Bilgi Açıklama Değerlendirmesinin Esas Alınacağı Tarih

FIRST-TIER TRIBUNAL
GENERAL REGULATORY CHAMBER
(INFORMATION RIGHTS) Appeal Reference: EA/2019/0227

Heard via CVP on 18 October 2021

Before

UPPER TRIBUNAL JUDGE RINTOUL
(SITTING AS A JUDGE OF THE FIRST-TIER TRIBUNAL)
TRIBUNAL MEMBER P TAYLOR
TRIBUNAL MEMBER E YATES
Between
REUBEN KIRKHAM
Appellant
and

THE INFORMATION COMMISSIONER
First Respondent

and

ALAN DRANSFIELD
Second Respondent
Representation:

For the Appellant: in person
For the First Respondent: Mr Kosmin
For the Second Respondent: in person

DECISION & REASONS

1. The appellant challenges a decision of the First Respondent made in June 2019 to refuse
(Decision FS50802258) a request for information in respect of the Second Respondent.
That request was in three parts, the Appellant seeking:

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(i) the email correspondence between Mr Dransfield and the Commissioner concerning
the effective ban imposed on Mr Dransfield (including any warnings that were made);

(ii) any minutes or internal correspondence discussing the basis for implementing this
decision and

(iii) the contents of s.50 complaints that were rejected under section 50(2)(c)

2. The ICO’s case is, in summary that it does not hold the information sought at (ii) and
that the exemption set out in s 40 (2) of FOIA applies to (i) and (iii).

3. Mr Dransfield was joined to the proceedings on 7 July 2020, substantially after the
appeal was lodged.

4. In a ruling issued on 16 July 2021, the Tribunal identified a preliminary issue which
ought to be determined:

(1) When considering an exemption under section 40 (2) of FOIA, is the Tribunal
bound to make the assessment of the public interest at the point the decision
was made? That is, is the reasoning in APPGER v ICO & FCO [2015] UKUT
377 (AAC) and Maurizi v The Information Commissioner and The Crown
Prosecution Service [2019] UKUT 262 (AAC) applicable?

(2) If so, are there any exceptions to the general rule which may apply on the facts
of this appeal?

(3) If not, what is the appropriate point for the consideration of the public interest?

5. By way of clarification, the ICO submits that, properly understood, the reference to the
public interest balance are a reference to the balancing exercise required under section
40 (2) of FOIA since the exemption under section 40 (2) is absolute, and section 2 (1) of
FOIA is not applicable. That is not a point of clarification which the appellant opposes,
recognising in his skeleton at A 2 (1) that the s 40 (2) exemption is absolute. The second
respondent, in adopting the appellant’s submissions, does not take issue with this
point.

6. The appellant’s answers to the preliminary issue are, in summary that:

(1) APPGER and Maurizi are not applicable as they do not relate to the rights of the
information subject and section 40 (2) is an absolute exemption.

(2) Even if APPGER and Maurizi did apply, there is no public or legitimate interest
under article 6 (1)(a) of GDPR to consider, and neither authority applies to
absolute exemptions

(3) The appropriate time point for consideration of the public interest, is the date
the Tribunal reaches its decision, or, in respect of a decision by the ICO, when
the ICO’s decision notice is issued.

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7. The respondent’s response is, in summary, that:

(1) Both APPGER and Maurizi can be distinguished because this appeal (unlike this
appeal) did not relate to absolute exemptions, and the UT in those cases
considered the timing point in the context of section 2 (1)(b) of FOIA.

(2) The principle that the correctness of the public authority’s refusal to discuss the
public interest balance is to be assessed according to the circumstances as at the
date the public authority made its response is well-established (see R(Evans) V
Attorney-General [2015] UKSC 21 and thus there can be no assessment at a
different point such as the Tribunal’s decision.

(3) When considering an exemption under section 40(2) FOIA, the Tribunal is
bound to make the assessment of the balance of legitimate interests of the public
in disclosure of the requested information under FOIA and the interests
or fundamental rights and freedoms of the data subject at the point the public
authority completed its handling of the information request. Further to section
17(7) FOIA that date will be: (i) where an internal review was offered and was
carried out in accordance with relevant timescales, the date of the completion of
that internal review; (ii) where an internal review was offered but was not
carried out in accordance with relevant timescales, the date by which the
internal review should have been conducted; and (iii) if no internal review was
offered, the date of the initial refusal notice.

8. In his reply, Dr Kirkham submits that the ICO has misunderstood Evans and that Mr
Dransfield’s post-decision consent to disclosure can be taken into account. In doing so
he drew attention in particular to paragraphs [72] to [74] of Evans. He submits also
that Maurizi is not authority for the ICO’s position. He submitted also that the ICO’s
position did not take account of Mr Dransfield’s interest, relying on DEFRA v ICO and
SB [2011] UKUT 39 (AAC).

9. Dr Kirkham also submits that the ICO’s approach overlooks the GDPR and that the
regime under the DPA 2018 is very different from that under the DPA 1998

10. The Second Respondent has effectively adopted the appellant’s arguments and
submission on these points.

The hearing

11. The hearing took place via CVP and there were no material difficulties which arose.
Although at times, Mr Dransfield had difficulties in hearing Mr Kosmin, we do not
consider that materially affected his ability to participate in proceedings or reply to Mr
Kosmin, not least as he sought primarily to rely on Dr Kirkham’s submissions.

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12. We were assisted by a PowerPoint presentation from Dr Kirkham, and heard
submissions from him, Mr Kosmin and Mr Dransfield.

13. In addition to the skeleton arguments, presentation and replies, we also took into
account the bundle of authorities provided. Mr Dransfield served a number of
documents which were admitted but were not relevant to the preliminary issue under
consideration.

The Law

14. As at the date of the ICO’s decision, section 40 of FOIA provided, so far as is relevant:

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

(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.

(3B) The second condition is that the disclosure of the information to a member of the public
otherwise than under this Act would contravene Article 21 of the GDPR (general
processing: right to object to processing).

(4A) The third condition is that—

(a) on a request under Article 15(1) of the GDPR (general processing: right of access by
the data subject) for access to personal data, the information would be withheld in reliance
on provision made by or under section 15, 16 or 26 of, or Schedule 2, 3 or 4 to, the Data
Protection Act 2018, or

(b) on a request under section 45(1)(b) of that Act (law enforcement processing: right of
access by the data subject), the information would be withheld in reliance on subsection (4)
of that section.

…

(7) In this section—

"the data protection principles" means the principles set out in—

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(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" and "processing" and references to a provision of Chapter
2 of Part 2 of the Data Protection Act 2018 have the have the same meaning as in Parts
5 to 7 of the Data Protection Act 2018 (see section 3(2), (4) (10) 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.

15. Although section 40 has been amended with effect form 31 December 2020 by the Data
Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit)
Regulations 2019/419, we do not consider that this was material. The effect of the
amendments was primarily to reflect that the GDPR is now the “UK GDPR” but
without changing the underlying substance.

16. Sections 50, 57 and 58 of FOIA provide, so far as is relevant to the consideration of this
preliminary issue:

50.— Application for decision by Commissioner.

(1) Any person (in this section referred to as “the complainant” ) may apply to the Commissioner
for a decision whether, in any specified respect, a request for information made by the
complainant to a public authority has been dealt with in accordance with the requirements of
Part I.

(2) On receiving an application under this section, the Commissioner shall make a decision
unless it appears to him—

(a) that the complainant has not exhausted any complaints procedure which is provided by
the public authority in conformity with the code of practice under section 45,

(b) that there has been undue delay in making the application,

(d) that the application has been withdrawn or abandoned.

…

(4) Where the Commissioner decides that a public authority—

(a) has failed to communicate information, or to provide confirmation or denial, in a case
where it is required to do so by section 1(1), or

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(b) has failed to comply with any of the requirements of sections 11 and 17, the decision
notice must specify the steps which must be taken by the authority for complying with
that requirement and the period within which they must be taken.

…

(7) This section has effect subject to section 53.

57.— Appeal against notice served under Part IV.

(1) Where a decision notice has been served, the complainant or the public authority may
appeal to the Tribunal against the notice.

(2) A public authority on which an information notice or an enforcement notice has been
served by the Commissioner may appeal to the Tribunal against the notice.

(3) In relation to a decision notice or enforcement notice which relates—

(a) to information to which section 66 applies, and

(b) to a matter which by virtue of subsection (3) or (4) of that section falls to be determined
by the responsible authority instead of the appropriate records authority, subsections (1)
and (2) shall have effect as if the reference to the public authority were a reference to the
public authority or the responsible authority.

58.— Determination of appeals.

(1) 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.

(2) On such an appeal, the Tribunal may review any finding of fact on which the notice in
question was based.

Mechanism of disclosure – GDPR concerns

17. At this point, we consider it useful to reflect on the process to be undertaken where, as
here, the application of section 40 of FOIA is relied upon and how any balancing of the
public interest is undertaken by the public authority in question.

18. Assuming that the information sought is “personal data” relating to a data subject
(which is the case here), the exemption is engaged if one of the three conditions are
met (see section 40 (2) (b) of FOIA).

19. In this appeal we are concerned with the first condition which requires any disclosure
of such information to be in accordance with Article 5(1)(a) GDPR. That is, disclosure

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under FOIA (and thus processing) must (i) fair, (ii) transparent and (iii) one of the
conditions in Article 6 must be met. We consider it necessary to set it out in full, as it
applied at the date of the ICO’s decision:

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) the data subject has given consent to the processing of his or her personal data for one
or more specific purposes;

(b) processing is necessary for the performance of a contract to which the data subject is
party or in order to take steps at the request of the data subject prior to entering into a
contract;

(d) processing is necessary in order to protect the vital interests of the data subject or of
another natural person;

(e) processing is necessary for the performance of a task carried out in the public interest or
in the exercise of official authority vested in the controller;

(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.

Point (f) of the first subparagraph shall not apply to processing carried out by public
authorities in the performance of their tasks.

2. Member States may maintain or introduce more specific provisions to adapt the application
of the rules of this Regulation with regard to processing for compliance with points (c) and (e)
of paragraph 1 by determining more precisely specific requirements for the processing and
other measures to ensure lawful and fair processing including for other specific processing
situations as provided for in Chapter IX.

3. The basis for the processing referred to in point (c) and (e) of paragraph 1 shall be laid down
by:

(a) Union law; or

(b) Member State law to which the controller is subject.

The purpose of the processing shall be determined in that legal basis or, as regards the
processing referred to in point (e) of paragraph 1, shall be necessary for the performance of a
task carried out in the public interest or in the exercise of official authority vested in the
controller. That legal basis may contain specific provisions to adapt the application of rules of
this Regulation, inter alia: the general conditions governing the lawfulness of processing by the
controller; the types of data which are subject to the processing; the data subjects concerned;
the entities to, and the purposes for which, the personal data may be disclosed; the purpose

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limitation; storage periods; and processing operations and processing procedures, including
measures to ensure lawful and fair processing such as those for other specific processing
situations as provided for in Chapter IX. The Union or the Member State law shall meet an
objective of public interest and be proportionate to the legitimate aim pursued.

4. Where the processing for a purpose other than that for which the personal data have been
collected is not based on the data subject's consent or on a Union or Member State law which
constitutes a necessary and proportionate measure in a democratic society to safeguard the
objectives referred to in Article 23(1), the controller shall, in order to ascertain whether
processing for another purpose is compatible with the purpose for which the personal data are
initially collected, take into account, inter alia:

(a) any link between the purposes for which the personal data have been collected and the
purposes of the intended further processing;

(b) the context in which the personal data have been collected, in particular regarding the
relationship between data subjects and the controller;

(c) the nature of the personal data, in particular whether special categories of personal data
are processed, pursuant to Article 9, or whether personal data related to criminal convictions
and offences are processed, pursuant to Article 10;

(d) the possible consequences of the intended further processing for data subjects;

(e) the existence of appropriate safeguards, which may include encryption or
pseudonymisation.

20. It is evident from this that there is limited scope for the balancing of the public interest
with the rights of the data subject.

21. While we agree with Dr Kirkham’s submission in his reply at [15] that balancing
exercises are not all the same, equally we note that the starting point for a balancing
exercise may differ; and, as a matter of general law, the weight to be attached to the
interests weighed may vary considerably. The conclusions we draw from the case law
to which we were taken, including Cox v ICO [2018] UKUT 119 AAC and Information
Commissioner v Halpin [2019] UKUT 29 (AAC) is that while the presumption under
FOIA is that information will be disclosed unless exempt, under the GDPR regime,
personal data will be processed only where necessary and subject to stringent
protections. And, consent to the use of the data must be informed. It can, also be
withdrawn.

22. As an aside, we note that we are here not for the purpose of the preliminary issue
concerned with whether Mr Dransfield had in fact consented to disclosure, but a
scenario in which the ICO could otherwise rely on section 40. We note also that the
balancing exercise, so far as it exists in Article 6 GDPR focusses on whether interests
are being overridden, not that they may be.

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23. In any event, as is now accepted by all parties, Mr Dransfield has now given his consent,
although whether that consent had been given prior to the decision is in issue. Thus,
the section 40 exemption would not apply.

Discussion

24. We bear in mind that underlying much of the argument is the fact that Mr Dransfield
has now consented to the disclosure of material held by the ICO which fell within the
request.

25. We begin our discussion of the issues with the submission from the ICO that in effect,
there is a jurisdictional issue arising from Evans and the combined effect of sections 50,
57 and 58 of FOIA, and that it is that which underpins the reasoning in APPGER and
Maurizi.

26. We accept that, as a statutory tribunal, the FtT only has the jurisdiction conferred on it,
but equally it has the power to consider whether it does have jurisdiction – see Sugar v
BBC [2009] UKHL 9 and Fish Legal [2015] UKUT 52(AAC) which is binding on us, at
[55].

27. The effect of sections 50, 57 and 58 of FOIA was considered in Evans at [73] and [74]:

73. However, although the question whether to uphold or overturn (under section 50 or
sections 57 and 58 ) a refusal by a public authority must be determined as at the date of the
original refusal, facts and matters and even grounds of exemption may, subject to the
control of the Commissioner or the tribunal, be admissible even though they were not
in the mind of the individual responsible for the refusal or communicated at the time of
the refusal to disclose (i) if they existed at the date of the refusal, or (ii) if they did not
exist at that date, but only in so far as they throw light on the grounds now given for
refusal [emphasis added]– see Coppel on Information Rights 4th ed (2014), paras 28-022
and 28–024, and Department for The Environment, Food and Rural Affairs v Information Comr
(Birkett) [2011] EWCA Civ 1606, [2012] PTSR 1299 . Although Birkett was a decision on the
2003 Directive and EIR 2004 , it seems clear that the reasoning of Sullivan LJ (summarised
at para 21 of the decision) applies with equal force to the procedures under sections 50, 57
and 58 . Given the language of section 53(2) , when compared with that of section 50(4) and
section 58(1) , it seems to me that it must also apply to the accountable person when
issuing a section 53 certificate.

74. Therefore, before the Commissioner on a section 50 application, or before the tribunal
on a section 57 appeal, it would often be open to the parties (as they did in this case) to
rely on factual evidence, expert evidence, or assessments of possible risks, or even
exemptions, which may not have been known to, or in the mind of, the person who was
responsible for the original decision to refuse the section 1 request [emphasis added].
However, it would not be open to the parties, or at least not nearly so easily open to them,
to rely on such matters on an appeal from the First-tier Tribunal to the Upper Tribunal or
from the Upper Tribunal to the Court of Appeal, which can only be brought on a point of
law (see para 16 above).

Appeal Reference: EA/2019/0227

28. In APPGER, having noted [48] to [49] that the Supreme Court’s observations were
obiter, the Upper Tribunal considered that they were at the almost binding end of the
spectrum, and held:

52. Second, the judgment of the Supreme Court confirms and powerfully supports the view
that taken as a whole, the language of the statutory scheme indicates that the
Commissioner (and the FTT) is charged with assessing past compliance with FOIA, not
with monitoring ongoing compliance. That scheme is that a request is made to a public
authority and a natural and sensible reading of the language of the provisions relating
the application that can be made to the Commissioner and then an appeal of his decisions
(see sections 50, 57 and 58) is that they relate to how the public authority dealt with the
request and then to whether the Commissioner erred in law on that issue.

53. It is well established that the Commissioner and the FTT can consider evidence that post
dates the decisions of the public authority and that on appeal the FTT reconsiders the
application to the Commissioner and makes its own decision. But there is nothing
unusual about a decision maker taking account of later evidence to inform an historical
position.

54. Third, there is room for the view that there may be unfortunate practical consequences
whichever construction of the public interest timing point is adopted.

55. In a case such as the Badger Trust where a “safe space” argument is raised it is readily
understandable why the requester and the FTT would feel frustrated in having to
consider a case on an historical basis if by the time the matter is before the FTT there are
obvious and powerful arguments supporting the view that the safe space has expired.
But as has happened the public authority can accept this and provide the information
without a further request being made or pursuant to such a request.

56. In other cases, and this is an example, there are clearly disadvantages in the
Commissioner and then the FTT and then further appellate tribunals and courts being
faced with a moving target on public interest issues. This is particularly so when one
remembers that the trigger to the FOIA jurisdiction is a request to a public authority
holding information. Indeed it seems to us that Parliament would not have intended that
the public authority would effectively be removed as the decision maker because the
passage of time and changes in circumstances even if the last date for appellate tribunals
and courts was the hearing before the FTT. Rather it seems to us that Parliament would
have intended that the requester should make a further request if he wished to rely on
changes over time to the public interest factors.

57. Fourth, this view of Parliamentary intention and the conventional understanding do not
result in any asymmetric unfairness as to the relevance of post-assessment developments.
Rather, the decision in Information Commissioner v HMRC and Gaskell [2011] UKUT 313
(AAC); [2011] 2 Info LR 11, applying earlier authority, that section 50(4) gives the
Commissioner a discretion not to order disclosure reflects an overall intention to promote
results that reflect the balance of public interest by the making of requests for disclosure
from time to time and a residual discretion in exceptional circumstances to avoid a
disclosure that should have been made earlier but now should not be because of changes
in circumstances. This does not reflect different approaches to the primary arguments
whether the request has been dealt with in accordance with Part 1 of FOIA but a residual
discretion on remedy if it has not been.

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29. In summary, the ICO’s argument is that on a proper construction of its functions under
section 50 FOIA its functions are limited to assessing how a request for information
“has been dealt with” by a public authority and the Tribunal’s jurisdiction is described
with reference only to the Commissioner’s decision (by use of the term “against the
notice”) Thus, it does not have the jurisdiction to consider the public interest as at the
date of decision.

30. Dr Kirkham, and by extension, Mr Dransfield, submit that is based on a misreading of
Evans and seek to place reliance in particular on the passages highlighted above. They
also seek to rely on the mechanisms by which the exemptions in sections 12 and 14 of
FOIA apply and can be applied at a stage after the request is made. It is submitted
further that the ICO has erred in failing proactively to consult Mr Dransfield as a data
subject as the processing of his data involved any consideration of his data, not just
disclosure, and that processing had to be done in compliance with Article 5 GDPR.
This, it is said, amounts to an error of law which engages section 50 of FOIA.

31. We remind ourselves that the FtT is a creation of statute; its powers are limited. We
are satisfied that, on the basis of the reasoning in Evans and in APPGER the FtT is
confined when considering whether an exemption applies, to a consideration of the
factual matrix which existed at the time of that decision. As it is, however, conducting
an appeal, it can take into account material not before the public authority (as can the
ICO) which may show that the findings of fact were wrong, or the law was wrongly
applied. The additional material may show that the public authority was wrong, albeit
with the benefit of hindsight, but what it is not permitted to do is consider a different
factual matrix as at the date of the hearing.

32. It is of note that the language used in the statutes looks backwards, and insofar as the
decision in Maurizi at [166] to [168] suggests that a contrary interpretation could be
adopted, we consider that, as did the Upper Tribunal, we are bound by both APPGER
and Evans to the effect that the FtT must consider the public interest and the factual
matrix as it existed at the date of decision.

33. We do not accept that the ICO has misrepresented Evans. If, for example, Mr
Dransfield had in fact consented to disclosure of the relevant material prior to the date
of decision, then evidence to that effect could be adduced. That is within the ambit of
Evans at [74]. But that is not the same as permitting a subsequent consent to disclosure
to be taken into account in determining whether the section 40 (2) exemption applied
as the issue is whether consent existed at the date of the public authority’s decision,
whether it was aware of it at the time or not.

34. We do not accept that this requires the FtT to use a “time machine”, as Dr Kirkham
submits. What is required is a need to find facts as they existed at a specific point of
time in the past and whether, as at that date, a specific exemption applied.

35. Contrary to what Dr Kirkham submits, we do not consider this impractical. Courts and
Tribunals are accustomed to making findings about the circumstances at a particular
time in the past; that is what they do. In our view, Dr Kirkham over-complicates the

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process. Insofar as there may be an evidential problem, owing to a lack of records, the
problems identified are speculative on the facts of this appeal. There may, we accept,
be difficulties, in some cases in determining the facts as at a specific date, but that is
not in our view a reason to depart from established principles. And, we bear in mind
that the disclosure by parties may well need to extend beyond the date of the relevant
decision to material which sheds light on the position as at that date.

36. We consider also that if, for example, it was open to a party to show that the
appropriate date for assessing an exemption or the public interest was the date of
hearing, that would complicate appeals significantly, and possibly to the detriment of
those seeking information. We do not, however, accept that there is properly an
analogy with judicial review and the deprecation of “rolling reviews”. In Judicial
Review the court or Tribunal is, in most cases, concerned only with the material
actually before the decision maker and does not make findings of fact. We note also
that the person seeking information can, if there is a change in circumstances, make a
fresh request.

37. Dr Kirkham and Mr Dransfield seek to rely on the operation of sections 12 and 14 of
FOIA as further support for their argument that the ICO’s interpretation of the date at
which the public interest is to be considered is wrong in law.

38. We have, as Dr Kirkham submitted, we should, considered FOIA as a whole. We note
that the general principle is that information held by public authorities should be
disclosed, subject to exemptions. We accept that, as the ICO submits, they are different
in character in that they operate as a balancing exercise to protect public resources.
Both also require evaluations whereas the exemption under section 40 (2) is absolute,
and, it is concerned with the interests not of the public authority but of third parties.

39. Much of the submissions on this point went well beyond the issue identified, and go
to the feasibility of operating both sections, and indeed, insofar as they relate to the
difficulties that arise from the processing data under the GDPR, significantly beyond
the scope of this appeal and the preliminary issue. While it may well be that there is
merit in the system applicable under the law of Victoria, Australia, whereby a data
subject is asked if he wishes to consent to disclosure, it is not a matter on which we can
adjudicate. Whether or not the GDPR can be construed as importing such a
requirement is also out with the scope of the issue under consideration. In any event,
we consider that under the GDPR, consent to the processing of data to the extent of it
being disclosed once and for all, as would be the case if Mr Dransfield’s data were
disclosed under FOIA, would have to comply with the GDPR. Any analysis of whether
consent had been given would inevitably be fact sensitive.

40. That said, we consider that the balancing exercise to be carried out under sections 12
and 14 is different from the exercise undertaken in deciding whether an exemption
applies but their function is different. We note the submission that, in effect, section 14
could have the effect of limiting the effectiveness of appeals if invoked post-decision,
but the same can be said of powers to strike out. It is not a means by which section 40

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(2) can be interpreted. Further, the effectiveness of both section 12 and section 14 and
their objectives would be undermined if they could not be invoked post-decision.

41. Whether the ICO was, as Dr Kirkham submits, not looking after Mr Dransfield’s
interests in not consulting him with regard to the request made, we do not consider
that relevant to the narrow preliminary issue raised here. Any analysis of duties under
the GDPR would, given the nature of the consent which may or may not have been
given prior to the decision is fact-sensitive and requires findings of fact to be made on
evidence presented.

42. There may, as Dr Kirkham submits, be evidential difficulties in determining whether
Mr Dransfield had in fact consented to disclosure prior to the ICO’s decision. But that
is for fact-finding. It may well be that it results in a larger disclosure exercise than
might otherwise have been the case, but that is what the legislation requires.

43. In conclusion, returning to the questions put at [4]:

A: The Tribunal is bound by the reasoning in APPGER and Maurizi to make the
assessment of the public interest at the date of decision.

(2) If so, are there any exceptions to the general rule which may apply on the facts
of this appeal?

A: There are no applicable exceptions, save that the issue of when consent was
given will be in issue as will the issue of whether the processing of Mr
Dransfield’s data by disclosure is contrary to the GDPR

(3) If not, what is the appropriate point for the consideration of the public interest?

A: not applicable

Additional Matters

44. Mr Dransfield has in his submissions on this issue, both in writing and oral, and in the
documents adduced, sought to raise issues about corruption and unlawfulness on the
part of the ICO, the former president of the GRC, and others involved in the hearing.
This is wholly inappropriate and even if supported by relevant evidence, which it is
not, was not a matter within the narrow scope of this hearing. Hearings before the
First-tier Tribunal are not the place for unfounded and unsubstantiated allegations of
fraud and corruption to be made. Mr Dransfield does not assist himself or his
arguments in so doing,

Appeal Reference: EA/2019/0227

Signed Date: 28 February 2022
Promulgation Date 1st March 2022
Upper Tribunal Judge Rintoul
(sitting as a judge of the First-tier Tribunal)

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