First-tier Tribunal
(General Regulatory Chamber)
Information Rights
EA/2019/0378
BETWEEN:
RICHARD PAUL
Appellant
and
THE INFORMATION COMMISSIONER
Respondent
Hearing: Royal Courts of Justice, Belfast on Wednesday 19 February 2020.
Before: Brian Kennedy QC, Marion Saunders and Anne Chafer.
Appearances: For the Appellant: Richard Paul.
Result: Appeal dismissed.
Decision with Reasons
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Introduction:
[1] This decision relates to an appeal brought under section 57 of the Freedom of
Information Act 2000 (“the FOIA”) The appeal is against the decision of the Information
Commissioner (“the Commissioner”) contained in a Decision Notice dated 20 September
2019 (reference FS50861699) which is a matter of public record.
[2] The Tribunal Judge and lay members sat to consider this case at an oral hearing on 19
February 2020.
Factual Background to this Appeal:
[3] Full details of the background to this appeal, the request for information and the
Commissioner’s decision are set out in the Decision Notice. The appeal concerns the
question of whether the Commissioner was correct to determine that the requested
information should not be disclosed as it represented the personal information of a
member of staff employed by the Gambling Commission.
CHRONOLOGY:
5 June 2019 Appellant requests from Gambling Commission (“GC”) information
about the employment arrangements and qualifications of a “betting
specialist” employed by the Commission
20 June 2019 GC, in role of Public Authority answers queries about employment
arrangements but refuses to disclose information about the
qualifications of the individual
2 July 2019 Internal review by GC resulted in request being refused
29 July 2019 Complaint from Appellant to the Information Commissioner
RELEVANT LEGISLATION:
Freedom of Information Act 2000
Section 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.
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(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.
(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 comply with section 1(1)(a) would (apart from this Act) contravene Article 21 of
the GDPR (general processing: right to object to processing);
(c) on a request under Article 15(1) of the GDPR (general processing: right of access
by the data subject) for confirmation of whether personal data is being processed, the
information would be withheld in reliance on a provision listed in subsection (4A)(a);
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(d) on a request under section 45(1)(a) of the Data Protection Act 2018 (law
enforcement processing: right of access by the data subject), the information would be
withheld in reliance on subsection (4) of that section.]
(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 (misapplying
the legitimate interests gateway in relation to public authorities) were omitted.
COMMISSIONER’S DECISION NOTICE:
[4] The Respondent Commissioner was satisfied that the information related to a
specific and identifiable individual, and it had specific biographical significance. It was
therefore plainly personal information. The Respondent Commissioner turned then to
the three-fold test of legitimacy, necessity and balancing. She found that the Appellant
had a legitimate interest, in that he was pursuing a resolution following what he
believed to have been wrongdoing on the part of a bookmaker in changing the terms of
a bet after the fact. However, the individual whose information is being sought is “not in
a public facing, or senior role”, and is not currently in the public domain. As there would
be no reasonable expectation that the information would be publicly available,
disclosure of the information would not be lawful. The Gambling Commission’s refusal
was upheld.
GROUNDS OF APPEAL:
Ground I – Incompetence on the part of public officials
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[5] The Appellant alleged either corruption or incompetence on the part of the individual
whose information he had requested (and who he claimed occupied a much more
senior role than the Gambling Commission alleged) and also two named officers of the
Commissioner.
Ground II – Misconduct by the Gambling Commission
[6] The Appellant alleged that a particular bet that was advertised both online and in the
branches of a particular betting company did not accord with how the bet played out,
and the company changed the terms of the bet after the bets had been placed to the
disadvantage of numerous customers. The Appellant claimed that the Gambling
Commissioner had stated that they had taken the advice of the individual in question
(subject of the request) and that the company had not acted unlawfully.
COMMISSIONER’S RESPONSE:
[7] The Commissioner reaffirmed her reliance on the Decision Notice, and stated that it
was not for her or the Tribunal to determine whether or not Mr Paul’s complaint against
the gambling company was substantiated. The Tribunal’s role is purely to determine
whether the Commissioner was right in law. She also declined the respond to the
Appellant’s “gratuitous aspersions” about her officers.
[8] Regarding the seniority of the employee in question, the Commissioner is satisfied
that the Appellant had overstated the official’s role. It is common for senior officials to
take advice from subordinates without it being a necessary corollary that the advice is
accepted without challenge.
APPELLANT’S REPLY:
[9] The Appellant replied by redoubling his attacks on the Commissioner’s staff
members for alleged incompetence. He clarified that he only wished to know the
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qualifications of the individual insofar as they pertain to the gambling industry and their
position as a ‘gambling expert’. He also claims that no-one with whom he has
communicated in the Gambling Commission has questioned the advice given by the
individual, hence his conviction that their position is more senior than the Commission
says.
HEARING:
[10] The Appellant attended the oral hearing while the Respondent relied upon her
reasoning in the Decision Notice and the written submissions in her Response to the
Grounds of Appeal. The Appellant provided the Tribunal with a detailed and
comprehensive account of the motive for his request and his concern about the lack of
governance and control of gambling and betting in the UK generally and Northern
Ireland in particular. He explained how Gambling Commission (“GC”) has no
jurisdiction in Northern Ireland (“N.I.”). He explained his understandable frustration that
there appears to be no responsible body in a position to deal with his complaints and
concerns in relation to the regulation and control of Gambling in N.I. in particular or
even other parts of the UK as his view is that the GC is ineffective and certainly has
provided him with no assistance or satisfaction relating to his significant and genuine
concerns. The Tribunal found the Appellant a sincere and dedicated citizen with
genuine concerns. We agree with the Respondent that there is a significant public
interest in the Appellants request.
[11] Nevertheless we explained to the Appellant, the comprehensive Response to his
grounds of Appeal by the Respondent and explained in detail how the Respondent had
carefully reasoned the public authority’s reliance on section 40(2) of FOPIA and how it
related to Personal Data in this appeal and in particular how where section 40 is
engaged under the first condition, it is an absolute exemption, so there is no further
public interest balancing exercise. We explained how the Respondent accepted there
was a legitimate public interest in transparency around the advice by a public servant to
a public authority in the exercise of its public functions. We also explained the
importance of the need for the protection of individuals’ personal details when not in a
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senior or public facing role, where that individual would have a reasonable expectation
that their employer would keep their personal data private.
[12] The Tribunal then explained how the Grounds of Appeal failed to address the
specific reasoning in the Decision Notice as set out therein. The Tribunal explained that
we accept and adopt the Respondents reasoning in her impugned Decision Notice. We
also agreed with the suggestion from the Respondent that the grievances, so
understandably aired by the Appellant, are beyond the scope of the Respondent or this
Tribunal. We agree his recourse is elsewhere. We further agreed that a reworded
request could still be made in a way that section 40(2) might not be engaged as it is in
part 4 of his request in this appeal. We explained that FOIA places a duty on the Public
Authority to assist citizens in presenting an effective request.
CONCLUSION:
[13] The Tribunal accept and adopt the reasoning in the Decision Notice and the
Response to the Grounds of Appeal in this case. We also accept that the Appellant is a
genuine and concerned citizen playing a significant role in questioning the Public
Interest in the regulation and control of betting within the UK. We can accept his
genuine cause for concern and the need for some form of inquiry or further regulation
and control of gambling and in particular in Northern Ireland. However in the
circumstances we find the Appellant has failed to identify any error of Law in the
Decision Notice under appeal. No error of Law in the Decision Notice under appeal has
been established and we therefore unanimously dismiss this appeal.
Brian Kennedy QC
Date:24 February 2020
Promulgation date: 6 March 2020
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