First-tier Tribunal
(General Regulatory Chamber)
Information Rights
Appeal Reference: EA/2020/0017P
Before
Judge Stephen Cragg Q.C.
Tribunal Members
Marion Saunders
and
Stephen Shaw
Between
Deborah Kol
Appellant
And
The Information Commissioner
Reigate & Banstead Borough Council
Respondents
Determined, by consent, on written evidence and submissions
Considered on the papers on 21 September 2020.
DECISION AND REASONS
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DECISION
1. The appeal is dismissed.
MODE OF HEARING
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 158, together with additional open documents and a closed
bundle.
INTRODUCTION
4. The Appellant wrote to Reigate & Banstead Borough Council (the Council)
on 22 August 2019 and requested the following information: -
1. Verifiable institutional details and dates of the accredited and
professional qualifications of the specified public officers. The
qualifications to be disclosed under the FOIA need only relate to
those that bear relevance to their official role at council and
performance of public duties.
[Redacted name] (Head of Planning)
[Redacted name] (Conservation Officer)
[Redacted name] (Senior Enforcement Officer)
[Redacted name] (Graduate Planning Officer)
2. Description of the continuing professional development training
and courses (if any) that has been made available to the members
of the Planning Department over the past 5 years (2014-2019).
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3. The attendance record (by way of course and date) of the
specified public officers in 1 above on any of the CPD courses
described in 2 above.
5. The Council responded on 3 September 2019 to say that it was withholding
the information under section 40(2) FOIA. Following an internal review,
the Council wrote to the complainant on 2 October 2019 to maintain the
application of section 40(2) FOIA, but the Appellant was referred to some
information already in the public domain about two of the named officers.
6. The Appellant contacted the Commissioner on 10 November 2019 to complain
about the way her request for information had been handled, and specifically
that the Council was incorrect to apply section 40(2) FOIA.
THE LAW AND COMMISSIONER’S DECISION
7. Section 40 (2) FOIA reads as follows: -
(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) (personal information of the applicant], and
(b) the first, second or third condition below is satisfied.
8. Section 3(2) of the DPA 2018 defines personal data as ‘“any information
relating to an identified or identifiable living individual”.
9. The relevant condition (as referred to in s40(2) FOIA) in this case is found in
s40(3A) (a):
(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.
10. Under s40(7) FOIA the relevant data protection principles in this case are to
be found in Article 5(1) of the GDPR. Materially, Article 5(1)(a) reads: -
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Personal data shall be:
(a) processed lawfully, fairly and in a transparent manner in
relation to the data subject (‘lawfulness, fairness and
transparency’).
11. Further, by Article 6(1) GDPR: -
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;
…
(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…
12. In relation to whether the information requested was personal data, the
Commissioner said: -
14. The two main elements of personal data are that the information
must relate to a living person and that the person must be
identifiable.
…
16. Information will relate to a person if it is about them, linked to
them, has biographical significance for them, is used to inform
decisions affecting them or has them as its main focus.
13. The Commissioner decided that the information sought was personal data: -
17. The withheld information represents the qualifications
(including the relevant institutions and dates) and training held by
officers within the Council’s Planning Department. The Council has
elaborated that the training undertaken by officers within the
department is not uniform, but rather, is tailored to the competence
of the individual and the specific requirements of their role, as
identified and organised by the individual and the line manager.
The Council has further elaborated that some training will be
specific to the professional status of the individual (i.e. by their type
of membership within the Royal Town Planning Institute). Due to
these factors, the Council argues that it is not possible to disclose
details about the training in an anonymised manner.
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14. Next the Commissioner considered Article 5(1)(a) of the GDPR which means
that the information can only be disclosed if to do so would be lawful, fair and
transparent. As to lawfulness, the Commissioner considered Article 6(1)(f) of
the GDPR (as set out above). The Commissioner considered the correct
approach to take and said: -
26. …it is necessary to consider the following three-part test: - i.
Legitimate interest test: Whether a legitimate interest is being
pursued in the request for information; ii. Necessity test: Whether
disclosure of the information is necessary to meet the legitimate
interest in question; iii. Balancing test: Whether the above interests
override the legitimate interest(s) or fundamental rights and
freedoms of the data subject.
15. The Commissioner approached the case by recognising a legitimate
interest in ensuring that council officers are appropriately qualified and
trained in order to undertake their roles. She said (para 30), that ‘this is
particularly so in respect of those officers who are involved in planning
decisions, as these may have significant impact on both residents and the
local environment’.
16. The Commissioner considered that ‘‘Necessary’ means more than
desirable but less than indispensable or absolute necessity’ (para 31) and
applied that test to the request. She said that applying the test could also
involve consideration of alternative measures which may make disclosure
of the requested information unnecessary.
17. The Commissioner was told by the Council that it requires proof of
qualifications from would-be employees as part of the recruitment
process, and that training was provided to officers as required. The
Council said that the relevant academic qualifications of two of the officers
(namely the Head of Planning, and the Senior Planning Officer) are
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already in the public domain and had provided the Appellant with that
information.
18. The Commissioner also made reference to the Council’s complaints
process as a way of escalating concern about an officer’s conduct, and then
onwards to the local government ombudsman. Planning decisions could
be appealed to the secretary of state under a statutory scheme. The
Commissioner concluded: -
34. Having considered these factors, it is apparent to the
Commissioner that the professional suitability of individuals is
monitored as part of the recruitment process, and that needs for in-
post training are assessed by line managers; this indicates to the
Commissioner that appropriate processes are in place to ensure
that officers within the department are fully able to undertake the
roles. It is also apparent to the Commissioner that any public
concerns about the conduct or ability of an officer can be escalated
to an independent authority for review. The Commissioner
considers that the Council’s monitoring of qualifications and
training, and the existence of proper processes by which a member
of the public can challenge the actions of individual officers,
addresses the legitimate interest in ensuring that officers are
appropriately qualified and trained for the purpose of their role.
19. The Commissioner noted that she had ‘undertaken a range of decisions in
respect of requests for the qualifications of public authority employees
and has consistently found that the disclosure of such information would
breach data protection law’. In relation to a case cited by the Appellant -
-decision notice FS501469076- where the Commissioner had found that
qualifications of members of the Treasury Solicitor’s department should
be disclosed the Commissioner said: -
36… That decision addressed significantly senior roles
(“...compared with civil servants in general...”) within national
government, and that to undertake those roles individuals needed
to be legally qualified to practice as a solicitor or barrister. The
context of the withheld information in that case, and the distinct
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arguments relating to legitimate interests, were therefore
significantly different.
20. On that basis the Commissioner decided that disclosure was not necessary
to meet the legitimate interest in disclosure, and therefore did not go on to
decide whether the balancing test would require disclosure.
THE APPEAL
21. The Appellant filed an appeal dated 12 January 2020. She disagreed with
the Commissioner’s findings on the ‘necessity point’.
22. She disagreed with the Commissioner’s findings in paragraph 17 of the
decision notice relating to whether the information was personal data and
said that the Commissioner had taken into account irrelevant factors.
23. She thought that the Commissioner had defined ‘necessity’ wrongly and
has made arguments that necessity incorporates the concept of
proportionality.
24. She disagreed with the Commissioner as to whether the Commissioner’s
previous decision notice concerning the treasury solicitor’s department
was relevant to this case.
25. Reading the Appellant’s appeal, it is clear that she is of the view that the
public should be entitled to be told the qualifications of Council officers as
a way of providing comfort that those employed are properly qualified,
and she objects to being referred to the complaints process as an
alternative way to FOIA of pursuing matters. She sees no difference
between the treasury solicitor case and her request as a means of ensuring
public accountability.
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26. The Commissioner has filed a Response in which she argues that the
information in paragraph 17 of the decision notice was relevant to the
decision in relation to personal data. The Commissioner has set out what
she says is the relevant jurisprudence in relation to ‘necessity’ and what it
encompasses. The Commissioner repeats the points made in paragraph
36 of the decision notice in relation to the differences between the treasury
solicitor case and the present appeal.
27. The Commissioner concludes that it is overwhelmingly likely that the
Council holds details of qualifications and training of its employees (and
indeed the Council says it does) and notes the Council has disclosed the
qualifications of the two senior employees which were available in the
public domain. The Commissioner suggested joining the Council as a
party to the appeal if further clarification was required, and this was done,
but the Council has declined to participate further in the appeal.
28. The Appellant has filed a reply dated 3 April to the Commissioner’s
response, in which she makes a further plea for transparency and getting
rid of unnecessary secrecy. A main point she raises again is that the
meaning of ‘necessary’ embodies the concept of ‘proportionality’ and she
cites the case of South Lanarkshire Council v Scottish IC [2013} UKSC 55 in
support. She objects to the Commissioner’s consideration as to whether
there were less intrusive means of meeting the Appellant’s legitimate
aims, and she cites from paragraph 27 of the South Lanarkshire judgment
which the Appellant says contains the ratio of the judgment. She
emphasises again the Commissioner’s approach in the previous treasury
solicitor case.
29. We should note that the Appellant has had a further issue with the
Council, on the basis that it had publicised that she was in dispute with
the Council. The Appellant wanted this Tribunal to deal with that issue as
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well, but I note that Judge Macmillan made a decision on 19 March 2020
that that issue was outside the remit of this appeal, and therefore we have
not considered it.
30. The Appellant has also filed ‘final written submissions’ dated 7 July 2020.
These submissions deal with this further issue and re-iterate many of the
points she has made before. The Appellant makes it clear that she is not in
dispute with the Council over a planning matter, and so the complaints
procedure against any officer is not an appropriate alternative to the
disclosure of the information she has requested.
DISCUSSION AND DECISION
31. This is a case which turns on the issue as to whether the Commissioner
was correct to decide that disclosure was not necessary to meet the
legitimate interest of accountability and transparency in the Council’s
decision-making processes.
32. We should say something about the necessity test. The Appellant relies
on the analysis in paragraph 27 of the South Lanarkshire case. In that
paragraph, Lady Hale says that ‘necessity is well established in
community law as part of the proportionality test’. But as Lady Hale went
on to say in paragraph 27 what that means is that a ‘measure would not
be necessary if the legitimate aim could be achieved by something less’.
Applying that to the context of this case, if the ‘legitimate aim’ of ensuring
that officers are properly qualified and trained that the Appellant seeks
through her FOIA request for personal data can be achieved ‘by something
less’, then disclosure of personal data will not be necessary.
33. In our view, this is the approach that the Commissioner took in the
decision notice. Essentially, the Commissioner accepted that the Council
had recruitment processes and individual training plans in place to ensure
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that officers were properly qualified and trained, and that there were
processes in place for challenging the actions of individual officers. It was
also the case that the qualifications of two of the officers were in the public
domain already.
34. On that basis, ‘something less’ than the disclosure of personal data was
available to meet the Appellant’s legitimate aim and so disclosure was not
‘necessary’. That analysis is straightforward and addresses the statutory
tests in the FOIA and the DPA. The Appellant seems to complain that there
is no consideration of Article 8 of the ECHR in the Commissioner’s
decision (see paragraph 39 of the Appellant’s 3 April 2020 document), but
that is not required when the task of the Commissioner was to apply the
statutory framework in relation to the disclosure of personal data. There
is no argument that the proper application of the tests in FOIA would lead
to anything other than an Article 8 compliant result.
35. Thus, we agree with the approach taken by the Commissioner. However,
when considering the alternatives available it does not seem right to us to
place very much weight at all on the processes for challenging the actions
of individual officers. That does not seem to us to be an alternative means
of ensuring that officers are properly qualified and trained. It is perfectly
possible for a properly trained and qualified officer to be guilty of
misconduct or poor performance, a complaints procedure would not
necessarily be the correct forum for challenging qualifications and
training, and these issues might not even be in issue in a complaint
process.
36. Nonetheless, in our view, even taking the availability of a complaints
process out of the equation, in our view the Council’s processes of
recruitment and individual training, when coupled with the availability
of the qualification of the two senior officers enquired about are sufficient
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to meet the Appellant’s legitimate interests as set out above. On that basis
we agree with the Commissioner on this issue and find that the disclosure
of personal data is not necessary for the purposes of FOIA and that the
exemption in s40(2) FOIA is rightly relied upon by the Council. Having
reached that conclusion, we do not need to go on to consider a balancing
exercise between the legitimate interests and the rights of those whose
personal data is in issue.
37. We should say something about the ‘treasury solicitor case’, as it is
referred to on a number of occasions by the Appellant. We note that the
Commissioner is not bound, in this case, by any conclusions reached in a
previous decision notice, and neither is this Tribunal.
38. In decision notice number FS50146907 dated 23 March 2010, the
Commissioner decided that s40(2) FOIA did not prevent the disclosure of
the identities, contact details, areas of work, branch or profession and date
of qualification of all lawyers in the Treasury Solicitor’s Department
(TSol).
39. In that case the Commissioner decided that as the lawyers concerned were
senior officers then disclosure of their personal information would not be
unfair. There was a legitimate interest in the TSol being open and
transparent in the public knowing that TSol lawyers were qualified to
perform their roles. The Commissioner considered that disclosure was
necessary to achieve that aim, and that disclosure would not lead to
unwarranted interference with the rights of the individuals concerned.
40. In the decision notice in the present case the Commissioner addressed that
previous decision in terms set out above, and said that it involved
‘significantly senior roles (“...compared with civil servants in general...”)
within national government, and that to undertake those roles individuals
needed to be legally qualified to practice as a solicitor or barrister’. That
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may be one difference with the present case. We also note that in the TSol
case, the Commissioner gave no detailed consideration as to whether
disclosure was necessary, simply stating that this was the view of the
Commissioner. Significantly, it seems to us, the Commissioner does not
seem to have considered whether there were any less intrusive measures
for meeting the legitimate aim (for example, considering whether the TSol
required legal qualifications as part of the recruitment process). In the
current case, the Commissioner has given that issue further consideration
(perhaps in the light of more recent case law such as the South Lanarkshire
case) and concluded that disclosure is not necessary.
41. The Commissioner is entitled to take a different approach to that taken in
2010. In our view to do so, and to reach the conclusions she has done, does
not reveal an error of law.
CONCLUSION
42. For the reasons set out above we are satisfied that that the Council was
entitled to rely on s40(2) FOIA to withhold the information and the
Commissioner’s decision notice in upholding that entitlement does not
reveal an error of law.
43. Therefore, this appeal is dismissed.
Stephen Cragg QC
Judge of the First-tier Tribunal
Date: 6 October 2020.
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