Appeal number: EA/2020/0126
V1
FIRST-TIER TRIBUNAL
GENERAL REGULATORY CHAMBER
INFORMATION RIGHTS
MICHAEL KEENAN Appellant
- and -
INFORMATION COMMISSIONER First
Respondent
-and-
THE CABINET OFFICE Second
Respondent
Heard at an oral hearing via the cloud video
platform on 15 April 2021
TRIBUNAL: JUDGE LYNN GRIFFIN
TRIBUNAL MEMBER SUZANNE COSGRAVE
TRIBUNAL MEMBER MARION SAUNDERS
Appearances: The Appellant appeared in person.
The First Respondent did not attend and was not represented.
The Second Respondent was represented by Ms J. Thelen,
counsel, instructed by the Government Legal Department.
1
V: video (all remote) with the Appellant joining by telephone
Appeal reference EA/2020/0126
DECISION
1. The appeal is dismissed.
MODE OF HEARING
2. The proceedings were held by the cloud video platform. All parties joined
remotely, the Appellant joined by telephone. There was no objection to this
course and no indication of any issues for the parties that would affect their
participation. The Tribunal was satisfied that it was fair and just to conduct the
hearing in this way.
3. The hearing began at 10.03 and concluded at 12.28. The hearing was
recorded by the clerk via the cloud video platform. Even though the Appellant
had not indicated he required any steps to be taken to facilitate his participation
in the hearing the Tribunal asked him at the beginning of the hearing and the
Appellant said he did not need any steps to be taken.
4. The Information Commissioner had indicated she was not proposing to
participate in the hearing. No direction was made requiring her to do so, see
the case management directions of 10 February 2021 where such a direction
was refused. The Appellant was concerned at her absence because he wanted
to ask questions about the decision notice under appeal. However, the hearing
is not a chance for questions to be asked between the parties. The Information
Commissioner had set out her case in her response and the Appellant was able
to comment on that in his oral submissions. It was in accordance with the
overriding objective to proceed in the absence of the Information
Commissioner or her representative in the circumstances of this case.
5. The Tribunal considered an agreed open bundle of evidence comprising
pages 1 to 169 plus
a. A copy of a letter from the Second Respondent to the Appellant dated
29/12/2020
b. An email from the Appellant of 13 April 2021 at 22:33
c. A written note of the Appellant’s verbal submissions
d.An open skeleton argument from the Second Respondent dated 15
January 2021
e. A bundle of authorities
f. Copies of the case management directions made in the appeal
6. At the start of the hearing the Tribunal raised an issue as regards the
redactions within the open bundle [120, 124-6, 130-32, 134, 136, 138-141, 145-6
2
Appeal reference EA/2020/0126
]. The Appellant’s concern was to achieve transparency. The Second
Respondent argued that the material had been redacted because it was not
relevant. The Appellant responded that the material should be released in
order to determine its relevance and that the appeal may need to be adjourned
to allow that. Ms Thelen, counsel for the Second Respondent, resisted that
submission on the grounds of cost and confirmed she had seen the material and
there was nothing of relevance to the single part of the request that was in issue
in this appeal, in answer to the Tribunal she stated that there was nothing that
would undermine the case for the Respondents and nothing to assist the
Appellant.
7. Having retired to consider the submissions and the over-riding objective,
the Tribunal declined to call for the material, to adjourn the hearing or order
the removal of the redactions. This was because
a. An extension of time had already been refused to challenge the Registrar’s
case management directions in this regard
b. As an independent member of the Bar Ms Thelen has an overriding duty
to the Tribunal as well as the Respondent’s duty of candour. She had
provided her assurance, having seen the material that it was not relevant
to the issues in this appeal, nor anything that would assist the Appellant
c. The context of the redactions within the document is secondary to the
issues that fall to be decided about whether the information sought was
personal data and if its processing by disclosure would be lawful.
d.The Tribunal would keep the issue under review throughout the hearing
and revisit it if required.
8. In the event it was not necessary to revisit the topic.
REASONS
Background to Appeal
9. This case concerns disclosure of the numbers of complaints made about
Government Ministers for ministerial misconduct. The conduct of Ministers is
guided by, amongst other things, the Ministerial Code [“the code”]. The code
is a guidance document for government generally that sets out principles
applicable to ministerial conduct and includes some material about how
government business is conducted. The code should be read with the
overarching duties on Ministers to comply with the law and to observe the
seven Nolan principles of public life.
3
Appeal reference EA/2020/0126
The request
10. On 25 January 2018 the Appellant submitted a request under the Freedom
of Information Act 2000 [FOIA] to the Second Respondent for information [61],
the request had four parts as follows, although not numbered in the original
we have numbered each question for clarity,
1) “How many Ministerial misconduct complaints did the UK
government receive for each of the following years 2012, 2013, 201
4, 2015, 2016 & 2017?
2) Please provide a breakdown of how many complaints were made
against each named minister for each of the following years
2012, 2013, 2014, 2015, 2016 & 2017?
3) How many ministerial misconduct complaints did the UK govern
ment investigate for each of the following years 2012, 2013, 2014,
2015, 2016 & 2017?
4) How many ministerail (sic)misconduct complaints did the UK
government uphold for each of the following years 2012, 2013,
2014, 2015, 2016 & 2017?”
11. On 19 February 2018, the Cabinet Office responded that the information
was not held centrally and maintained that position on internal review by
letter on 2 May 2018 [63,68,149].
12. This appeal concerns the third decision notice by the Information
Commissioner as regards the Appellant’s request for information above. In
November 2018 the First Respondent decided that the Cabinet Office did hold
the information requested, see decision FS50736559 [70]. Then, after a further
response from the Cabinet Office of 12 December 2018 [78] the Information
Commissioner decided in March 2019, reference FS50810878 [82], that the
Second Respondent could not rely on the cost of compliance, s12 FOIA, to
refuse to provide the information requested.
13. Thus on 5 June 20192 the Second Respondent sent the Appellant
information in response to the first and third requests in tabular form and
referred him to information that was publicly available in relation to the
question 4 stating that this part of the request engaged s21 FOIA. As regards
the second question the Cabinet Office relied on s40(2) FOIA to withhold the
information[94].
2
Stated to be 6 June 2019 in para 11 of the decision notice, see page 94 of the bundle
4
Appeal reference EA/2020/0126
14. The Appellant complained to the Information Commissioner on 6 June
2019 and in due course on 3 March 2020 the decision notice that is the subject
of this appeal, reference FS50849464, was issued [1] to determine 3 issues as
follows
a. Whether the Cabinet Office was entitled to rely on section 40(2) FOIA to
withhold the information falling within the scope of request two.
b. Whether the Cabinet Office had correctly interpreted request 3 in light of
the responses to requests 1 and 3 being the same information.
c. Whether the Cabinet Office was entitled to rely on section 21 FOIA to
refuse to provide the information falling within the scope of request 4.
15. The Commissioner’s decision was that the Cabinet Office was entitled to
rely on section 40(2) to withhold the information within the scope of question
two, did not hold any further information within the scope of question three
and was not entitled to rely on section 21 in relation to question four of his
original request (para 10 above).
16. The Cabinet Office was required to disclose the information withheld
under s21 within 35 calendar days. They did so on 7 April 2020 [98] setting
out the number of upheld complaints where the Prime Minister has found
that a Minister breached the code for each of the years 2012 to 2018 inclusive
and providing hyperlinks to other information.
17. The Appellant was not satisfied with the decision notice from the
Information Commissioner and appealed to the Tribunal.
Appeal to the Tribunal
18. The Appellant’s Notices of Appeal dated 18 & 28 March 20203 [18,23] set
out his reasons for appealing in the following terms
“IN THE INTEREST OF TRANSPARENCY & ACCOUNABILITY (sic) THE
CABINET OFFICE HAVE DISCLOSED THE TOTAL NUMBER OF
MINISTERIAL MISCONDUCT COMPLAINTS FOR EACH YEAR.
HOWEVER, THEY HAVE ABSURDLY HIDDEN BEHIND THE DATA
PROTECTION ACT TO REFUSE TO DISCLOSE THE NUMBER OF
COMPLAINTS AGAINST EACH MINISTER THEREFORE, I CLAIM THAT IT IS
IN THE PUBLIC INTEREST OF TRANSPARENCY & ACCOUNTABILITY THAT
THIS INFORMATION SHOULD BE DISCLOSED TO THE PUBLIC AS IN THE
CASE OF MINISTER PRITI PATEL WHO HAS RECEIVED MANY
3
There are two Notices of Appeal one dated 18 March 2020 on a permission to appeal to the
Upper Tribunal form the other 28 March 2020 submitted on the First Tier Tribunal form, the grounds of
appeal are the same
5
Appeal reference EA/2020/0126
MINISTERIAL MISCONDUCT COMPLAINTS FOR BULLYING CIVIL
SERVANTS OUT OF THEIR JOBS.”
19. The outcome he was seeking was the “truth about the number of
ministerial misconduct complaints against each government minister” [24]. In
support of his appeal the Appellant sent copies of complaints he had made in
relation to ministerial misconduct.
20. The Commissioner’s Response dated 29 July 2020 maintains her analysis
as set out in the Decision Notice and she resists the appeal.
21. The Cabinet Office’s Response dated 11 August 2020 supports the
Commissioner’s submissions on the applicable law, the approach to be taken
and disputes the grounds of appeal.
22. The issue for the Tribunal to determine in this case relates to the second
request for numerical information as follows
Please provide a breakdown of how many complaints were made against each
named minister for each of the following years 2012, 2013, 2014, 2015, 2016 &
2017?
23. The Appellant appealed on the basis that it was in the public interest of
transparency and accountability that the numerical information requested in
his second request should be disclosed.
The Law
24. Section 1(1) FOIA states that any person making a request for information
to a public authority is entitled to be informed in writing by the public authority
whether it holds information relevant to their request, and if so, to have that
information communicated to them, subject to any procedural sections or
exemptions that may apply.
25. Section 40(2) FOIA provides that information is exempt from disclosure if
it is the personal data of an individual other than the requester plus one of the
conditions listed in section 40(3A), (3B) or 40(4A) is satisfied. The relevant
condition in this case is contained in section 40(3A)(a), as amended, which
applies where the disclosure of the information to any member of the public
would contravene any of the principles relating to the processing of personal
data as set out in Article 5 of the GDPR.
26. The first question to determine is whether the withheld information
constitutes personal data as defined by the Data Protection Act 2018 [DPA18].
If it is not personal data, then section 40 FOIA cannot apply.
6
Appeal reference EA/2020/0126
27. If satisfied that the requested information is personal data the second
question is whether disclosure of that data would breach any of the Data
Protection principles.
28. Section 3(2) DPA18 defines personal data as “any information relating to
an identified or identifiable living individual”. It is well established that
information will relate to a person where it is about them, linked to them, has
biographical significance for them, is used to inform decisions affecting the
individual or has them as its main focus.
29. Article 5(1)(a) GDPR sets out that “Personal data shall be processed lawfully,
fairly and in a transparent manner in relation to the data subjects.” Processing will
include when data is disclosed in response to a request under FOIA, see s3(4)(d)
DPA18. Thus, the information can only be disclosed if to do so would be lawful,
fair and transparent.
30. Lawful processing not only includes the application of the general law but
the application of one of the lawful bases within article 6(1) GDPR.
31. Article 6(1)(f) GDPR states “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.” The article also states that it shall not apply to processing carried out
by public authorities in the performance of their tasks but s40(8) FOIA, as
amended, provides that when determining whether the requirement of article
5(1)(a) would be contravened by disclosure of information the decision maker
does not have regard to that disapplication.
32. When considering the application of Article 6(1)(f) GDPR in this context
the Tribunal needs to consider a three part test as follows
a. Legitimate interest test: Whether a legitimate interest is being pursued in
the request for information;
b. Necessity test: Whether disclosure of the information is necessary to meet
the legitimate interest in question;
c. Balancing test: Whether the above interests override the legitimate
interest(s) or fundamental rights and freedoms of the data subject. The
test of ‘necessity’ must be met before the balancing test is applied.
33. This approach is consistent with the Upper Tribunal cases of
• Goldsmith International Business School v Information
Commissioner and Home Office [2014] UKUT 563 (AAC) that
restates the Supreme Court’s approach in South Lanarkshire
7
Appeal reference EA/2020/0126
Council v The Scottish Information Commissioner [2013] UKSC 55,
1 WLR 2421
• Glenda Rodriguez-Noza v Information Commissioner and
Nursing and Midwifery Council GIA/0433/2014,
• Information Commissioner v Colleen Foster and Nursing and
Midwifery Council GIA/1626/2014
• Information Commissioner v Halpin GIA/2288/2018 [2019] UKUT
29 (AAC)
These authorities are binding on us as to the approach we should take to
the issues arising in the appeal.
34. Necessary means that the interference with the data subject’s rights as a
result of the disclosure must be proportionate and “the least intrusive means of
achieving the legitimate aim in question.” The test is of reasonable necessity to
meet a pressing social need, see South Lanarkshire Council v The Scottish
Information Commissioner, per Baroness Hale at paragraph 27.
35. The powers of the Tribunal in determining this appeal are set out in s.58
of FOIA, 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.”
36. We note that the burden of proof in satisfying the Tribunal that the
Commissioner’s decision was wrong in law or involved an inappropriate
exercise of discretion rests with the Appellant.
Evidence
37. The evidence was primarily provided in the form of documents in the
bundle and under separate cover, see above. In addition the Tribunal heard
oral evidence from Ms Helen Ewen, Director of Honours and Information at
8
Appeal reference EA/2020/0126
the Cabinet Office since September 2019 who confirmed that her witness
statement [148] was true and accurate.
38. The Tribunal accepted Ms Ewen’s evidence about the different ways
complaints are handled as follows
20.
Complaints or concerns that a Minister has not acted in accordance with the
Code may be raised in a number of ways (from a number of sources, including
within government) and to a number of parties, including the Minister
themselves, the Minister’s department, the Prime Minister and/or the Cabinet
Office. Not all complaints or concerns are passed to the Cabinet Office. The
Ministerial Code sets out that “Ministers are personally responsible for
deciding how to act and conduct themselves in the light of the Code and for
justifying their actions and conduct to Parliament and the public.” When a
complaint is received by the Cabinet Office it is reviewed. On that initial
review, it will be clear that some complaints do not relate to the Code. Some
complaints may require further assessment in order to determine whether or
not the Code is engaged. The level of assessment that each complaint receives
will depend on the nature of the complaint.
21. Allegations that the Code has been breached may be reported to the Prime
Minister if they are sufficiently serious however some potential breaches may
already be known to the Prime Minister, for example, if the matter is already in
the public domain. If the Prime Minister, having consulted the Cabinet
Secretary, feels the complaint warrants further investigation, he may refer the
complaint to the Independent Adviser on Ministers’ Interests.
22.
Since changes to the Ministerial Code in August 2019, the Prime Minister may
also ask the Cabinet Office to investigate the facts of the case and/or refer the
matter to the Independent Adviser on Ministers’ Interests. The Independent
Adviser would consider the results of the fact finding investigation in order to
establish the facts relating to the allegation and to provide advice to the PM
whether the established facts support, or otherwise, the allegation/s that there
has been a breach of the Code. In response to a question raised, the Prime
Minister can determine that there has been a breach of the Code without
referral to the Independent Adviser.
39. We also noted her evidence about the types of information that are
published in the spirit of transparency and accountability in addition to
parliamentary scrutiny such as
a. the Reports of the Independent Adviser to the Prime Minister on
9
Appeal reference EA/2020/0126
Ministers’ Interests, examples of which are at exhibit HE/1
b. press releases through the Prime Minister’s office
c. summaries of reports by the Cabinet Secretary such as that into
Damien Green in December 2017
d. information related to the resignation of Sir Michael Fallon in
November 2017
e. information related to the loss of confidence in Gavin Williamson
MP by then Prime Minister Theresa May in May 2019.
40. Ms Ewen was cross examined by the Appellant and explained that the
initial response to the request had been that the material was not held by the
Cabinet Office because having considered the scope of the request as it was
believed to be at the time that the information sought was not held centrally.
After the iterative process with the Information Commissioner’s office about
the scope of the request the terms were clarified. Not all complaints about
Ministers go through the Cabinet Office, there is no single track process. There
is no general process for who will determine a complaint as this will depend
on the nature of the case and the circumstances. In answer to the Appellant
explaining to her that he was trying to establish that the information he sought
was not personal information but was public information in the public domain,
Ms Ewen said that some information about complaints made in relation to
Ministers is made available publicly as an important part of the system in
recognition of the public interest in accountability but not all information is
released. The specific information requested by the Appellant was not placed
in the public domain.
41. We found Ms Ewen to be a truthful and accurate witness, we do not accept
the Appellant’s criticism of her evidence as being non-specific or vague.
Neither do we accept his assertions made without evidential foundation, but
based on his interpretation of published material, of some form of cover-up.
Submissions
42. The Appellant submits that the information he seeks is not personal data.
He points to the previous release of information by the government in cases
such as that involving the Rt Hon Priti Patel MP and Rt Hon Damien Green
MP, to demonstrate that a “precedent” has been set under FOIA and due to the
fact that government Ministers are public figures.
43. Both Respondents submit that the numerical information requested
amounts to personal data. The request is for a specific data set not comparable
to the previous examples cited by the Appellant.
44. All parties are agreed that there is a legitimate interest in transparency
and accountability and that the disclosure of the numerical information
10
Appeal reference EA/2020/0126
requested in response to the Appellant’s request would meet the first part of
three stage test. The Tribunal agrees.
45. The Appellant provided a written note of his submissions to which he
added in oral argument. Not all of his submissions were relevant to the issue
before the Tribunal. In summary, he submits that disclosure is necessary and
the balance should fall in favour of disclosure because
a. It will prove that the Second Respondent has been ignoring
and/or covering up ministerial misconduct complaints he has made,
which they dispute.
b. It will reveal which Ministers repeatedly breach the code.
c. It is consistent with the disclosures made in previous cases which
have “set a precedent” under FOIA
46. The Respondents suggest that neither the second nor third stage of the
test should be resolved in favour of disclosure. They submit that disclosure of
the numerical information is not necessary to meet the legitimate interests of
transparency and accountability because
a. it is limited to a figure of complaints made which would be
incomplete, as it would not include complaints that were not dealt
with by the Cabinet Office,
b. that number is not a reliable indicator of there having been an
actual breach of the ministerial code,
c. the number is not indicative of the substance of the complaint, or
its severity on a spectrum ranging from vexatious complaints to the
most heinous transgressions of the code,
d. all complaints whether upheld or not would be included in the
numerical information indiscriminately,
e. the request does not distinguish between those still serving in
“front-line” politics and those that no longer have that role where
there would be less public interest in holding them to account for
historic acts.
47. The Respondents contrast the limited ways in which disclosure would
further the legitimate interests of accountability and transparency with the
other ways in which those interests are met to support their contention that the
legitimate interests can be met by less intrusive means
a. Publication of the outcome of complaints of serious breaches of
the Code which have been upheld. [Decision Notice ¶42]
11
Appeal reference EA/2020/0126
b. Information in the public domain which addresses complaints if
the Prime Minister has lost confidence in a Minister due to their
conduct as judged against the Code. [Decision Notice ¶43]
c. It is for Ministers justify their actions and conduct to Parliament
and the public, and where the Minister successfully does so there
may be no investigation
48. The Respondents submit that even if the necessity test is met the
processing is not warranted by reason of the prejudice to the rights of the data
subjects, being the minister who are the subjects of the complaints. They submit
that while Ministers have an expectation that their conduct will be scrutinised,
they continue to have a reasonable expectation that some personal data should
not be disclosed and should remain confidential. In this case it is suggested that
a minister would not expect inaccurate, incomplete or misleading information
to be disclosed and that this could lead to unfairness due to targeting of those
individuals and/or reputational damage.
49. The Appellant made an oral reply to the submissions made on behalf of
the Second Respondent by Ms Thelen. He repeated that previous disclosures
meant that a precedent was set and the information requested could not
amount to personal data and submitted that in any event the disclosure sought
would not damage Ministers in any way. He closed by submitting that it would
be unjust to treat the data set he requested as different and that openness and
transparency required the information was disclosed.
Analysis and Decision
50. The Cabinet Office relies on the qualified exemption contained in s. 40(2)
FOIA. The Tribunal must therefore form a conclusion on the application of
s40(2) to the information requested by Mr Keenan.
51. We first asked ourselves whether the information requested would
amount to personal data. As the request is for the names of Ministers and the
number of complaints made against them in the given years, the Tribunal is
satisfied that the withheld information both identifies and relates to the specific
Ministers within the scope of the request.
52. Every request under FOIA must be considered on its own terms and the
earlier publication of information in relation to certain complaints will not form
any binding precedent in relation to the nature of a different and specific data
set. The fact that the information relates to public figures does not make it any
less their personal data.
53. We find that the information requested falls within the definition of
‘personal data’ as set out in section 3(2) DPA18.
12
Appeal reference EA/2020/0126
54. However, this is not the end of the matter and we went on to consider if
disclosure of the information would contravene any of the DP principles.
55. We considered the second and third stages of the three stage test, there
being no dispute about the existence of a legitimate interest being pursued in
the request for information. For the sake of completeness we agree that the
legitimate interest has been correctly identified as the interest in accountability
and transparency.
56. We find that the Appellant had a legitimate interest in transparency and
holding Ministers to account as recognised in paragraphs 37 to 40 of the
Information Commissioner’s decision notice, for the purposes of Article 6(1)(f)
GDPR.
57. We then considered the necessity test and asked ourselves whether
disclosure of the information requested is necessary to meet the legitimate
interest in question. We concluded that it was not necessary because
a. Disclosure would not prove anything about the way that the
Second Respondent has been handling ministerial misconduct
complaints made by the Appellant
b. The data would not reveal which Ministers repeatedly breach the
code, only how many complaints were made and not whether those
complaints had any substance or how they were resolved. All
complaints whether upheld or not would be included in the
numerical information indiscriminately. Thus, the number of
complaints made is not a reliable indicator of there having been an
actual breach of the ministerial code, still less its severity.
c. The request must be considered on its own terms and it is not
relevant to the question of necessity to consider whether the
approach is consistent with any disclosures made in previous cases.
d. The numerical information requested would be incomplete,
because it would not include complaints that were not dealt with by
the Cabinet Office.
e. The request does not distinguish between those still serving in
“front-line” politics and those that no longer have that role where
there would be less public interest in holding them to account for
historic acts.
58. Further, we consider that there is no pressing social need for the
information requested to be disclosed in the light of the other information that
is already published that meets the legitimate interest in transparency and
accountability. We accept the Respondent’s submissions that the legitimate
interests can be met by less intrusive means and that it was not necessary for
13
Appeal reference EA/2020/0126
the requested information to be disclosed to meet the legitimate interests
because the information would not provide any effective scrutiny.
59. We find that disclosure of the information requested is not necessary to
meet the legitimate interest of accountability and transparency.
60. In the light of our decision on the second stage of the three stage test we
did not proceed to consider the balancing test. The test of ‘necessity’ must be
met before the balancing test is applied.
61. In the course of his submissions the Appellant, who was acting without
representation, made unsubstantiated allegations of dishonesty; we make it
clear that we do not accept those allegations and regard them as misconceived.
Neither do we accept his assertions made without evidential foundation, but
based on the Appellant’s speculative interpretation of published material, of
some form of cover-up being perpetrated by the Cabinet Office or the
Government more widely.
Conclusion
62. For the reasons given, we are satisfied that the Information Commissioner
correctly found that s.40(2) FOIA was engaged and the information requested
in question 2 of the Request was exempt from disclosure. The Decision Notice
was in accordance with law, and there was no exercise of the Information
Commissioner’s discretion that should have been exercised differently.
Date of Decision: 16 September 2021
Lynn Griffin
Tribunal Judge
© CROWN COPYRIGHT 2021
14
Appeal reference EA/2020/0126
15