriate to seek the consent of
complainants to release the withheld information to the Appellant and that even if
personal data were redacted, it would be possible to identify individual data subjects
from the withheld information because the Landlord operated in a small geographical
area. Disclosure was likely to cause embarrassment and distress, and where
complaints related to anti-social behaviour, it could place the complainant in physical
danger.
14. The Commissioner issued Decision Notice FS50834555 on 1 November 2019.
The Commissioner upheld the HOS’ decision, finding that the HOS was entitled to
rely on section 40(2) FOIA. The Commissioner was satisfied that the withheld
information constituted “personal data”, and in some cases, “special category data” or
personal data about criminal offences, even if specific names and addresses were
redacted.
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15. The Commissioner found that disclosure would breach the data protection
principle in Article 5(1)(a) of the General Data Protection Regulation (Regulation
(EU) 2016/679) (“GDPR”) that personal data shall be processed lawfully, fairly and
in a transparent manner. None of the lawful bases in Article 6 applied. In particular,
the Commissioner considered that Article 6(1)(f) did not apply. While the Appellant
had a legitimate interest in requesting the withheld information and disclosure was
necessary to meet this legitimate interest, the legitimate interest did not override the
legitimate interests or fundamental rights and freedoms of the data subjects in
question. The Commissioner agreed with the HOS that those individuals had a
reasonable expectation that their information would not be disclosed and disclosure
was likely to cause distress. Furthermore, none of the conditions for processing data
about health or criminal offences were satisfied.
16. The Commissioner considered that the wider public interest was met through the
information which had already been released by the HOS and that the Appellant could
request information about the types of complaints made against the Landlord, without
necessitating the release of third-party personal data (paragraph 36).
Appeal to the Tribunal
17. The Appellant appealed to the Tribunal. His Notice of Appeal dated 4 November
2019 submitted that the Commissioner’s decision was manifestly unfair. The withheld
information was highly relevant to a complaint he was making about the Landlord and
his local authority. The Appellant highlighted that unlike the HOS, the Local
Government and Social Care Ombudsman (LGSCO) published anonymised reports of
its investigations into complaints against local authorities, detailing the nature of the
complaint and outcome. It was unfair that the Appellant could obtain information
about complaints against his local authority, but not his landlord. The Appellant relied
on caselaw relating to open justice and disclosure of documents in Court proceedings.
18. The Appellant pointed out that the HOS had committed in its Business Plan 2020-
2021 to publishing its decisions, including “the name of the landlord, the nature of the
complaint and our findings, but excluding any details that would identify the
complainant”. The Appellant asked the First-tier Tribunal to order that the HSO must
publish its decisions in the same way as the LGSCO.
19. The Respondent’s Response dated 9 December 2019 maintained the analysis in
the Decision Notice. The Respondent submitted that the practice of the LGSCO had
no bearing on the appeal and that the HOS’ future plans for disclosure were not
relevant.
20. In further Submissions dated 13 January 2020, the Appellant drew the Tribunal’s
attention to Mr Justice Warby’s comments on open justice in Clarkson v Person or
Persons Unknown [2018] EWHC 417 and a case in the Central London County Court
concerning an anonymity order, CT v the Home Office. He asked the Tribunal to
direct that the withheld information be redacted by substituting the names and
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addresses of any individuals and that all case reports relating to complaints against the
Landlord since 31 January 2019 also be disclosed.
21. In its further submissions, the HOS said that all Ombudsmen were required to
comply with principles of openness and transparency laid down by the Ombudsman
Association, but that they could take different approaches to publishing decisions. The
HOS confirmed that it intended to publish all decisions where there was no risk of an
individual being identified by 31 March 2021, but that the change would not be
retrospective, meaning that the withheld information would not be published.
The Law
22. Section 1(1)(b) FOIA provides that any person making a request for information
to a public authority is entitled to have that information communicated to him.
However, section 1(1)(b) does not apply where information is exempt. Section 40(2)
FOIA provides that information is exempt if it constitutes personal data (other than
personal data of the applicant) and one of three conditions is satisfied.
23. Section 40(2) is an absolute exemption. There is no presumption in favour of
release of personal data in the public interest and no reason why the right to freedom
of information should be favoured over the rights of data subjects in their personal
data.
24. The first condition, in section 40(3A), is that disclosure other than under FOIA
would contravene any of the data protection principles. One of those principles, set
out in Article 5(1)(a) GDPR, is that:
“Personal data shall be: (a) processed lawfully, fairly and in a transparent
manner in relation to the data subject (‘lawfulness, fairness and
transparency’)”
25. Any disclosure of personal data under FOIA must therefore be lawful, fair and
transparent. One of the lawful bases for processing under Article 6(1) GDPR must
apply. In particular, Article 6(1)(f) provides that it is lawful to process personal data
only if and to the extent that:
“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”.
26. In South Lanarkshire Council v. The Scottish Information Commissioner [2013]
UKSC 55 and Goldsmith International Business School v The Information
Commissioner and Home Office [2014] UKUT 563, it was established that in
applying the test in Article 6(1)(f) in the context of FOIA, three questions must be
addressed:
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(i) “Is the data controller or the third party or parties to whom the data are
disclosed pursuing a legitimate interest or interests?
(ii) Is the processing involved necessary for the purposes of those interests?
(iii) Is the processing unwarranted in this case by reason of prejudice to the rights
and freedoms or legitimate interests of the data subject?”.
27. According to UTJ Wikeley in Goldsmith, necessity carries its ordinary English
meaning of “reasonable necessity” reflecting the European jurisprudence on
proportionality, being more than desirable but less than indispensable or absolute
necessity. The test of reasonable necessity involves consideration of alternative
measures: a measure would not be necessary if the legitimate aim could be achieved
by something less.
28. In addition, Article 9 and 10 GPDR prohibit the processing of personal data about
health, criminal convictions and offences unless other more restrictive conditions are
satisfied. In the context of this appeal, personal data about health and criminal
convictions and offences can only be disclosed under FOIA with the explicit consent
of the data subject or where the processing relates to personal data which has clearly
been made public by the individual concerned.
29. The powers of the Tribunal in determining this appeal are set out in s.58 of FOIA:
“If on an appeal under section 57 the Tribunal considers -
(a) that the notice against which the appeal is brought is not in accordance
with the law, or
(b) to the extent that the notice involved an exercise of discretion by the
Commissioner, that he ought to have exercised his discretion differently,
the Tribunal shall allow the appeal or substitute such other notice as could have
been served by the Commissioner, and in any other case the Tribunal shall
dismiss the appeal.
On such an appeal, the Tribunal may review any finding of fact on which the
notice in question was based.”
30. I note that the burden of proof in satisfying the Tribunal that the Commissioner’s
decision was wrong in law or involved an inappropriate exercise of discretion rests
with the Appellant.
Conclusion
31. This appeal relates to the refusal of the HOS to release to the Appellant
investigation reports, determination letters and review reports arising from 26
complaints by tenants of the Landlord to the HOS over a specified period.
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32. According to the Housing Ombudsman Scheme approved by the Secretary of
State under the Housing Act 1996, the role of the HOS is to resolve disputes involving
members of the Scheme, including making awards of compensation or other remedies
when appropriate.
33. The Landlord is a housing association and a member of the Scheme. The Landlord
is based in Bath and operates across the west of England. All but four of the
complaints in the withheld information relate to properties in Bath and Bristol. The
Appellant is a tenant of the Landlord and at the time of his request, was in the process
of making a complaint himself to the HOS and to the Energy Ombudsman about the
Landlord.
34. When the HOS receives a complaint within its jurisdiction, the complaint is
investigated by an adjudicator. The adjudicator gathers information and then writes a
determination letter to the complainant, or a formal report, setting out the background
to the complaint, a summary of events, the information considered during the
investigation, the adjudicator’s decision and reasons. The adjudicator may make
recommendations, including for the payment of compensation by the Landlord to the
complainant.
35. The complainant may then request a review of the determination. Reviews are
carried out by a Disputes Resolution Manager at the HOS who writes a final
determination letter, summarising the complaint and advising whether the
adjudicator’s decision is confirmed or amended.
36. The determination letters and investigation reports are lengthy and thorough. They
include detailed accounts of the circumstances of the complaint with specific dates of
incidents, content of correspondence and steps taken by both parties. Some contain
details of maintenance issues and remedial works, the condition of flats and damage
caused to property. Some contain detailed financial information about sinking funds
and service charges, rent arrears, compensation paid to tenants, lease terms, moving in
dates and transfer applications. Some detail the physical and mental health conditions
of complainants and their neighbours and receipt of benefits. In complaints involving
allegations of anti-social behaviour, the letters and reports contain detailed accounts
of incidents with dates and descriptions of language and behaviour and in some cases,
the involvement of police and details of evictions, criminal prosecution and
conviction.
37. The final determination letters following review are less detailed, but again
summarise the background and specific details of the complaint and information
considered in the investigation.
38. The detailed nature of the withheld information means that even if basic
identifying information, such as the name and address of the complainant, was
redacted, as proposed by the Appellant, it would still be possible to identify the
complainants, and in some cases, other individuals involved in incidents. Details are
given about properties, works and incidents which would be recognisable by tenants
of those properties. This is the case in particular as the Landlord operates in a
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relatively small geographic area and owns a limited number of properties.
Complainants may have discussed some aspects of their complaint with other tenants
which would enable them to identify the complainant, even if names and addresses
were removed.
39. I conclude that all the withheld information is third party personal data and that
individuals would be identifiable from the information even after redaction. If the
information was redacted to the extent that all potentially identifying information was
removed, there would be little text remaining and the information would not be of
value to the Appellant.
40. I further find that the condition in section 40(3A) FOIA is satisfied because
disclosure of the withheld information would contravene the data protection principle
of lawfulness, fairness and transparency in Article 5(1)(a) GDPR. This is because
none of the lawful bases for processing under Article 6(1) GDPR apply. In particular,
I find that Article 6(1)(f) does not apply.
41. Applying the three questions from South Lanarkshire Council and Goldsmith, I
conclude that the Appellant is pursuing a legitimate interest, both his personal interest
in gathering evidence to support a complaint against his landlord, and also a wider
public interest in relation to the Landlord’s compliance with its statutory duties as a
social landlord.
42. I find that the release of the withheld information is reasonably necessary for the
purposes of the Appellant’s legitimate interests. The HOS was unable to provide any
information about the nature of the complaints made against the Landlord, the type of
issues raised by complainants nor the findings of the adjudicators (other than in
relation to compensation). In order for the Appellant to pursue his legitimate interests,
it is reasonably necessary for him to know how many complaints relate to those issues
he is concerned about and the outcome. On the evidence before me, it appears that
that information is held only in the form of the withheld letters and reports. In order to
provide anonymised reports in the future, the HOS is having to undertake a process
requiring budget approval, changes to its casework process and technology, and staff
training on anonymisation.
43. However, the release of the withheld information is not warranted in this case by
reason of prejudice to the rights and freedoms or legitimate interests of the
complainants and, in some cases, other individuals identifiable from the reports. I
accept that when these individuals complained to the HOS about the Landlord, they
did not expect their complaints to be published. They were told by the HOS that
information would be shared with their landlord and other relevant bodies in order to
deal with the complaint and for purposes within the HOS’ terms of reference. The
Housing Ombudsman Scheme provides that in publishing any determination, the HOS
must “maintain as far as practical, the anonymity of the complainant and any third
parties and must exclude any matter which relates to: a. the private affairs of an
individual where publication would seriously prejudice the interests of that
individual” (page 120).
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44. The withheld information contains considerable detail about the complainants’
homes, their families and personal lives, their financial affairs and relationships with
their neighbours (see paragraph 36). The letters and reports date back to 2015, but
some of the events described date back decades. I accept that the release of this
amount of personal information is likely to result in embarrassment and distress for
the complainants, and in some cases, their neighbours and other individuals. In some
cases, publication could result in reprisals against the complainants, potentially
putting them and their property at risk. The release of the withheld information to the
Appellant does not warrant, in this case, the prejudice caused to the rights and
freedoms and legitimate interests of the complainants and other individuals
identifiable in the reports.
45. None of the other bases in Article 6(1) GDPR apply.
46. In addition, some of the withheld information concerns the mental and physical
health of the complainants, their family members and neighbours; some concerns
police investigations, criminal charges and convictions. I find that release of this
information would contravene Article 5(1)(a) GDPR because it is prohibited under
Article 9 and 10 GPDR. None of the relevant conditions are satisfied: the data subject
has not given explicit consent and the data has not been made public by the individual
concerned.
47. I have noted that other Ombudsmen, such as the LGSCO, publish more detailed,
anonymised reports of their investigations, and indeed that the HOS intends to do so
in the future. However, the request for information which is the subject of this appeal
concerns the HOS and complaints determined by the HOS from 1 April 2015 to 31
January 2019. It does not concern other Ombudsmen nor anonymised reports which
the HOS may create when investigating future complaints.
48. The cases referred to by the Appellant concern general principles of open justice
and the disclosure of documents in Court which are not relevant to this appeal because
this appeal concerns the interpretation of FOIA.
49. For these reasons, the appeal is dismissed. I decline to make an order for the
redaction of the withheld information or for release of case reports of complaints
against the Landlord since 31 January 2019 as requested by the Appellant.
(Signed)
JUDGE CL GOODMAN DATE: 16 October 2020
Promulgated DATE: 6 November 2020
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