Appeal number: EA/2019/0419P
FIRST-TIER TRIBUNAL
GENERAL REGULATORY CHAMBER
INFORMATION RIGHTS
JENNY PERRYMAN Appellant
- and -
THE INFORMATION COMMISSIONER Respondent
TRIBUNAL: JUDGE ALISON MCKENNA
Determined on the papers, the Tribunal sitting in Chambers on 5 & 6 May 2020
© CROWN COPYRIGHT 2020
MODE OF HEARING
1. This determination was conducted by a Judge, sitting alone. The Tribunal was
satisfied that it was appropriate to compose the panel in this way, having regard to
paragraph 6 (a) of the Senior President’s Pilot Practice Direction dated 19 March
20201 and the desirability of determining all cases which are capable of determination
by the most expeditious means possible during the pandemic.
2. The parties and the Tribunal agreed that this matter was suitable for determination
on the papers in accordance with rule 32 Chamber’s Procedure Rules.
3. The Tribunal considered an agreed open bundle of evidence comprising pages 1 to
174, plus additional papers including the Appellant’s final written submissions. It
also considered a closed bundle comprising five folders, amounting to around 1500
pages.
DECISION
4. The appeal is dismissed.
REASONS
Background to Appeal
1. This appeal concerns the Appellant’s request for information under the
Environmental Information Regulations 2004 (“EIRs”)2. Norfolk County Council
planned to install an Energy from Waste Plant, but this plan was cancelled in 2014,
following strong local opposition. It was then made public that the Council had paid
the contractor £33.7 million in compensation for the termination of the contract.
2. The Appellant made a request to Norfolk County Council (“the Council”) on 23
February 2018, in the following terms:
Please provide a copy of all correspondence (including all attachments and
referenced documents) between Norfolk County Council and Defra between
July 1st, 2011 and November 1st, 2011.
3. On 23 May 2018, the Council provided the Appellant with some information
falling within the scope of the request, but redacted parts of it in reliance upon
regulation 12 (3) and regulation 13 (1) of the EIRs.
4. On 13 June 2018, the Council provided the Appellant with some further
information within the scope of her request, but again redacted parts of it in reliance
upon regulation 12 (3) and regulation 13 (1) of the EIRs. The Appellant requested an
internal review of the Council’s decision to redact the disclosed information.
5. On informing the Appellant of the outcome of its internal review on 1 October
2018, the Council confirmed its decision to redact the information, explaining that its
1
https://www.judiciary.uk/publications/pilot-practice-direction-panel-composition-in-the-first-tier-
tribunal-and-the-upper-tribunal/
2
http://www.legislation.gov.uk/uksi/2004/3391/contents/made
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redactions related to the names and contact details of individuals who were not
responsible for policy development or decision-making in relation to the project.
6. The Appellant complained to the Information Commissioner about the
Council’s handling of her request, including its delay in responding to her, and the
redactions it had made to the information she had received.
7. The Respondent issued Decision Notice FS50845050 on 2 October 2019,
upholding the Council’s decision to redact the disclosed information. The
Respondent also found that the Council had breached the relevant time limits in
respect of its disclosure of the requested information and by its delay in responding to
the Appellant’s request for an internal review. No steps were required to be taken.
8. The Decision Notice concluded that:
(a) The information requested was environmental so as to engage the
EIRs as amended by the Data Protection Act 2018;
(b) The redacted information constituted third party personal data
within the meaning of s. 3 (2) of the Data Protection Act 20183 because it
relates to an identified living individual;
(c) The relevant condition engaged was regulation 13 (2A) (a) of the
EIRs, as amended by the Data Protection Act 2018, because the
processing of the redacted data by its disclosure would contravene the
data protection principles as set out in Article 5 GDPR, which requires
personal data to be processed lawfully, fairly and in a transparent manner
in relation to the data subject;
(d) The Appellant’s challenge relates most closely to Lawful processing
under Article 6 (1) (f) GDPR. This permits processing where it is
necessary for the purposes of the legitimate interests of …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…
(e) Article 6 (1) (f) establishes a progressive tri-partite test. In
considering, firstly, the legitimate interest test, it was concluded that there
was a legitimate interest in transparency but that the considerable
information already disclosed had met that legitimate interest. There was a
relatively weak interest in the personal data, which would not add greatly
to the public knowledge of what had occurred;
(f) Having established that there was some (albeit weak) legitimate
interest in the personal data, the Decision Notice moves on to stage two
and a consideration of whether disclosure was necessary. This is stated to
3
http://www.legislation.gov.uk/ukpga/2018/12/enacted
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be a test of reasonable necessity and to involve the consideration of
alternative means;
(g) It was concluded that disclosure of the personal data was not
necessary to meet the legitimate interest in transparency. The chain of
events was completely understandable from the disclosed material and it
is the Council corporately which is accountable, rather than its officials.
An exception has been made for the senior officers, who would expect to
be identified;
(h) Having reached that conclusion on the second limb, it was not
necessary to undertake the balancing exercise envisaged by the third and
final limb of Article 6 (1) (f).
9. The Decision Notice noted that these events took place some time ago and that
some of the named individuals had since left the Council’s employ. Others were said
by the Council to have stated they did not consent to the disclosure of their personal
data. The Decision Notice noted the Council’s claim that certain individuals
previously named in connection with this matter have in the past received abuse and
threats.
Appeal to the Tribunal
10. The Appellant’s Notice of Appeal dated 11 November 2019 raises grounds
relating to an alleged lack of fairness, lack of accuracy, lack of understanding,
repeated use of incorrect assumptions and a reliance on claims and assurances without
asking for evidence by the Information Commissioner’s Office. She complained that
the Decision Notice had inferred that she would herself harass the individuals named,
which she stated to be an unfounded and serious accusation. The Appellant stated that
the outcome she was seeking was disclosure of the redacted information and for the
Commissioner to ensure that the Council took steps to address its non-compliance
with statutory timescales and communications.
11. In her more detailed grounds, made over twelve pages, the Appellant refers to
her other information requests about this matter, other Decision Notices she has
received, and asks the Tribunal to be mindful of matters relating to her other appeals.
She refers to the Council describing her as having made 35 information requests since
2013 (a figure she disputes) and submits that the Council has been deliberately
obstructive in its dealings with her. She appears to suggest that the Information
Commissioner is biased in favour of the Council.
12. The Appellant submits that the Decision Notice is incorrect in referring at
paragraph 1 to her request being for information about a waste incinerator, because
the request with which this particular appeal is concerned was about a PFI funded 25
years £600m+ waste contract. She submits that, when asking for copies of
correspondence, the details of the senders and recipients of that correspondence are a
vital part of the request and that the redaction of these details has made it impossible
to identify those whose actions were deficient and …has prevented the public’s
legitimate interests in transparency and accountability. She submits that the blame
culture that exists within County Hall prevents lessons being learned and mistakes
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being repeated, as such it is a disservice to Norfolk’s population. It is submitted that
the redaction of individuals’ names is preventing Norfolk’s taxpayers pursuing justice
with those responsible for their £34m loss. If, as the Council submitted, the names
redacted are of junior officers, she submits that there is a public interest in knowing
that junior officers were taking very significant decisions. She complained that the
Information Commissioner had accepted the Council’s assertion that individual
Council officers had been harassed, without asking for proof. She argued that
Freedom of Information rights should be given more weight than Data Protection
rights.
13. The Respondent’s Response dated 16 December 2019 maintained the analysis
as set out in the Decision Notice, with reference to legal authorities (which I consider
further below). The suggestion of bias by the Information Commissioner is refuted.
The Respondent acknowledges that legitimate interests may sometimes involve the
disclosure of officials’ names but submits that this is a fact-specific question in which
the balance between those interests and the officials’ own rights must always be
considered.
14. The Respondent identifies and responds to some themes drawn from the
Appellant’s grounds as follows: the Council has disclosed correspondence which
shows the level of seniority at which decisions were taken, so disclosure of the names
of individuals is not necessary to the interest the Appellant describes; the
Commissioner in fact made no finding that the individuals had a reasonable
expectation that their names would not be disclosed, but merely acknowledged the
Council’s submission to this effect; if there were evidence that the officials were in
fact at a higher grade than the Council had suggested, the Commissioner would
reconsider her position; the Commissioner had not misunderstood the nature of the
public interest in transparency as suggested, she had rather concluded that the names
did not add to the public’s ability to scrutinise events as it was possible to undertake
such scrutiny with the benefit of the information which had been disclosed; the
Commissioner had made no finding that the Appellant herself had engaged in the
harassment of Council staff. The Commissioner must consider the impact of
disclosure to the whole world and the extent to which others might be enabled to
harass individuals whose names were disclosed; the Commissioner has considered
this case on its own merits, as will the Tribunal.
15. The Appellant filed a Reply dated January 20, 2020, with attachments including
her Reply in another matter. She also lodged final submissions with attachments.
Together, these submissions comprise 53 pages of closely typed text with no
paragraph numbers, which I have found it rather difficult to follow. I have taken the
approach of considering whether they contain any new arguments which I should
factor into my decision-making and have identified the new points described below. I
note that these submissions include the Appellant’s comments on documents which
she has obtained from the Council and the ICO as a result of FOIA requests and SARs
relating to the investigation of this matter. I also note that she is awaiting a response
to a FOIA request for details of the number of her own FOIA requests. She
comments extensively on her other cases. The Appellant does confirm that There is
nothing in the Commissioner’s response to alter anything in the Grounds of My
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Appeal, I stand by them in their entirety, so I am confident that I have not overlooked
any important change of position as to her pleaded case, although I have not here
mentioned every point she has made.
16. I note that the Appellant has made a new submission, that the information
request was made in February 2018, before the coming into force of the Data
Protection Act 2018, so the law should be considered as it was at the date of her
request. She has also asked the Tribunal to consider whether, if individuals had an
expectation of privacy over five years ago, that still applies. She suggests that they
would not mind their names being disclosed after all this time, and states that she has
thought about contacting them to ask this but has not done so in case it is viewed as
harassment. Her point appears to be that the Council should have asked them and
provided the Information Commissioner with its evidence.
17. I also note that the Appellant disputes the relevance of the legal authorities
relied on by the Respondent. She asks the Tribunal to consider the Upper Tribunal’s
Decision in Corderoy and Others v The Information Commissioner and Others [2018]
AACR 194 at [95], as to the need for the Information Commissioner to obtain
evidence to support the public authority’s case. I refer to this submission below.
18. I have not been assisted by the Appellant’s extensive references to Decisions of
differently constituted panels of the First-tier Tribunal or to the Information
Commissioner’s Decision Notices in other cases, as they have no precedent value,
which I explain below.
The Law
19. The information request in this case fell to be considered under the
Environmental Information Regulations 2004 (“EIRs”).
20. The EIRs define “environmental information” as follows:
“. any information in written...form on –
(a) The state of the elements of the environment, such as air and
atmosphere, water, soil, land, landscape and natural sites…
(b) Factors such as substances, energy, noise, radiation or
waste…emissions, discharges and other releases into the environment,
affecting or likely to affect the elements of the environment referred to in
(a);
(c) Measures (including administrative measures) such as policies,
legislation, plans, programmes, environmental agreements and activities
4
https://www.gov.uk/administrative-appeals-tribunal-decisions/1-corderoy-2-ahmed-v-1-the-
information-commissioner-2-the-attorney-general-s-office-3-the-cabinet-office-2017-ukut-495-aac
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affecting or likely to affect the elements and factors referred to in (a) and
(b) …
(d) …
(e) Cost-benefit and other economic analyses and assumptions used
within the framework of the measures and activities referred to in (c); and
(f) …”
21. Regulation 5 of the EIRs impose a duty on public authorities to disclose such
information, unless an exception applies. The EIRs set out the exceptions to the duty
to disclose environmental information as follows:
Exceptions to the duty to disclose environmental information
12.— (1) Subject to paragraphs (2), (3) and (9), a public authority may refuse to
disclose environmental information requested if—
(a)an exception to disclosure applies under paragraphs (4) or (5); and
(b)in all the circumstances of the case, the public interest in maintaining the
exception outweighs the public interest in disclosing the information.
(2) A public authority shall apply a presumption in favour of disclosure.
(3) To the extent that the information requested includes personal data of which the
applicant is not the data subject, the personal data shall not be disclosed otherwise
than in accordance with regulation 13.
(4) For the purposes of paragraph (1)(a), a public authority may refuse to disclose
information to the extent that—
(a)it does not hold that information when an applicant’s request is received;
(b)the request for information is manifestly unreasonable;
(c)the request for information is formulated in too general a manner and the public
authority has complied with regulation 9;
(d)the request relates to material which is still in the course of completion, to
unfinished documents or to incomplete data; or
(e)the request involves the disclosure of internal communications.
(5) For the purposes of paragraph (1)(a), a public authority may refuse to disclose
information to the extent that its disclosure would adversely affect—
(a)international relations, defence, national security or public safety;
(b)the course of justice, the ability of a person to receive a fair trial or the ability of
a public authority to conduct an inquiry of a criminal or disciplinary nature;
(c)intellectual property rights;
(d)the confidentiality of the proceedings of that or any other public authority where
such confidentiality is provided by law;
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(e)the confidentiality of commercial or industrial information where such
confidentiality is provided by law to protect a legitimate economic interest;
(f)the interests of the person who provided the information where that person—
(i)was not under, and could not have been put under, any legal obligation to supply
it to that or any other public authority;
(ii)did not supply it in circumstances such that that or any other public authority is
entitled apart from these Regulations to disclose it; and
(iii)has not consented to its disclosure; or
(g)the protection of the environment to which the information relates.
(6) For the purposes of paragraph (1), a public authority may respond to a request
by neither confirming nor denying whether such information exists and is held by
the public authority, whether or not it holds such information, if that confirmation
or denial would involve the disclosure of information which would adversely affect
any of the interests referred to in paragraph (5)(a) and would not be in the public
interest under paragraph (1)(b).
(7) For the purposes of a response under paragraph (6), whether information exists
and is held by the public authority is itself the disclosure of information.
(8) For the purposes of paragraph (4)(e), internal communications include
communications between government departments.
(9) To the extent that the environmental information to be disclosed relates to
information on emissions, a public authority shall not be entitled to refuse to
disclose that information under an exception referred to in paragraphs (5)(d) to
(g).
(10) For the purposes of paragraphs (5)(b), (d) and (f), references to a public
authority shall include references to a Scottish public authority.
(11) Nothing in these Regulations shall authorise a refusal to make available any
environmental information contained in or otherwise held with other information
which is withheld by virtue of these Regulations unless it is not reasonably capable
of being separated from the other information for the purpose of making available
that information.
22. Noting that the disputed information in this case is personal data, regulation 12
(3) above provides that it shall not be disclosed otherwise than in accordance with
regulation 13 EIRs.
23. Regulation 13 EIRs was amended by paragraph 307 of schedule 19 to the Data
Protection Act 2018, as follows:
307(1) Regulation 13 (personal data) is amended as follows.
(2) For paragraph (1) substitute—
“(1) To the extent that the information requested includes personal data of
which the applicant is not the data subject, a public authority must not disclose
the personal data if—
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(a)the first condition is satisfied, or
(b)the second or third condition is satisfied and, in all the circumstances of the
case, the public interest in not disclosing the information outweighs the public
interest in disclosing it.”
(3) For paragraph (2) substitute—
“(2A) The first condition is that the disclosure of the information to a member
of the public otherwise than under these Regulations—
(a)would contravene any of the data protection principles, 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.
(2B) The second condition is that the disclosure of the information to a member
of the public otherwise than under these Regulations would contravene—
(a)Article 21 of the GDPR (general processing: right to object to processing),
or
(b)section 99 of the Data Protection Act 2018 (intelligence services processing:
right to object to processing).”
(4) For paragraph (3) substitute—
“(3A) 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,
(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, or
(c)on a request under section 94(1)(b) of that Act (intelligence services
processing: rights of access by the data subject), the information would be
withheld in reliance on a provision of Chapter 6 of Part 4 of that Act.”
(5) Omit paragraph (4).
(6) For paragraph (5) substitute—
“(5A) For the purposes of this regulation a public authority may respond to a
request by neither confirming nor denying whether such information exists and
is held by the public authority, whether or not it holds such information, to the
extent that—
(a)the condition in paragraph (5B) (a) is satisfied, or
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(b)a condition in paragraph (5B) (b) to (e) is satisfied and in all the
circumstances of the case, the public interest in not confirming or denying
whether the information exists outweighs the public interest in doing so.
(5B) The conditions mentioned in paragraph (5A) are—
(a)giving a member of the public the confirmation or denial—
(i)would (apart from these Regulations) 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 would (apart from
these Regulations) contravene Article 21 of the GDPR or section 99 of the Data
Protection Act 2018 (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 paragraph (3A) (a);
(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;
(e)on a request under section 94(1)(a) of that Act (intelligence services
processing: rights of access by the data subject), the information would be
withheld in reliance on a provision of Chapter 6 of Part 4 of that Act.”
(7) After that paragraph insert—
“(6) In determining for the purposes of this regulation 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.”
24. Paragraph 60 of schedule 20 to the Data Protection Act 2018 makes provision
for EIR requests made prior to commencement of that Act but which were responded
to after commencement, as follows:
60(1) This paragraph applies where a request for information was made to a
public authority under the Environmental Information Regulations 2004 (“the
2004 Regulations”) before the relevant time.
(2) To the extent that the request is dealt with after the relevant time, the
amendments of the 2004 Regulations in Schedule 19 to this Act have effect for
the purposes of determining whether the authority deals with the request in
accordance with Parts 2 and 3 of those Regulations.
(3) To the extent that the request was dealt with before the relevant time—
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(a)the amendments of the 2004 Regulations in Schedule 19 to this Act do not
have effect for the purposes of determining whether the authority dealt with the
request in accordance with Parts 2 and 3 of those Regulations, but
(b)the powers of the Commissioner and the Tribunal, on an application or
appeal under the 2000 Act (as applied by the 2004 Regulations), do not include
power to require the authority to take steps which it would not be required to
take in order to comply with Parts 2 and 3 of those Regulations as amended by
Schedule 19 to this Act.
(4) In this paragraph—
“public authority” has the same meaning as in the 2004 Regulations;
“the relevant time” means the time when the amendments of the 2004
Regulations in Schedule 19 to this Act come into force.
25. The powers of the Tribunal in determining this appeal are set out in s.58 of the
Freedom of Information Act, as applied by regulation 18 EIRs, as follows:
“If on an appeal under section 57 the Tribunal considers -
(a) that the notice against which the appeal is brought is not in
accordance with the law, or
(b) to the extent that the notice involved an exercise of discretion by the
Commissioner, that he ought to have exercised his discretion differently,
the Tribunal shall allow the appeal or substitute such other notice as could
have been served by the Commissioner, and in any other case the Tribunal
shall dismiss the appeal.
On such an appeal, the Tribunal may review any finding of fact on which
the notice in question was based.”
26. First-tier Tribunals are bound as a matter of legal precedent by Decisions of the
Upper Tribunal but not by Decisions of differently constituted First-tier Tribunals.
See O'Hanlon v Information Commissioner [2019] UKUT 34 (AAC).5
27. The burden of proof in satisfying the Tribunal that the Commissioner’s Decision
Notice was wrong in law or involved an inappropriate exercise of discretion rests with
the Appellant.
Evidence
28. Neither party relied on witness evidence.
5
https://assets.publishing.service.gov.uk/media/5c7fb354e5274a3f8edc00cf/GIA_1680_2018-00.pdf
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29. The documentary evidence before me comprised the correspondence between
the parties in relation to this information request and the correspondence in respect of
the ICO investigation. I have also received some additional material provided by the
Appellant which concerns another information request and Decision Notice
FER0745063 in which the Appellant was the complainant.
30. I have received the disclosed material in its unredacted form, which I refer to in
a closed annexe to this Decision.
Conclusions
31. I note that the Appellant has raised some general concerns as to the procedural
fairness of the Information Commissioner’s investigation in her Notice of Appeal.
The Upper Tribunal has confirmed that the nature of an appeal against a Decision
Notice is a re-hearing and not a procedural review, and so this Decision is itself
curative of any such difficulty. I have not in any event identified any procedural
unfairness and I have no hesitation in rejecting the Appellant’s allegation of bias by
the Information Commissioner.
32. The Appellant’s Notice of Appeal seeks a remedy in respect of the Council’s
systems for handling information requests. I have no power to grant such a remedy. I
note that the Information Commissioner made clear her findings about breach of the
relevant time limits, and I discern no error in her approach to that issue.
33. My role is to determine the appeal now before me. It has not been consolidated
with the other appeals made by this Appellant and in those circumstances, it is not
appropriate for me to take into account all the details from other cases to which the
Appellant has referred me. I have noted the general picture which emerges of the
Appellant’s keen interest in these matters, but I would advise her to confine her
arguments in each appeal to the specific Decision Notice to which it relates.
34. The Appellant has not disputed that the EIRs are the appropriate regime under
which to consider her request. She has also not disputed that the redacted information
constitutes personal data. It follows that the key issue in this appeal is whether the
Decision Notice correctly applied regulation 13 EIRs (as amended) to the facts of this
case.
35. I must reject the Appellant’s submission that the EIRs should have been applied
to her request on the terms in which they existed at the date she made it. Paragraph
60 of schedule 20 to the Data Protection Act 2018 makes clear that the relevant date is
the date of the public authority’s response to the information request. In this case,
that was the internal review decision of 1 October 2018. This was after the
commencement of the amendments to regulation 13 EIRs on 25 May 2018. I
conclude that the relevant version of regulation 13 EIRs was applied in the Decision
Notice. It does not in any event seem to me that the Decision Notice would have been
different if it had been decided with reference to the old law.
36. The Respondent drew my attention to the Upper Tribunal’s endorsement of the
three-stage test applied by this Decision Notice, in respect of the previous law, in
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Goldsmith International Business School v Information Commissioner and Home
Office [2014] UKUT 563 (AAC)6 at [35] to [42]. This was a reiteration of the
Supreme Court’s judgment in South Lanarkshire Council v The Scottish Information
Commissioner [2013] UKSC 557 at [18]. I reject the Appellant’s submission that these
authorities may be distinguished and conclude that they bind me as a matter of
precedent. I am satisfied that the Decision Notice was correct to adopt this approach
in respect of the new law in 2018.
37. With respect to the Appellant’s reliance on Corderoy and Others v The
Information Commissioner and Others [2018] AACR 19 at [95], I do not consider
that this Upper Tribunal Decision assists her case, as the Decision Notice I am now
considering is not based on findings of fact in relation to disputed issues. The
Appellant is effectively complaining about the Decision Notice’s references to the
Council’s case (as to harassment of staff) and the absence of an evidenced fact-
finding exercise as to the claimed enduring refusal to consent to disclosure of those
person’s whose personal data she seeks - but these are points on which it does not
seem to me that the Information Commissioner was obliged to require evidence
because she did not need to make a finding of fact on these issues in order to reach her
conclusions.
38. In Cox v IC and Home Office [2018] UKUT 119 (AAC)8 Upper Tribunal Judge
Wikeley commented that:
45. Also relevant in the present context is Judge Jacobs’s warning in GR-N v
Information Commissioner and Nursing and Midwifery Council (at paragraph
30) against over-generalised propositions: “is impossible to apply paragraph
6(1) without having regard to the identity of the applicant, the interest pursued
by the request, and the extent to which information is already potentially
available to the public.”
46. Fourth, it follows from the above that the legitimate interests of an
individual requester may, or may not, involve the disclosure of officials’ names
– but that is a context-specific and fact-sensitive question. Such a legitimate
interest cannot be automatically assumed. To revert to a well-worn phrase, it all
depends.
39. Taking a fact-specific approach to the issues in this case, I agree with the
Information Commissioner’s conclusion that the Appellant has not shown it to be
necessary for the personal data of third parties to be disclosed in order to meet the
legitimate interest of transparency and accountability in this case. She has received
what is, by any account, a massive amount of information about the matters which
6
https://www.bailii.org/uk/cases/UKUT/AAC/2014/563.html
7
https://www.supremecourt.uk/cases/docs/uksc-2012-0126-judgment.pdf
8
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concern her, and she is well able to hold the Council to account for its actions by
reference to this material. She has failed to demonstrate that is necessary to disclose
the particular personal data she seeks in order to address her legitimate interest. As
such, she is unable to persuade me that the GDPR protections enjoyed by those
persons whose personal data has been redacted should be overridden to permit
disclosure. This conclusion relies on the application of well-established principles and
does not rely on a finding of fact as to the degree to which any individual has agreed
or not agreed, or whether they might agree, to the disclosure of their personal data.
40. I find no error of law in the Information Commissioner’s Decision Notice nor
any inappropriate exercise of discretion. Accordingly, I now dismiss this appeal.
(Signed)
JUDGE ALISON MCKENNA DATE:11th May 2020
CHAMBER PRESIDENT
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