First-tier Tribunal
(General Regulatory Chamber)
Information Rights
Appeal Reference: EA/2019/0179/A
Heard at Birmingham Combined Court
On 30 October 2019 and 30 January 2020
Before
JUDGE HOLMES
ANNE CHAFER
JOHN RANDALL
Between
JULIAN SAUNDERS
Appellant
and
THE INFORMATION COMMISSIONER
Respondent
and
SANDWELL METROPOLITAN BOROUGH COUNCIL
Second Respondent
Appearances:
Appellant : In Person
First Respondent: Written Submissions
Second Respondent: Mr Robin Hopkins, Counsel
DECISION AND REASONS
1. The Tribunal allows the appeal, the Decision Notice, no. FS50738692, dated 30
April 2019 is revoked, and the following Decision is substituted in its place:
1.The public authority was entitled to withhold the requested information
pursuant to s.40(2) of the Freedom of Information Act 2000, as the same
constituted personal data, the processing of which would not be in accordance
with the data protection principles, and which it was not in the public interest
to disclose.
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2. The public authority, further , was entitled to withhold the requested
information pursuant to s.31(1)(g) and s.31(2)(b) of the Freedom of
Information Act 2000, as to disclose the same would be likely to prejudice the
public authority in exercising its function of carrying out an investigation for
the purpose of ascertaining whether any person had been responsible for
conduct which was improper, and which it was not in the public interest to
disclose, and no further action is required from the public authority.
REASONS
2. In this appeal the Appellant , Julian Saunders, appeals against a Decision
Notice issued by the Information Commissioner on 30 April 2019, in which she
determined that (save for a delay in responding to the complaint) the public
authority, Sandwell MBC (“Sandwell” or “the Council”) , had correctly
applied s.30(1)(b) of the FOIA, and had correctly withheld the requested
information.
3. The Appellant appealed the Decision Notice by a Notice of Appeal dated 26
May 2019. In the Notice the Appellant indicated that he required a Decision
after a hearing. He filed further grounds of appeal, entitled “Possible ICO
Bias” on 2 July 2019
4. The Commissioner filed her response to the appeal on 5 July 2019. She was
content for a hearing on paper and was content to rely upon written
representations.
5. The Tribunal issued case management directions on 20 June 2019. It directed
that Sandwell be joined as Second Respondent and made directions for that
party to file a response. Sandwell did so on 17 July 2019. Further Directions
were given by the Registrar on 20 September 2019 (amended on 27 September
2019). She directed that closed material be held pursuant to rule 14(6), and
recorded what had been received by the Tribunal, and considered what the
Panel was to be permitted to see in the redacted material. The hearing date of
30 October 2019 was notified to the parties in these Directions.
6. The Appellant attended the appeal in person. The Commissioner did not
appear at the hearing but submitted written submissions in the appeal. The
Second Respondent was represented by Mr Hopkins of Counsel. There were
two Hearing bundles, one open (in two parts), and one closed. References to
page numbers are to the pages in the open bundle, which follow sequentially
across the two parts.
7. The Tribunal started to hear the appeal on 30 October 2019. The Appellant
made his submissions first but did not give evidence. The Second Respondent
made submissions in the afternoon of the hearing, and called David Stevens,
the Interim Chief Executive of Sandwell. He gave evidence in open session,
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when he was cross – examined by the Appellant and gave further evidence
then in closed session.
8. That took the Tribunal to the end of the hearing day, so it adjourned, part
heard, resuming in open session on 30 January 2020. In the interim, a gist of
the closed session was prepared, approved by the Tribunal, and provided to
the Appellant. The Tribunal resumed the hearing on 30 January 2020, when
final submissions were heard.
9. The Judge apologises for the delay in promulgation, occasioned initially by
pressure of judicial business, and more latterly, by the restrictions occasioned
by the Covid – 19 emergency which has limited access to judicial premises and
resources.
The Decision Notice.
10. The Decision Notice that is the subject of this appeal is dated 30 April 2019 (No.
FS50738692), and relates to the Appellant’s FOIA request of 30 January 2018,
given the reference no. FS – Case – 76135478 by Sandwell [pages 39 to 40 of the
bundle].
The Background.
11. The background to the request made by the Appellant which gives rise to this
appeal is that the Appellant is the author of a blog “the sandwellskidder”, in
which he comments upon the actions and conduct of Sandwell as a local
authority, and local political issues.
12. On or about 24 January 2018 the Council suspended seven secretaries in the
Cabinet secretariat of the Council, following concerns that had been raised that
there had been a “leak” , a breach of confidentiality, in relation to a meeting of
the Ethics and Standards Sub Committee that was to take place that day in
relation to a Councillor, and indeed, did take place that day. An application
was made that the meeting be postponed. The issue was that there had been a
pre-meeting discussion the day before the Sub – Committee meeting, which
had come to the attention of the Councillor’s representative, and was the
subject of complaint that this was a secret “briefing” , which could have had
the purpose or effect of compromising the Sub – Committee meeting the
following day.
13. The suspensions were carried out that day, or over the next two days.
Subsequently it came to light that none of the secretaries was responsible for
the leak, and the decision was made to lift their suspensions. That occurred on,
it seems, 31 January 2018.
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14. The Appellant made his FOIA request that day, in these terms [page 39 of the
bundle]:
“Today Darren Carter has written to members saying ’the suspension of employees in
the Cabinet Secretariat was taken by Council Managers on HR advice’ and that “the
suspensions have been lifted”.
The said “Council Managers” can have no presumption of anonymity in respect of
such a serious act. Documents identifying lower status employees should be disclosed
but with their identities suitably redacted.
1. What offence are the seven employees alleged to have committed?
2. How did “Council Managers” become aware of the alleged offence? What evidence
did they obtain before taking the extreme measure of suspension?
3. Please disclose all documentation with regard to the investigation from outset to
conclusion including all emails, file notes and any other documentation arising in
connection with this whole affair including the request for HR advice and the
advice given.
4. Identify the Council Managers involved in this affair and their individual
involvement in the same.
5. When was suspension lifted and why? Were all seven employees allowed to return
to their positions without sanction? If not why not? “
15. The Appellant’s request was acknowledged that day and given the reference
FS-Case-67027833 by the Council. The Appellant added to his request a further
request later the same day in which he made reference to the suspensions
being carried out by Stuart Taylor, and he sought the contract of employment
or other delegated authority permitting him to act in the manner that he did.
16. The Council’s response to the request was not provided until 23 March 2018
[pages 41 to 42 of the bundle]. The requested information was withheld as
exempt by virtue of s.30(1)(a) and (b), investigations, and s.40(2), personal data.
The council went on to state that under the s.30(1) exemption it would not be
in the public interest to release information which is the subject of internal
investigations. In relation to s.40(2, release of this personal information not
constitute a fair processing of the data and therefore would be a breach of the
first principle within the Data Protection Act 1998. The response went on to
state that the right to privacy outweighed any public interest in release of the
information.
17. The Appellant was advised of his right to seek an internal review, and
thereafter of his right to complain to the Commissioner.
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18. The Appellant did seek an internal review, on 20 May 2018 [page 43 of the
bundle]. In his application he said this:
“Council employees are regularly named in SMBC documents and reports. They have
no reasonable expectation of anonymity when doing the normal job they are paid for by
us taxpayers save where security or other issues require. It is senior managers involved
in this fiasco and it needs to be said what the (false) allegations were and who made the
decision to suspend the seven in the absence of Jan Britton and, seemingly, other
persons at Director level.
Stuart Taylor is already identified in this saga. He is an employee way below Director
level and it seems inconceivable that he has been given the delegated power to suspend
seven secretaries. Did he have the requisite delegated powers to take such drastic
action?
Today I have received confirmation that the seven secretaries had [sc. “been”]
innocent of the allegations against them that led to their suspension. Further they have
received compensation but subject to them signing confidentiality clauses. Tis is
wholly unacceptable and it is clearly in the public interest that the truth about what
happened here is disclosed not least because some sort of disciplinary action is required
against the “Council Managers” who made such a catastrophic decision based on false
evidence.
The taxpayer as had to pay for this shambles and deserves to know the truth . I await
the internal review.”
19. The Council conducted the review, on 10 July 2018 [pages 44 to 46 of the
bundle]. The Council repeated the Appellant’s original request and confirmed
that the information requested was held. It asserted, however, that it was
exempt pursuant to s.30(1) of the FOIA as it was incorporated into an
investigation undertaken by the Council and was therefore covered by that
section.
20. The review then went on to apply the public interest test. The reviewer stated
the Council’s belief that , whilst there was a requirement for openness and
transparency , there remained times when information collected during
internal investigations were not placed in the public domain, as by doing so
would prejudice future investigations as people would be less willing to
provide information if they knew it would be disclosed into a public forum.
21. Further, the Council considered that all but Q4 raised by the Appellant
constituted personal information and this would not be disclosed on the basis
of s.40(2) of the FOIA.
22. By way of summary of the provisions that the Council were relying upon, they
were:
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Freedom of Information Act 2000
30 Investigations and proceedings conducted by public authorities
(1) Information held by a public authority is exempt information if it has at any time been
held by the authority for the purposes of–
(a) any investigation which the public authority has a duty to conduct with a view to
it being ascertained–
(i) whether a person should be charged with an offence, or
(ii) whether a person charged with an offence is guilty of it,
(b) any investigation which is conducted by the authority and in the circumstances
may lead to a decision by the authority to institute criminal proceedings which the
authority has power to conduct, or
(c) any criminal proceedings which the authority has power to conduct.
(2) Information held by a public authority is exempt information if–
(a) it was obtained or recorded by the authority for the purposes of its functions
relating to–
(i) investigations falling within subsection (1)(a) or (b),
(ii) criminal proceedings which the authority has power to conduct,
And, in relation to personal data:
40 Personal information
(1) Any information to which a request for information relates is exempt information if it
constitutes personal data of which the applicant is the data subject.
(2) Any information to which a request for information relates is also exempt
information if—
(a) it constitutes personal data which does not fall within subsection (1), and
(b) the first, second or third condition below is satisfied.
(3A) The first condition is that the disclosure of the information to a member of the
public otherwise than under this Act—
(a) would contravene any of the data protection principles, or
The ICO’s investigation.
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23. The Appellant complained to the ICO on 13 April 2018 [page 47 of the bundle],
and his complaint was assigned reference no. FS50738692 in a response from
the ICO dated 16 May 2018 [page 47 of the bundle]. The Appellant wrote
further to the ICO on 21 May 2018 [page 49 of the bundle] to say that he had
originally applied for an internal review, and had applied for another one,
which he was monitoring.
24. The ICO informed Sandwell of the complaint by writing to Sandwell on 16 July
2018 [pages 51 to 52 of the bundle]. An Investigating Officer (“IO”) was then
allocated the investigation of the complaint. On 24 July 2019 he asked
Sandwell to provide him with a copy of withheld information, together with
any further arguments that Sandwell wished to advance in support of the
application of sections 30(1) and 40(2) of the FOIA.
25. After some delay, Sandwell replied to the ICO on 22 August 2018 [pages 58 to
59 of the bundle, in redacted form] . The unredacted version appears in the
closed material. There is very little in the way of redaction and the Council’s
arguments can be discerned and understood perfectly well without the need
for sight of the redacted details.
26. On 3 September 2018 the IO wrote to Stuart Taylor [page 60 of the bundle]
asking him when the file note, which was amongst the withheld material, was
prepared, pointing out that if it was after 31 January 2018 it fell outside the
scope of the request. Stuart Taylor replied on 5 September 2018 [page 61 of the
bundle] saying that the file note was prepared on 30 January. He also made
reference to the suspension letters, a sample of which he enclosed in
unredacted form. He went on to say how the only other written information
held was the email from the person who alerted the Council to the situation
which led to the suspensions. He also informed the ICO of his impending
departure from the Council, and provided a new contact, Mr Philip Tart.
27. On 7 September 2018 the IO wrote to Mr Tart [page 62 of the bundle] asking
for more information and making reference to hyperlinks to press articles in
which the suspensions were already in the public domain. He asked, in the
light of this, if the Council would be prepared to disclose a redacted version of
the information.
28. Maria Price it was, in fact, who replied to the ICO on 19 September 2018 [pages
63 to 65 of the bundle]. In this email, redacted in the open bundle, she
provided further information, in relation to the five specific questions raised in
the request. She referred to the only records being the “letters of dismissal”
(inaccurate, of course, as the employees were suspended not dismissed) , and
went on to provide the information sought by the ICO. She went on to explain
the Council’s application of s.30 of FOIA, both s.30(1a) (i) and (ii) and s.30(1b).
She referred to the Council’s authority to undertake investigations against
officers for a variety of reasons. She also went on to refer to s.30(2)(a)(i) as
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exempting this information from disclosure. She referred to the
Commissioner’s published guidance on s.30.
29. She said the Council was acting “under the Employment Rights Act 1996”, as
well as the common law duty of confidentiality. She also referred to s.40 of the
FOIA, in particular s.40(3(a)(i)(ii). She went on to say that the Council was of
the opinion that disclosing anything in relation to the Cabinet Secretaries
would personally identify them as individuals, and there was a real concern
that disclosing the information would, in all likelihood cause significant
distress to the individuals concerned.
30. The IO wrote to the Appellant on 20 September 2018 [page 66 of the bundle],
informing him of the response that he had received from the Council, and
asking if there was any further information that was in the public domain,
apart from the article in the Express and Star which had been referred to.
31. The Appellant replied on 13 October 2018 [page 67 of the bundle]. In this email
he said that he had not been able to locate any other public information but
had written about all this in his own blog. He went on to summarise the events
of the suspension and its lifting and who the Council had stated had taken the
decision. He went on the refer to the fact that six of the seven had received
compensation, but one, whom he named, had not.
32. The ICO responded on 3 December 218 indicating that a Decision Notice
would soon be issued, but on 15 January 2019 wrote further to the Council
[page 69 of the bundle] asking for more details of the Council’s case on the s.30
exemption. Maria Price of the Council replied on 8 February 2019 [pages 71 to
72 of the bundle]. She clarified the position and referred to the Council having
a duty under the Employment Rights Act 1996 to ensure that if and when
allegations are raised about employees they are properly investigated. She
confirmed the sequence of events, and how the investigations were conducted
as part of the employer’s disciplinary process. She went on to say how the
Council had a duty to ensure that its employees act properly and to investigate
employees suspected of disciplinary or criminal offences.
33. In relation to the three criteria for s.30(1)(b) , reference was made to the
Council’s powers under s.1 of the Localism Act 2011, and s.222 of the Local
Government Act 1972 , under which it had power to institute and conduct any
criminal proceedings , which in this instance would potentially have been for
interference with the Standards regime for an elected member.
The IC’s Decision Notice.
34. The Decision Notice was sent to the Appellant and the Council on 30 April
2019 [pages 1 to 7 of the bundle].
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35. The Commissioner found that s.30(1) was engaged. The Council’s position was
rehearsed, and, in relation to its power to prosecute, accepted by the
Commissioner. She accepted that the requested information related to an
investigation which fell within s.30(1)(b) of the FOIA, and was accordingly
exempt, subject to the public interest test.
36. In applying that test (at paras. 26 to 34 of the Decision Notice), the
Commissioner, whilst recognising the public interest in promoting openness
and transparency, concluded that, whilst the fact of the suspensions and the
subsequent reinstatements was in the public domain, the reasons why, and the
persons responsible, were not.
37. She recognised the need for protection of a safe space to allow internal
investigations in relation to matters in which criminal proceedings may be
contemplated. She also recognised the need to prevent the inhibition of
participants in the investigatory process because of fear that their comments
may be subsequently made pubic via the FOIA. She therefore concluded that
the public interest in maintaining the exemption outweighed the public
interest in disclosure.
38. As she held that the s.30 exemption was made out, she did not go on to
consider the s.40(2) grounds also advanced by the Council.
39. She did, however, acknowledge that the Council had been in breach of the
requirement to respond to the request within 20 working days, and had
thereby breached s.10 of the FOIA.
The Appellant’s grounds of appeal, and submissions.
40. The Appellant’s Grounds of Appeal are in the bundle [pages 15 to 19].
41. In essence, the Appellant , after setting out his concerns that there had been
wrongdoing in relation to the initial pre – meeting, which the Council wished
to cover – up, and there was never any potential for criminal proceedings, he
then goes through the public interest test as applied by the Commissioner, and
advances his arguments as to why the decision was wrong, and why the public
interest favours , consistently with the presumption , disclosure. These
Grounds were elaborated upon in the appeal and need not be rehearsed again
here.
The IC’s response to the appeal.
42. The IC did not appear, but her written submissions, dated 5 July 2019 [pages
24 to 29] uphold the Council’s position. The Commissioner found that s.30 was
engaged, and that the public interest favoured the maintaining of the
exemption. She did not advance any argument in support of the s.40(2)
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exemption, as she had indeed not determined the case on that basis. She held
that the allegedly defective nature of the investigation and any alleged “cover
– up” were irrelevant. She cited Toms v Informaion Commissioner
(EA/2005/0027) in support of her conclusion.
The Second Respondent’s response and submissions.
43. Mr Hopkins prepared the written response for the Second Respondent [pages
30 to 36 of the bundle]. It initially refers to the Appellant’s history of FOIA
requests and appeals, and his campaign of public commentary, which is
alleged to, on occasion, be humiliating and demeaning. This was relied upon
in support of a contention that disclosure may, firstly, make individuals less
likely to volunteer input to investigations, and secondly, be likely to cause
damage and distress to affected individuals.
44. Reliance was placed on s.30, but in the alternative, s.31(1) of the FOIA was
advanced.
45. The relevant provisions of s.31 relied upon were:
31. Law enforcement
(1) Information which is not exempt information by virtue of section 30 is exempt
information if its disclosure under this Act would, or would be likely to, prejudice–
(a) to (f) N/a
(g) the exercise by any public authority of its functions for any of the purposes
specified in subsection (2),
(h) N/a
(2) The purposes referred to in subsection (1)(g) to (i) are–
(a) the purpose of ascertaining whether any person has failed to comply with the law,
46. Under either provision, disclosure was likely to prejudice the Council’s ability
to conduct investigations. The balance of the public interest lay with non –
disclosure, and the Appellant had given a misleading characterisation of the
events leading to the suspensions.
47. He did, however, go on to advance a case under s.40(2) of the FOIA, arguing in
the alternative, that that the suspended secretaries had a reasonable
expectation of privacy in respect of information relating to their suspension ,
and , absent their consent, disclosure could not be justified under Schedule 2 to
the DPA 1998 as a proportionate means of serving a pressing social need.
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The hearing(s)
48. Prior to the hearing, on 22 October 2019 , the Appellant submitted further
documents he wished to be considered, comprising of (open) communications
between the Council and Unite the Union, which represented six of the
suspended employees, and the apology that the Council issued to six of the
secretaries, in August 2019, following an investigation that was subsequently
held. He numbered these documents 80A to 98A.
49. For the Second Respondent Mr Hopkins provided a Summary of the Council’s
position , dated 24 October 2019, in which he advanced, in the alternative, a
further submission based upon the “steps discretion” which arises under
s.50(4) of the FOIA, in relation to the Commissioner, and hence also is
available to the Tribunal when hearing an appeal under s.58.
50. At the first hearing the Appellant, at the outset, made an application that the
proceedings be recorded. The basis for this was that he wanted to ensure that
there were no misrepresentations or distortions of the proceedings, as he did
not, in short, trust the Council. The Second Respondent was neutral upon the
application. The Tribunal considered it, but did not consider that the Appellant
had made out any good grounds for the Tribunal to depart from its normal
practice of not allowing recording of its proceedings.
51. Before the Tribunal was an Open bundle, in two parts, pages 1 to 74, and pages
75 to 121. The latter contains, at pages 117 to 121, a Witness Statement from
David Stevens, the Interim Chief Executive of the Second Respondent. He
conducted an investigation in August 2019 into the suspensions and
commissioned an independent report from an external consultant. As a result
of that , further documents came to light, and , following a meeting on 22
October 2019, those further documents which had not previously been
disclosed in response to the Appellant’s FOIA request were then, in redacted
form, provided to him, and are in the second part of the open bundle.
The Appellant’s oral submissions.
52. The Appellant made his submissions, in essence amplifying his Grounds of
Appeal. He considered that the Council was, at the relevant time at least,
dysfunctional, and wrongdoing had occurred, which it was trying to cover up
by relying upon the FOIA to deny his request for all of the information
relevant to the improper suspension of the affected employees. He referred to
the Council’s characterisation of him as a troublemaker, with five previous
appeals, and criticism of his blogging activities. But three of his appeals had
been settled, and more information was released.
53. He referred to having received the latest material 631 days after his request,
when it had been “magicked up” by the Council. He referred to what he
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considered were the Council’s attempts to discredit him with the ICO, and
what he saw as the ICO’s failures to deal with this, and indeed four other cases,
properly.
54. He agreed that the secretaries were the victims in all of this, and he had been
present on the day when these events had started. He was supporting the
secretaries, this was the reason for the speed of his request. There were local
newspaper reports, and this was a major piece of news. It was crazy to suggest
that there was any expectation of privacy, the entire Council knew of the
suspensions which were the subject of gossip, and a major story.
55. The secretaries have been reinstated, but the Express and Star had run a story
six days previously, and an apology had been given to them.
56. It was not the secretaries whom he had been trying to identify, but managers.
He had been very fair to junior employees.
57. He took the Tribunal through the Decision Notice. He considered that the legal
argument relied upon by the Commissioner and the Second Respondent in
relation to s.30(1) of the FOIA was nonsense. There was no question of
criminality involved, as the Second Respondent now appeared to accept. The
Council could not rely upon s.30 in respect of all investigations in general.
58. In relation to the withheld material that he was seeking, it was the allegations
and suspension letters that he wished to see. Unite the Union was never
informed of any interviews or action taken. The file note in question was made
after the trade union representative had spoken to the investigating officer.
59. He went on to refer to the Employment Rights Act 1998, as is referred to in
paragraph 20 of the Decision Notice, which was, as the Judge agreed, clearly
wrong, as the date of that Act is 1996.
60. He agreed that the investigation could have been used for disciplinary
purposes but did not understand how it would be likely that secretaries could
be prosecuted for interfering with the standards regime for the conduct of an
elected member. He doubted that the Council could take criminal proceedings
or had power to do so.
61. Turning to the public interest test, and in particular paragraph 31 of the
Decision Notice, the “safe space” argument, this it was contended was
ridiculous, as within three or four days it been decided that the suspended
employees had no case to answer. There could be no longer any public interest
when by 19 April 2018 it was clear that there would be no criminal
proceedings.
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62. Turning to the Commissioner’s decision not to give consideration to s.40(2),
but noting that the Second Respondent had done so, he did not see how it
could do so when a public apology had been made in a blog that went to 5000
employees. This was tantamount to it going in the public domain and was the
catalyst for the recent article in the Express and Star.
63. He agreed that the file note was an absolutely key document.
64. In relation to the law cited in paragraphs 8 and 9 of the Commissioner’s
response to the appeal, he considered that this was an attempt to “retro-fit” the
purpose of the investigation into section 30. He did, contrary to what the
Commissioner asserted, dispute the application of s.30.
65. In relation to the case of Toms v Informaion Commissioner (EA/2005/0027cited
by the Commissioner, he pointed out that civil proceedings would fall under
s.31.
66. The Appellant then took the Tribunal through the response of the Council. He
made reference to paras. 6 to 8, which he contended were attempts by the
Council to discredit him, and his blogging activities.
67. Mr Hopkins, however, made it clear that these were not pursued as grounds of
resistance to the appeal.
68. In relation to the Council powers referred to in para. 11 of the response, the
Appellant said this was an employment matter, pure and simple.
69. Reliance on s.31 in para. 13 had been “dreamt up” by the Council, when
everything had previously been based on s.30. Whilst s.31 was of wider
application, there were no criminal or civil proceedings taken.
70. Turning to the Council’s s.40(2) argument, he pointed out that the
Commissioner had not made her decision on that basis. Addressing the public
issue test, however, he went on to express his concerns about the political
leadership at the time, and what he termed the “craven surrender” to it that
had occurred. In general terms gossip was rife, the entire Council knew of the
suspensions, and everybody knew who the employees been suspended were.
They were immediately identifiable. He accepted their right to privacy, but he
was not asking for information about them, he was actually fighting for them.
71. He referred to the documents that had been provided to him, some 631 days
late, and the individuals identified in them. All this would be in the public
domain. He went on to raise concerns as the manner in which the ICO had
dealt with the matter, communicating with the Council but not with him. He
went through the responses given to the ICO’s enquiries, and to various
recently disclosed documents. He did not consider that this documentation
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was complete, there were gaps in it. The list of people involved was growing,
and these documents suggest that there are others that have not been disclosed.
There was no HR advice, in email form, for example.
72. There was, he submitted, a public interest in not letting a local authority act in
this way. It was not satisfactory for the Council to offer a secret report that had
been commissioned at public expense.
The Second Respondent’s oral submissions.
73. Mr Hopkins for the second respondent made his submissions. He spoke to the
written response document. He first of all made it clear that the Council was
not relying upon the matters previously raised relating to the Appellant’s
blogging activities, or his other FOIA appeals. Whatever the position
previously, the focus in this appeal was now upon the Commissioner’s
decision, and how it was expressed in the Decision Notice. The Council was
not trying to “stitch up” the Appellant, and had not, for example, tried to resist
disclosure on s.14 (vexatious request) grounds. That it had considered these
issues afresh, and provided the Appellant with more disclosure, showed this.
74. Whilst the Appellant had ranged widely, it was important to see the wood for
the trees, and to be alive to the Tribunal’s function to consider the information
within the possession of the respondent at time that fell within the scope of the
Appellant’s request.
75. There was a small amount of information at issue, which wa, firstly, a file note,
which was confirmed (see page 61 the bundle) to have been prepared on 30
January 2018. The second items were the suspension letters, and the third a set
of emails, which had recently been disclosed and are at pages 78 to 109 of the
second part of the bundle. Very little had in fact been withheld, and such
reductions as there had been were uncontentious, and were not disputed to
amount to personal data.
76. It was irrelevant that the Second Respondent had not previously relied upon
s.31, as caselaw had established several years ago that there could be late
reliance upon an exemption not previously advanced by a public authority or
relied upon by the Commissioner.
77. Mr Hopkins went on to discuss the s. 30 and s.31 exemptions. He referred to
the email at page 97 of the bundle, relating to the suspensions following a
“serious information breach”. He submitted that it would be a criminal offence
under s.55 of the Data Protection Act to disclose personal data without consent.
This would bring the investigation into s.30(1)(c) territory.
78. Moving on to s.31, however, this was something for which a better argument
could perhaps be made. It would be wrong to treat these provisions is relating
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only to civil claims or litigation. S.31(2)(b) covered the position precisely. The
tribunal was satisfied that the prejudice test would then apply.
79. The focus is the protection of the secretaries who were wrongly suspended in
January 2018. They wish to have the matter put behind them and did not want
further publicity. They had not consented to disclosure. It was wrong in 2018,
and it would be wrong now, to put this material into the public domain. He
referred to paragraph 19 of the response, and how the secretaries had a
reasonable expectation of privacy in respect of information about their
suspension. Without their consent to this data being so processed, a pressing
social need will have to be shown, and disclosure would have to be a
proportionate means of achieving that need. These employees would suffer if
the letters entered into the public domain.
80. The Appellant argues that this information is already public, “the cat is out of
the bag”, but that, if anything, was an argument for withholding it and not
allowing the Appellant’s request. There would be no point in anonymising the
information, the individuals would be readily identifiable, even if their names
were omitted from the documents.
81. The emails that had been disclosed relating to the trade union members had
been redacted, as had the narrative of what was alleged. This would mean that
it was unfair to disclose the personal data of the individuals.
82. Mr Hopkins went on to refer to the witness statement of David Stevens, at
paragraph 23, where he states that the matter is now live again and could
result in a further investigation. If there was any doubt in January 2018, there
was no doubt now, and there could be further disciplinary action (i.e against
other persons, not the secretaries). There would be dangers if this information
was put into the public domain before any investigation had run its course.
There would be a risk of unfairness in any subsequent disciplinary
proceedings, and a risk of trial by media.
83. In relation to the “steps discretion”, under s.50 of the FOIA, he took the
Tribunal to the relevant case law, but initially invited the Tribunal not to
consider it, as if it stood in the shoes of the Council at the time on 31 January
2018, would have been wrong to give the requested information then.
84. He then called David Stevens, whose witness statement is at pages 117 to 121.
He is the Interim Chief Executive of the Council and was appointed in mid-
2019. He was not therefore in this post at the time giving rise to the Appellant’s
request. His evidence sets out the history of the suspensions and the
Appellant’s request in January 2018.
85. On 13 August 2019 he undertook an investigation into this matter, and his
statement sets out the enquiries that he made, the independent report that he
15
commissioned, and the further documents that came to his attention in the
course of this investigation, which were then provided to the Appellant, in
redacted form.
86. He apologised on behalf of the Council for the late provision of this
information, which was itself the subject to investigation that might require
further action. He accepted that there were errors in the process that led to the
suspension of the Cabinet secretaries.
87. In paragraph 18 David Stevens states that he has met with all of the Cabinet
secretaries, and that they remain very upset by the way that they were treated
by the Council. They were distressed by the attention that this matter received
in the media. By way of making amends to them, a public apology had been
provided on his weekly blog, which went out to all 5000 Council employees.
At paragraph 19 he stated that the secretaries did not wish to have any further
exposure in relation to this matter and that further disclosure of information
relating to it would not be in their interests. Having reiterated in paragraph 21
that the secretaries wanted to put the matter behind them, he expressed his
view that to release the information may cause further distress, concern and
reputational damage for the secretaries and their families.
88. He went on to say how the matter was still live, and that his investigation
could result in action been taken against other Council officers for their
conduct during the suspension investigation, and handling of the original
request. Public disclosure in the circumstances would be highly prejudicial to
this investigation.
89. He went on in paragraph 24 to make the broader point of the need for the
Council to have the ability to conduct internal investigations fairly and
transparently, with witnesses engaging fully in the process. Public disclosure
of such information would be likely to lead to those involved in such
investigations being less candid and unwilling to cooperate with the Council
which he submitted would be strongly contrary to the public interest.
90. He was cross – examined by the Appellant, and questioned by the Tribunal, in
open session. He confirmed that there may be a further investigation which
may involve a number of members of staff. When he had first met with the
secretaries they were still upset and wanted recognition that they had done
nothing wrong. They had had a private apology, which they did not consider
enough they wanted colleagues to know that they had done nothing wrong as
there was a feeling that there was “no smoke without fire”.
91. He had wanted an independent investigation so that someone could look at
the processes as it was clear that the Council did not follow its own processes
or procedure, which was indefensible. The secretaries had wanted him to do
16
the right thing, and if others had done something wrong they too should face
action.
92. The Appellant asked David Stevens if there was an element of dysfunctionality
in the Council, and he replied that, when he had been asked to look into this,
he realised that the Council had not followed its own processes.
93. He was asked about the documents that had recently been disclosed, and if
these been sent to the investigator. He believed that they had, and they would
be some of the documents which had been sent to the ICO, along with all the
emails that have been obtained which related to the incident.
94. When it was put to him that there was a complete absence of documentation,
he said he did not believe that there were any other emails. The suspensions
took place over a day or so. He did not believe there were any other emails in
relation to them. He would have expected a report, and then an independent
officer determining the suspension or making a disciplinary report, but in this
instance this did not happen.
95. He was asked about the file note, and it was put to him that by 26 January 2018
it had come to light that none of the secretaries were responsible for the
alleged leak. He said he could not say when the trade union representative had
made this clear, but it may have been on 26 January. He understood all the
circumstances and could answer more in the closed session if necessary.
96. He was referred to pages 88A to 94Aof the open bundle, which was an email
from the Union to the Council raising a grievance about the way in which their
six members had been treated.
97. Thereafter, the Tribunal went into closed session, which ended the first day of
the hearing, which then had to be re-convened
The closed material and closed session.
98. The Tribunal viewed the closed material. It cannot, of course, reveal its
contents, but suffice it to say that its contents are as contained in the summary
of the closed session provided to the Appellant, as follows:
The closed session lasted approximately 15 minutes.
Mr Hopkins showed the Tribunal the suspension letters. Those letters did not
mention possible criminal offences.
Mr Hopkins indicated that he did not propose to walk the Tribunal through
the redactions made to the email correspondence; the Tribunal could consider
those redactions for itself. The Council’s position was that the redacted text
should remain withheld because (a) its public disclosure would be unfair to
the cabinet secretaries, in revealing further details about what happened to
17
them, and/or (b) it was likely to be relevant to the issues under consideration
in the live investigation to which Mr Stevens had referred in his open
evidence.
Mr Hopkins showed the Tribunal the file note. He explained that (as Mr
Stevens had explained in open), while the Council was not seeking to defend
the process that had been followed in suspending the cabinet secretaries, the
file note did explain the chronology, the steps followed and the issues arising
in the investigation that had occurred up to 30 January 2018. The Council
maintained that this should remain exempt from disclosure, for the reasons
given in open.
99. In the closed session argument was advanced as to whether disclosure of the
substance of these discussions would assist public understanding of
enforcement policy, and the where the balance of public interest would lie.
Further Submissions.
100. During the adjournment the Appellant was provided with the “gist” of
the closed session, and the second respondent provided him the authority of
Birkett v Information Commissioner [2011] EWCA Civ 1606, which confirmed
the Decision of the Upper Tribunal ([2011] UKUT 39 (AAC)) which was cited
as authority for the proposition that on appeal this Tribunal is not confined to
the reasons upon which the public authority relied, or the Commissioner relied
in making her Decision, but may find alternative grounds for its own Decision.
101. The Appellant, in the resumed hearing, conceded this proposition,
whilst, of course, urging the Tribunal not to accede to the Second Respondent’s
invitation to take this approach.
102. The parties then made their final submissions. Mr Hopkins concluded
his for the Second Respondent. He explained the “steps discretion”, and the
caselaw in support of it, as the alternative position that the Council would take.
103. He referred to the s.40(2) exemption first and referred to David Stevens’
evidence. The reasons relied upon were even more cogent now, the
investigation was continuing. He also referred to the fact that the withheld
material would also reveal the trade union membership of the secretaries in
question, which would be considered sensitive personal data.
104. He then went on to consider the s.30 and s.31 exemptions. The
Commissioner had accepted the s.30 exemption, but the Second Respondent
had not majored on it. If the Commissioner had got it wrong, the Tribunal
could substitute a decision on the basis of s.40(2).
18
105. Alternatively, the Tribunal could find that the s.31 exemption was made
out. He took the Appellant’s point that this was not the exemption relied on,
but he cited Birkett as authority for the power that the Tribunal had to do this.
The Second Respondent was relying on s.31(1)(g), not (h). The investigation
was into improper conduct suspected on the part of the secretaries.
106. The exemption did not apply only during the currency of the
investigation, it lasted after it. The purpose of the exemption, the “safe space”
argument, would be defeated if at some later stage the material could become
public. In any event, this investigation was not over, it was ongoing, given
more recent events.
107. In due course, after an adjournment, Mr Hopkins conceded that he
could not resist the appeal in relation to the s.30 ground relied upon.
108. The Appellant’s final submissions addressed firstly, what he termed the
“dreamt up” s.31 exemption. He argued that it was not engaged, as the
Guidance cases are all on policy decisions, and not about specific
investigations. He referred to London Borough of Camden v The Information
Commissioner & Yiannis Voyias [2012] UKUT 190 (ACC) referred to in the
Commissioner’s Guidance.
109. He argued that the Council had to prove that to release the information
would prejudice the investigation.
110. He referred to the Decisions in Alan Digby – Cameron v Information
Commissioner and Bedford Police and Hartfordshire Police [EA/2008/0023 &
0025] and Toms v Information Commissioner [EA/2005/0027] where this
exemption had been considered. He pointed out that it could be in the public
interest to disclose where the investigation had not been conducted properly.
111. He referred to the late disclosure of the further material. It was
important to know what the withheld file note did not contain, as well as what
it did. The Union’s involvement was apparent from the open material. Their
request for reinstatement would then be dealt with in confidential meetings, of
which there would be no file note.
112. He went on to reference the need for disclosure to expose inadequate
investigations, citing the Commissioner’s Guidance, this time in relation to s.30,
in relation to the Jeremy Thorpe trial (Guardian Newspapers Ltd v
Information Commissioner and CC Avon and Somerset Police [EA/2006/0017] ).
113. He then turned to the s.40(2) exemption. His request had been about
Council managers, not the individuals who were suspended. He had never
asked for the suspension letters. The Judge did, at this juncture, point out the
terms of para. 3 of his request. He replied that it should be read in the context
19
of the opening paragraphs, which refer to managers. He did not want to
impinge upon any junior employees’ rights, or the data protection rights of the
secretaries.
114. He referred to paras. 99 to 101 of the Commissioner’s Guidance, headed
“Prejudice to Investigations”. There had to come a point at which, after months,
the risk of prejudice to an investigation was negligible. Only real risk had to be
considered, not fanciful risk, as the Guidance pointed out.
115. He had not sought sensitive data and had only been maintaining the
proper public interest in ensuring that proper procedures had been followed,
to re-assure staff and the public. He reiterated that much was already in the
public domain, there was a lot of gossip, and hundreds of employees knew
about the matter, which then was in the Press.
116. He made reference to page 25 of the Commissioner’s Guidance on s.40,
(“Private v Public Life”) , and how there had been an intrusion into the private
lives of the secretaries when this all happened. They had not invited it. Here
was, he said, no evidence of the secretaries not wanting disclosur, prior to the
Decision Notice.
117. Now, 18 months later the Council had been picking and choosing what
it would disclose, had made the public apology and had expected there would
be leaks (he referred to p.94 of the bundle). The secretaries may now say they
do not want disclosure, but should they too be allowed to pick and choose in
this way?
The Law.
118. The relevant provisions of FOIA and other legislation are set out in full
in Annexe A to this Decision.
Discussion and Findings.
a.)The s.40(2) exemption.
119. Whilst the Council and the Commissioner have approached this request
initially from the standpoint of s.30 or s.31, the Tribunal differs from them by
preferring first to consider the personal data exemption under s.40(2). As will
be apparent, much the same considerations arise, when applying the public
interest test under both exemptions, but the Tribunal considers that the
employees’ private personal data protection rights are as important, if not
more so, than the wider, more public, interests that the Council seeks to
protect under s.31.
20
117. In approaching this issue, once it is accepted, as is clear, that the
information requested is personal data, the question then arises as to whether
it can be released, or whether to do so would breach the data protection
principles. The principles engaged are those now to be found in the GDPR in
Articles 5 and 6, set out in the Annexe to this Decision. Article 6(f) is
particularly relevant :
(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 …”.
118. The GDPR, however, came into force on 25 May 2018, shortly after the
request in this appeal. Consequently, the provisions of the DPA 1998 apply,
and in particular Schedule 2, which at para. 6(1), is similarly worded:
“The processing is necessary for the purposes of legitimate interests pursued by the
data controller or by the third party, or parties to whom the data is disclosed, except
where the processing is unwarranted in any particular case by reason of the prejudice
to the rights or legitimate interests of the data subject.”
119. It is to be noted that the word used is “necessary”. Necessary is a strong
word, it means more than just “desirable” or “advantageous to”. It suggests
that without the information the requester would either be prevented from, or
seriously hampered in pursuing any of the legitimate interests referred to. As
is clear, the Appellant has not been prevented from, or hampered in his
holding to account the actions of the Council in suspending, and then
reinstating, the secretaries in question. There has been considerable public
debate about this, including upon the Appellant’s own blog. The basic facts are
known, and it is difficult to see what more of any significant value is likely be
added by the release of the personal data that the Appellant seeks.
120. The Appellant argues that the information is already in the public
domain, citing in particular the apology made to the relevant employees in the
blog from David Stevens in August 2019. That may be so, but the evidence of
David Stevens, which the Tribunal has no reason to doubt, is that the
secretaries have told him that they do not want this data released. What the
Appellant seems not to appreciate is the difference between release of this
some of this data, the basic facts of their suspensions, for limited purposes to a
limited audience (i.e the secretaries requiring a public apology made for their
colleagues in the Council to see) , and release of the totality of the personal
data held in relation to this matter to the world in general, and for ever.
121. There is a difference between the fact of their suspensions and their
identification as the persons who were suspended, and the actual personal
21
data contained in the documentation that the Appellant seeks. The latter is
likely to go further, of course, than the former.
122. There is an obvious course open to the Appellant, which he has not
taken, and that is to seek the consent of the individuals (any one or more of
them) to release of this personal data. Whilst he has argued that by the
requirement for the public apology that has now been given, they have
somehow given that consent, or waived their data protection rights, he cannot
demonstrate that they or any of them, have consented to their personal data
being processed in this way.
123. David Stevens’ evidence was that they would be distressed and upset if
this request were to be acceded to, wanting, as they do to put this matter
behind them, which the Tribunal accepts. That factor, together with the
absence of any real impediment to the pursuit by the Appellant of the interests
of accountability and transparency in which he is engaged, satisfies the
Tribunal that the balancing exercise falls in favour of non – disclosure. That
this may, as the Appellant would see it, enable the Council to shelter behind
the interests of the secretaries, be a consequence of this approach, is indeed
correct, but it arises because of the primacy of the individuals’ personal data
protection rights in these circumstances. The Tribunal would accordingly
allow the appeal, but substitute an alternative Decision Notice, maintaining
this exemption, on that basis.
b.The s.30/31 exemptions.
124. The first question that this aspect of the appeal raised was whether s.30
applied, could the Council rely upon its provisions? The Tribunal’s provisional
view was that it could not, and the Council, and then the Commissioner,
misapplied these provisions. The reason they did so, was a misunderstanding
of the actual purpose of the creation of the data in question. Whilst prosecution
was a possibility, the Tribunal is quite satisfied that it was a remote one, and
not in the mind of the Council at the time. The provisions of s.30 apply to
criminal investigations, not to anything else. The fact that nothing in the open
or the closed material makes any reference whatsover to potential criminal
proceedings demonstrates that this section is not engaged. The Second
Respondent conceded, in closing submission, that this exemption could not
succeed. The First Respondent, of course, has not made any such concession,
so the Tribunal has to determine the matter. As will be apparent, the Tribunal
considers that the appeal on this basis should succeed.
125. The Tribunal’s view, however, is that s.31 is indeed engaged. The
Council were under a duty to investigate possible breach of confidentiality on
the part of its employees. That may have led to disciplinary action, after the
suspensions that it clearly did lead to.
22
126. With respect to the Commissioner and the Council whose argument this
initially was, they have both been somewhat confused as to the role and
relevance of the Employment Rights Act 1996. That Act does not confer any
“power” to conduct an investigation, or any requirement to do so.
Investigation is almost invariably a pre – requisite for a dismissal to be found
to be fair under the provisions of s.98 of that Act, but the Act itself confers no
powers or even specific duties to conduct such investigations.
127. The power to do so, the Tribunal considers, is derived from the
Council’s duties as an employer, and its general powers to carry out those
duties for the purposes for which it exists, the administration of the local
authority functions that it carries out. Section 1 of the Localism Act 2011
contains such powers.
128. The Council’s written submission is a little misconceived too, when, at
para. 11, reference is again made to the Employment Rights Act 1996, and how
unfair treatment may lead to “constructive unfair dismissal”. That is so, but it
has nothing to do with the power that the Council was exercising when it
suspended, and then reinstated the employees in question. Their suspected
conduct may have led to actual, not constructive dismissals (which would
have required resignations on the part of the employees) , which may in turn
have led to claims of unfair dismissal under the Act. Equally, and perhaps
more pertinently, regardless of any Employment Tribunal proceedings, which
would have to have been instituted by any affected employee, the Council,
faced with suspected breaches of confidentiality, was entitled to consider
taking proceedings itself, in the High or County Court against the relevant
employees in which injunctive relief may have been sought. There is, however,
no evidence it actually did have such proceedings in mind when conducting
what was described (para.15 of the Council’s response, page 34 of the bundle)
as “an internal and preliminary investigation”.
129. The Council was, we are satisfied, exercising its powers and functions
as an employer, and s.31(1)(g) was engaged. In relation to the functions set out
in s.31(2), these are wide ranging and include at s.31(2)(a), investigations for
the purpose of ascertaining whether any person has failed to comply with the
law. “The “law” includes civil as well as criminal legal obligations, and in this
case, it is arguable that the investigation was to ascertain whether the
secretaries had broken their legal duty of confidentiality. That said, we must
bear in mind that it is the purpose in the mind of the Council that we must
examine, and whilst we have expressly discounted that the purpose of
potential criminal proceedings was in the contemplation of the Council at the
time, we could equally question whether the purpose truly was to ascertain if
any person had actually broken the (civil) law. Rather, if the investigation did
not fall truly under s.31(2)(a), it clearly would fall under s.31(2)(b), i.e it was to
ascertain if any person was responsible for conduct which was improper, such
as leaking confidential information. Either way, s.31 is, in our view, engaged.
23
We are satisfied that to disclose the requested information would be likely to
prejudice the carrying out of the function of the Council to conduct such
investigations.
130. Having made that finding, s.31 too providing only a qualified
exemption (s.2(3) of the FOIA), the Tribunal has then had to consider the
public interest test. In doing so, in part, the same considerations really apply as
apply under the public interest test for the purposes of s.40(2) above, in
relation to the personal data interests of the secretaries. Additionally there are
the other, wider , interests relied upon by the Council in support of the
contention that data obtained in the course of such investigations should be
exempt , because of the likely effect upon such investigations of the potential
for subsequent release into the public domain upon the willingness with
which , or the manner in which, persons involved participate in, or carry out,
such investigations. The Tribunal accepts that too as a weighty point,
militating against disclosure.
131. Again, the Appellant has not been able to demonstrate how the absence
of these particular, and rather limited, pieces of data have impeded his ability
to pursue the legitimate interests he seeks to advance, and for all these reasons,
the Tribunal, having found s.31 was engaged , is satisfied that the public
interest test falls against disclosure.
132. As will be appreciated, the Tribunal has upheld these exemptions, but
on different grounds, and has relied upon the authority of Birkett v
Information Commissioner [2011] EWCA Civ 1606 as entitling it to do so.
Whilst not cited by Mr Hopkins, Birkett was approved, and cited by a three
Judge Upper Tribunal in Information Commissioner v Malnick and the
Advisory Committee on Business Appointments [2018 UKUT 72 (AAC) (see
para. 102 in particular). In the circumstances, the Tribunal has not considered
the “steps discretion” advanced in the alternative by the Second Respondent.
133. The appeal is accordingly allowed, as the Commissioner’s Decision
Notice was not in accordance with the law. We, however, uphold the
exemption in respect of the requested information on two alternative bases,
and accordingly substitute a Decision Notice in those terms. Our decision is
unanimous.
Signed: Judge Holmes
Judge of the First-tier Tribunal
Date: 30 April 2020
Date Promulgated: 04 May 2020
24
ANNEXE A
Freedom of Information Act 2000
30 Investigations and proceedings conducted by public authorities
(1) Information held by a public authority is exempt information if it has at any time been
held by the authority for the purposes of–
(a) any investigation which the public authority has a duty to conduct with a view to it
being ascertained–
(i) whether a person should be charged with an offence, or
(ii) whether a person charged with an offence is guilty of it,
(b) any investigation which is conducted by the authority and in the circumstances may
lead to a decision by the authority to institute criminal proceedings which the authority has
power to conduct, or
(c) any criminal proceedings which the authority has power to conduct.
(2) Information held by a public authority is exempt information if–
(a) it was obtained or recorded by the authority for the purposes of its functions relating
to–
(i) investigations falling within subsection (1)(a) or (b),
(ii) criminal proceedings which the authority has power to conduct,
(iii) investigations (other than investigations falling within subsection (1)(a) or (b)) which
are conducted by the authority for any of the purposes specified in section 31(2) and either
by virtue of Her Majesty´s prerogative or by virtue of powers conferred by or under any
enactment, or
(iv) civil proceedings which are brought by or on behalf of the authority and arise out of
such investigations, and
(b) it relates to the obtaining of information from confidential sources.
(3) The duty to confirm or deny does not arise in relation to information which is (or if it
were held by the public authority would be) exempt information by virtue of subsection (1)
or (2).
(4) In relation to the institution or conduct of criminal proceedings or the power to conduct
them, references in subsection (1)(b) or (c) and subsection (2)(a) to the public authority
include references–
(a) to any officer of the authority,
(b) in the case of a government department other than a Northern Ireland department, to
the Minister of the Crown in charge of the department, and
25
(c) in the case of a Northern Ireland department, to the Northern Ireland Minister in
charge of the department.
(5) In this section–
"criminal proceedings" includes– [N/A]
31 Law enforcement
(1) Information which is not exempt information by virtue of section 30 is exempt
information if its disclosure under this Act would, or would be likely to, prejudice–
(a) the prevention or detection of crime,
(b) the apprehension or prosecution of offenders,
(c) the administration of justice,
(d) the assessment or collection of any tax or duty or of any imposition of a similar nature,
(e) the operation of the immigration controls,
(f) the maintenance of security and good order in prisons or in other institutions where
persons are lawfully detained,
(g) the exercise by any public authority of its functions for any of the purposes specified in
subsection (2),
(h) any civil proceedings which are brought by or on behalf of a public authority and arise
out of an investigation conducted, for any of the purposes specified in subsection (2), by or
on behalf of the authority by virtue of Her Majesty´s prerogative or by virtue of powers
conferred by or under an enactment, or
(i) any inquiry held under the [1976 c. 14.] Fatal Accidents and Sudden Deaths Inquiries
(Scotland) Act 1976 to the extent that the inquiry arises out of an investigation conducted,
for any of the purposes specified in subsection (2), by or on behalf of the authority by virtue
of Her Majesty´s prerogative or by virtue of powers conferred by or under an enactment.
(2) The purposes referred to in subsection (1)(g) to (i) are–
(a) the purpose of ascertaining whether any person has failed to comply with the law,
(b) the purpose of ascertaining whether any person is responsible for any conduct which is
improper,
(c) the purpose of ascertaining whether circumstances which would justify regulatory
action in pursuance of any enactment exist or may arise,
(d) the purpose of ascertaining a person´s fitness or competence in relation to the
management of bodies corporate or in relation to any profession or other activity which he
is, or seeks to become, authorised to carry on,
(e) the purpose of ascertaining the cause of an accident,
(f) the purpose of protecting charities against misconduct or mismanagement (whether by
trustees or other persons) in their administration,
26
(g) the purpose of protecting the property of charities from loss or misapplication,
(h) the purpose of recovering the property of charities,
(i) the purpose of securing the health, safety and welfare of persons at work, and
(j) the purpose of protecting persons other than persons at work against risk to health or
safety arising out of or in connection with the actions of persons at work.
(3) The duty to confirm or deny does not arise if, or to the extent that, compliance with
section 1(1)(a) would, or would be likely to, prejudice any of the matters mentioned in
subsection (1).
40 Personal information (as amended post GDPR; prior provisions have
references to the DPA 1998)
(1) Any information to which a request for information relates is exempt information if it
constitutes personal data of which the applicant is the data subject.
(2) Any information to which a request for information relates is also exempt
information if—
(a) it constitutes personal data which does not fall within subsection (1), and
(b) the first, second or third condition below is satisfied.
(3A) The first condition is that the disclosure of the information to a member of the
public otherwise than under this Act—
(a) would contravene any of the data protection principles, or
(b) would do so if the exemptions in section 24(1) of the Data Protection Act 2018
(manual unstructured data held by public authorities) were disregarded.
4 .. N/A
(5A) The duty to confirm or deny does not arise in relation to information which is (or if
it were held by the public authority would be) exempt information by virtue of subsection
(1).
(5B) The duty to confirm or deny does not arise in relation to other information if or to
the extent that any of the following applies—
(a) giving a member of the public the confirmation or denial that would have to be given
to comply with section 1(1)(a)—
(i) would (apart from this Act) contravene any of the data protection principles, or
(ii) would do so if the exemptions in section 24(1) of the Data Protection Act 2018
(manual unstructured data held by public authorities) were disregarded;
(b) giving a member of the public the confirmation or denial that would have to be given
to
27
(6) ...
(7) In this section—
“the data protection principles” means the principles set out in—
(a) Article 5(1) of the GDPR, and
(b) section 34(1) of the Data Protection Act 2018;
“data subject” has the same meaning as in the Data Protection Act 2018 (see section 3 of
that Act);
“the GDPR”, “personal data”, “processing” and references to a provision of Chapter 2 of
Part 2 of the Data Protection Act 2018 have the same meaning as in Parts 5 to 7 of that
Act (see section 3(2), (4), (10), (11) and (14) of that Act)
(8) In determining for the purposes of this section whether the lawfulness principle in
Article 5(1)(a) of the GDPR would be contravened by the disclosure of information, Article
6(1) of the GDPR (lawfulness) is to be read as if the second sub-paragraph (disapplying the
legitimate interests gateway in relation to public authorities) were omitted.
Data Protection Act 1998
SCHEDULE 2
CONDITIONS RELEVANT FOR PURPOSES OF THE FIRST PRINCIPLE: PROCESSING OF ANY
PERSONAL DATA
1The data subject has given his consent to the processing.
2The processing is necessary—
(a)for the performance of a contract to which the data subject is a party, or
(b)for the taking of steps at the request of the data subject with a view to entering into a
contract.
3The processing is necessary for compliance with any legal obligation to which the data
controller is subject, other than an obligation imposed by contract.
4The processing is necessary in order to protect the vital interests of the data subject.
5The processing is necessary—
(a)for the administration of justice,
(b)for the exercise of any functions conferred on any person by or under any enactment,
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(c)for the exercise of any functions of the Crown, a Minister of the Crown or a government
department, or
(d)for the exercise of any other functions of a public nature exercised in the public interest by
any person.
6(1)The processing is necessary for the purposes of legitimate interests pursued by the data
controller or by the third party or parties to whom the data are disclosed, except where the
processing is unwarranted in any particular case by reason of prejudice to the rights and
freedoms or legitimate interests of the data subject.
(2)The Secretary of State may by order specify particular circumstances in which this
condition is, or is not, to be taken to be satisfied.
The relevant provisions of the GDPR are as follows:
Article 5 Principles relating to processing of personal data
1. Personal data shall be:
(a) processed lawfully, fairly and in a transparent manner in relation to the data subject
('lawfulness, fairness and transparency');
Article 6 Lawfulness of processing
1. Processing shall be lawful only if and to the extent that at least one of the following
applies:
(a) to (e) – N/A
(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.
Localism Act 2010
1.Local authority's general power of competence E+W
(1)A local authority has power to do anything that individuals generally may do.
(2)Subsection (1) applies to things that an individual may do even though they are in
nature, extent or otherwise-
(a)unlike anything the authority may do apart from subsection (1), or
(b)unlike anything that other public bodies may do.
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(3)In this section "individual" means an individual with full capacity.
(4)Where subsection (1) confers power on the authority to do something, it confers power
(subject to sections 2 to 4) to do it in any way whatever, including-
(a)power to do it anywhere in the United Kingdom or elsewhere,
(b)power to do it for a commercial purpose or otherwise for a charge, or without charge,
and
(c)power to do it for, or otherwise than for, the benefit of the authority, its area or persons
resident or present in its area.
(5)The generality of the power conferred by subsection (1) ("the general power") is not
limited by the existence of any other power of the authority which (to any extent) overlaps
the general power.
(6)Any such other power is not limited by the existence of the general power (but see
section 5(2)).
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