First-tier Tribunal
(General Regulatory Chamber)
Information Rights
Appeal References: EA/2021/0083P
Determined, by consent, on written evidence and submissions
Considered on the papers on 1 October 2021.
Before
Judge Stephen Cragg Q.C.
Tribunal Members
Ms Susan Wolf
and
Ms Suzanne Cosgrave
Between
A Curtis
Appellant
And
The Information Commissioner
Respondent
DECISION AND REASONS
DECISION
1. The appeal is dismissed.
MODE OF HEARING
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2. The parties and the Tribunal agreed that these matters were 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 of 138 pages, a CLOSED
bundle and additional submissions from both parties.
BACKGROUND
4. On 26 August 2020, the Appellant wrote to his local District Council (the Council) and
requested information in the following terms in relation to the property of one of his
neighbours:-
I would also request that you let me have a copy of their Building Control Plans
submitted to you. This request is made under the Freedom of Information Act 2018.
It is noted that these are not available on the… District Council website.
5. The Council responded on 7 September 2020 and refused to provide the requested
information, citing regulation 13 of the Environmental Information Regulations 2004
(EIR) which refers to personal data. There was an internal review and the Council wrote
to the Appellant on 28 September 2020 stating that it upheld its original position.
THE STATUTORY FRAMEWORK
6. The relevant provisions of the EIR are regulations 5(1), 12(1) to (3) and 13(1) and (2)
EIR:
Regulation 5 Duty to make available environmental information on request
(1) Subject to paragraph (3) and in accordance with paragraphs (2), (4), (5) and (6)
and the remaining provisions of this Part and Part 3 of these Regulations, a public
authority that holds environmental information shall make it available on request.
Regulation 12 Exceptions to the duty to disclose environmental information
(1) Subject to paragraphs (2), (3) and (9), a public authority may refuse to disclose
environmental information requested if—
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(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.
Regulation 13 Personal data
(1) To the extent that the information requested includes personal data of which the
applicant is not the data subject and as respects which either the first or second
condition below is satisfied, a public authority shall not disclose the personal data.
(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..
7. By regulation 2 EIR "the data protection principles" means, materially the principles set
out in Article 5(1) of the General Data Protection Regulation (GDPR).
8. Section 3(2) of the Data Protection Act 2018 (DPA) (as also applied by regulation 2 EIR)
defines personal data as ‘any information relating to an identified or identifiable living
individual’.
9. Materially, Article 5(1)(a) GDPR reads:-
Personal data shall be: (a) processed lawfully, fairly and in a transparent manner
in relation to the data subject (‘lawfulness, fairness and transparency’).
10. 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…
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THE DECISION NOTICE
11. In the decision notice dated 4 March 2021, the Commissioner decided that the withheld
information was personal data:-
19. 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.
20. In the circumstances of this case, having considered the withheld
information, the Commissioner is satisfied that the information relates to the
data subjects. The names and address of the data subjects quite obviously is
information that both relates to and identifies those concerned. There is also
further detailed information in relation to the data subject’s property. This
information therefore falls within the definition of ‘personal data’ in section 3(2)
of the DPA.
12. In relation to the legitimate interests issue in Article 6(1)(f) GDPR the Commissioner
found that the Appellant:-
32 …has valid reasons for requesting sight of the Building Control Plans, as they
are attempting to determine whether the Council has complied with various
building regulations necessary for safety purposes/to prevent damage to their
own property.
33. The Commissioner considers that there may be a wider legitimate interest,
such as transparency about how the Council’s processes are carried out and that
they are adhering to specific regulations. There is also a legitimate interest in the
Council being accountable for its functions.
13. In considering that disclosure would be necessary to meet the legitimate interests the
Commissioner found as follows:-
36. As disclosure under the EIR is disclosure to the world at large, it is rare that
such processing will be necessary to achieve a legitimate interest.
37. In this case, the Commissioner understands that while the Planning
Permission documents have been published (as per normal procedure), the
Building Control Plans have not been. The Commissioner is therefore not aware
that the information would be accessible other than by making a request for
information under the EIR, and she accepts that disclosure under the legislation
would be necessary to meet the legitimate interest in disclosure.
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14. The Commissioner considered carefully whether the legitimate interests of the Appellant
outweighed the ‘fundamental rights and freedoms’ of the data subjects (his neighbours):-
39…In doing so, it is necessary to consider the impact of disclosure. For
example, if the data subject would not reasonably expect that the information
would be disclosed to the public under the FOIA in response to the request, or
if such disclosure would cause unjustified harm, their interests or rights are likely
to override legitimate interests in disclosure.
45. The Commissioner notes that Planning Application documents are made
public as a matter of course... There is no such requirement under the Building
Regulations and as such, the Council does not therefore routinely publish the
information in Building Control files or generally make them available to other
parties.
47. [The Council] also advised that the information relates to the data subject’s
private lives, including work that has been carried out on their personal property
and to disclose this could cause significant distress to them.
51. The Commissioner sees that there is a legitimate public interest in the
building control process to determine that Building Regulations are being
applied properly. At the same time, the Commissioner considers that the
building control process has been introduced with the specific aim of entrusting
the Council to apply the Building Regulations appropriately…
53. The Commissioner also notes that the complainant has referred to the
“Planning and Building Guidance notes”, specifically points 3.22 and 5.1, which
they consider demonstrates why the withheld information should be provided.
Whilst the Commissioner acknowledges the document referred to, it must be
considered alongside the Data Protection Act 2018, when looking to release
information. In this case, the personal data of the data subjects narrowly
outweighs the need for disclosure.
THE APPEAL AND RESPONSE
15. The Appellant’s grounds of appeal are dated 31 March 2021 and essentially argue that
(a) the information is not personal data; (b) if it is then the legitimate interests in
disclosure outweigh the rights and freedoms of the individuals. The following extracts
(with original punctuation etc.) indicate the main points made by the Appellant:-
The decision of the Information Commissioner is perverse. It is not Personal
Data that has been requested as the Commissioner states at paragraph 20 and
elsewhere of its Decision
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The Information Commissioner had been party to the design and publication of
the guidance entitled Planning and Building Control Information Online
Guidance Notes for practitioners (August 2006) in conjunction with Parsol
(copy enclosed).This guidance in the Foreword says:-
The revised guidance in this paper will assist local authorities in publishing
information in a consistent manner and help ensure that their actions are likely
to conform to the statutory requirements of the Data Protection Act 1998 and
Copyright Designs and Patents Act 1988.
The guidance then explains the legal framework and at paragraph 3.18 states the
reasons why the applicant’s names and addresses will be made available in
respect of the Planning Application. Quite understandingly with regard to
Planning applications, at part f) Publishing plans and drawings, at paragraph 3.22
the guidance clearly states;- Compliance with the Data Protection Act is not an
issue here, plans and drawings are not personal data. (My underling)
The guide at paragraph 5.1 explains the reasons for providing information on
building control applications. The Commissioner acknowledges this at
paragraph 53 of its decision but incorrectly comes to the conclusion that this is
personal data and should not be disclosed. This comment however confirms that
this Guidance is still in force. However, the Guide continues to deal with
Building Control applications, and at paragraph 5.2 advises that the general
information will be focused on the property rather than the individual making
the application, and that Personal Data will only be contact details of the
individual making the application, for example email address and telephone
number. These could so easily be redacted if they are included in the plans.
The application is jointly in a partnership by [my neighbours], thus the
application is not by an individual, but a separate legal entity. The Data
protection act only covers individuals.
In addition when [my neighbours] leave the property, the Building Control
documents will be disclosed too, and will be the property of the new owners,
the purloins will be the exact same size, as well as all the other technical building
specifications, and so cannot be construed as Personal Data of [my neighbours],
but solely attributable to the property.
The Commissioners at paragraph 46 allege that the subjects would not expect
their personal information to be disclosed, however I have no interest in any
personal information, and I not requested any, just the Building Control plans
which the guidance clearly states at paragraph 3.22 and paragraph 3 of appendix
2 that they are not personal data.
The Commissioners at paragraph 47 allege that the information relates to the
subject’s private lives, including work carried out on their personal property.
And at paragraph 48 that the Building Control plans are more detailed and
contain more personal data, but fails to state what this personal information is
in either of these instances. What utter nonsense, the size of the purloins needed,
as demanded by the Building Regulations is not personal data!
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The Commissioner at paragraph 51 of its Decision suggests that disclosure could
damage the public trust in the Building Regulation process, I would counter that;
the effects of secrecy and non- disclosure; is creating doubt and mistrust. If
errors, malpractice or even deficient regulation are not dealt with, the risk to
society is far greater than to deny the bringing of any deficiencies to light, one
need just to look at the Grenfell Tower disaster, and its precursor, the Ronan
Point disaster in 1966, as well as many others.
16. In her response the Commissioner supports the decision notice and relies on the decision
of the First Tier Tribunal (FTT) in the case of Abbott v Information Commissioner
EA/2018/0158 (24 January 2019) where building control information was found to be
personal data and disclosure not justified, in which she says that very similar arguments
to those raised by the Appellant were rejected by the Tribunal.
DISCUSSION
17. Although we are not bound by what was decided by the FTT in the Abbott case, we agree
with what was said therein and what follows in relation to whether the information
requested was personal data aligns with the approach in that case. We are also aware that
another FTT appears to have accepted that building control information was personal
data in the case of Durham v Information Commissioner EA/2019/0346 (12 March 2020)
(although in that case it was decided that the information should be disclosed).
18. Thus, we conclude that the information requested in this case is personal data and agree
with the Commissioner’s conclusions on this point. As explained in Abbott and with which
concur:-
21. The withheld information in the Building Control file consists of
information about building works proposed by the owners of the property
and submitted to the Council for inspection and certification under the
Building Regulations. It relates to those individuals because it is about their
plans in relation to their property. It includes information that is obviously
personal in nature (names, addresses and telephone numbers etc.). We find
that all the other information (including information such as measurements,
technical details, results of tests and certificates) also relates to those
individuals. We find that this information about the owners’ property is
biographical in a significant sense. Further, taken with the other information
held on the file, it is clearly possible to identify the owners from this
information. We find that all of the information falls within the definition of
“personal data” and redaction of names would therefore not remove the
“personal data”.
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19. We also need to address the Appellant’s argument that the information is not personal
data because it is in the name of both of his neighbours. In our view this is an
unsustainable argument, and the information is simply the personal data of two
individuals rather than one.
20. Having decided that the information is personal data we must go on to consider whether
the information should be disclosed in any event (as happened in the Durham case
considered below).
21. We accept the Commissioner’s conclusions that the Appellant has valid reasons for
requesting sight of the building control plans, as the Appellant is attempting to determine
whether the Council has complied with various building regulations necessary for safety
purposes/to prevent damage to the Appellant’s own property. However, these valid
reasons are not perhaps as strong as might be considered at first blush. There is the
competing counter interest referred to by the Commissioner at paragraph 51 (above) that
the building control process has been introduced with the specific aim of entrusting the
Council to apply the Building Regulations appropriately, which in turn creates a greater
interest in protecting the integrity of the building consent process and that disclosure
could damage the public trust in the Building Regulations process. We also note that the
Appellant has been told by the Council’s Building Control Manager that "I have… viewed
the roof drainage…I can confirm that the roof drainage, hopper and downpipe appear
adequate and conform to the Part H of the Building Regulations."
22. The Commissioner also found, and we agree, that the information would not be accessible
other than by making a request for information under the EIR, and therefore on balance
we find that that disclosure under the legislation would be necessary to meet the legitimate
interest in disclosure.
23. We thus have to decide whether the legitimate interests of the Appellant outweigh the
‘fundamental rights and freedoms’ of the data subjects (his neighbours).
24. The neighbours would have a reasonable expectation that the documents on the building
control file would not be made public as they had not been informed that their personal
data would be disclosed. Planning application documents are made public as a matter of
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course, and that is well known, but building control documents are not. The building
control information contains detailed information about the neighbours’ property, and
we are of the view that the neighbours have a strong expectation of privacy. The detailed
information on the file is not already in the public domain. Further, the fact that some
information may need to be revealed to a prospective purchaser, as argued by the
Appellant, does not affect an expectation that it would not be published to the world at
large (as is required by the EIR). We find that disclosure would cause an unexpected loss
of privacy relating to the owner’s private property and that this is likely to cause some
distress.
25. Therefore, we agree with the Commissioner that in this case, the legitimate interests in
disclosure do not outweigh the fundamental rights and freedoms of the neighbours such
as to justify disclosure.
26. We note that the ‘Planning and Building Control Information Online’ guidance notes
(August 2006), relied on by the Appellant sets out circumstances in which building
control information can be provided, but point 1.1 of the document states that ‘in doing
so some personal information about individuals will be disclosed’ and so ‘it is important
to comply with the requirements of the Data Protection Act…’. As we have found that
disclosure, in this case, would breach a data protection principle, and not be lawful, it
seems to us that this must trump any guidance which appears elsewhere in the guide.
27. We are also aware that in the Durham case, disclosure was found not to be unlawful. From
that decision it appears that the reason for this was the more general concerns of the
Appellant in that case about compliance with and operation of building regulations
(described at paragraph 24 as ‘a systematic failure to understand and apply building
control correctly’). We would compare that with the more targeted request in the current
case for building control information about a specific neighbouring property from which
individuals could be identified. Thus in Durham the ‘legitimate interests’ were given more
weight by the Tribunal and the ‘fundamental rights and freedoms’ of individuals were less
affected. As the Tribunal in that case said at paragraph 23, these cases are fact sensitive
and so different results can emerge depending on the particular circumstances and the
information sought.
28. For all these reasons this appeal is dismissed.
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Stephen Cragg QC
Judge of the First-tier Tribunal
Date: 19 October 2021
Promulgated: 21 October 2021
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