Appeal number: EA/2021/01007
FIRST-TIER TRIBUNAL
GENERAL REGULATORY CHAMBER
INFORMATION RIGHTS
PATRICK CONHEADY Appellant
- and -
THE INFORMATION COMMISSIONER Respondent
Before:
JUDGE ALISON MCKENNA
TRIBUNAL MEMBER SUSAN WOLF
TRIBUNAL MEMBER JO MURPHY
Determined on the papers, the Tribunal sitting in Chambers
on 17 December 2021
© CROWN COPYRIGHT 2021
DECISION
The appeal is allowed in part. The requested information is exempt from
disclosure under s. 40 (2) FOIA 2000.
The requested information may be disclosed in a redacted form.
The redacted passage on page E212 of the open bundle is amended to
read as follows:
“one…..under the age of 14 years…at…”
REASONS
Mode of Hearing
1. The parties and the Tribunal agreed that this matter was suitable for determination
on the papers in accordance with rule 32 Chamber’s Procedure Rules1.
2. The Tribunal considered an agreed open bundle of evidence comprising pages 1 to
217. The withheld information is redacted on page E212 of the open bundle. We
also considered a closed bundle (pages 1-3), containing the unredacted withheld
information. We refer to the contents of closed bundle in a closed annexe to this
Decision.
Background to Appeal
4. The Appellant on 12 April 2020 made a request to The National Archives
(‘TNA’) for information relating to the Metropolitan Police’s dealings with
Gerrard Conheady in 1928. The Appellant is a relative of Gerrard Conheady, and
is researching the family history for the purposes of writing a book. His request
was in the following terms:
I think that our last communication was in March 2015 when you sent me the
releasable aspects of the following file; MEPO 3/34 Gross indecency and
suspected murder of his brother in the Irish Free State on 18 July 1928; warrant
executed in United Kingdom, against Gerrard Conheady, London Mental Home
patient.
Part of the file could not be released in 2015 because it could not be safely
assumed that the person to whom that particular section related was
deceased…your detailed explanation for the non-disclosure contained a
paragraph/sentence which stated and I quote ‘The information will continue to be
withheld until 2019 when this this individual can be considered deceased’ end of
quote…
1
https://www.gov.uk/government/publications/general-regulatory-chamber-tribunal-
procedure-rules
In view of the content of the quoted statement and because it is now the year
2020 i.e. one year past the year to which the undisclosed section of the file could
be withheld I am now requesting that the unreleased section of the file be released
to me as the final part of the file which file I applied to be released under the
Freedom of Information Act 2014.
5. TNA refused to supply the requested information on 27 May 2020, in reliance
upon s. 40(2) of the Freedom of Information Act 2000 (“FOIA”). TNA explained
to the Appellant that the redacted information contains identifying details of the
victim of a sexual assault in 1927. When the Appellant had originally requested
the file in 2014/15, it has been assumed that the victim had been ‘around 14 years
of age’ on the date of the assault. However, this issue had been re-visited in 2018
and it was then noted that in the file, the victim was described as ‘under 14’ and ‘a
child’, but with no age given. It was therefore considered that the victim could
have been as young as one in 1927. The ‘100 year’ rule was therefore re-
calculated so that the file could be opened in 2028 when the individual would be
100 and assumed to be deceased. TNA confirmed its position following an
internal review on 27 August 2020.
6. The Appellant complained to the Information Commissioner on 19 September
2020, in particular that the ‘assumptions relating to the age of the victim are
without foundation’. He states that ‘My research and investigations into the case
have shown that the persons involved in the case were siblings all of who I can
prove to be deceased’.2
7. The Information Commissioner issued Decision Notice IC-72629-T4T4 on 6
April 2021, upholding TNA’s reliance on s. 40(2) FOIA in the circumstances of
this case.
8. The Appellant appealed to the Tribunal on 13 April 2021. He relied on the sole
ground that the Information Commissioner had erred in law by concluding that the
withheld information was the personal data of a living person because he had
supplied to the Information Commissioner (and the Tribunal) copies of the death
certificates of all persons involved in the case.
The Law
9. The duty of a public authority to disclose requested information is set out in s.1
(1) of FOIA. The exemptions to this duty are referred to in section 2 (2) as
follows:
“In respect of any information which is exempt information by virtue of any
provision of Part II, section 1 (1) (b) does not apply if or to the extent that –
(a) the information is exempt information by virtue of a provision conferring
absolute exemption, or
(b) in all the circumstances of the case, the public interest in maintaining the
exemption outweighs the public interest in disclosing the information.”
2
Open bundle page C74.
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10. Where s.40(2) FOIA is engaged, it provides an ‘absolute exemption’ to
disclosure3, so there is no applicable public interest balancing exercise. Section
40(2) FOIA provides that information is exempt from disclosure if it is the
‘personal data’ of an individual other than the requester and where one of the
conditions listed in s. 40 (3A) (3B) or (4A) is satisfied. In this case, the relevant
condition is s. 40 (3A) (a), which provides that where the disclosure of
information would contravene any of the principles relating to the processing of
personal data set out in Article 5 of the General Data Protection Regulation
(‘GDPR’). In these circumstances, the ‘processing’ would be the disclosure of
the requested information by TNA to the Appellant.
11. ‘Personal data’ is defined by s. 3(2) of the Data Protection Act 2018 (‘DPA’)4
as:
“any information relating to an identified or identifiable living individual”.
12. Article 5 (1) (a) GDPR provides that:
‘Personal data shall be processed lawfully, fairly and in a transparent manner
in relation to the data subject’.
13. In order for the processing to be lawful, one of the bases listed in Article 6 (1)
GDPR must apply. If the personal data is ‘special category’ data, it must also
comply with an Article 9 GDPR condition. ‘Special category’ data is data which
concerns (inter alia) the data subject’s health, sex life or sexual orientation.
14. 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.”
15. 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. The relevant standard of proof is the balance of probabilities.
3
Freedom of Information Act 2000 (legislation.gov.uk)
4
During the course of the Appellant’s dealing with TNA the Data Protection Act 1998 was
superseded by the Data Protection Act 2018.
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Submissions and Evidence
16. In the Decision Notice, the Information Commissioner found that the requested
information was exempt from disclosure under s. 40 (2) FOIA as it was the special
category data of a third person and disclosure would be unlawful.
17. The Decision Notice explains at [21] that the information was considered to
constitute ‘personal data’ as the individual may have still been alive at the time of
the information request. At [18] it is explained why the requested information
relates to an identified or identifiable individual, however that paragraph mis-
describes the nature of the data, referring to the ‘age, gender and location’ of the
individual. In fact, the withheld information is the victim’s name, gender and
location only, as the precise age is unknown. The fact that the victim was under
fourteen had already been disclosed to the Appellant in correspondence and is
referred to at [19] of the Decision Notice.
18. The Decision Notice does not explain why the requested information was
considered to constitute ‘special category’ data, merely recording at [30] that she
did so find but did not intend to detail her reasoning on that point. It seems likely
that the identity of the juvenile victim of a sexual assault would have been
regarded by the Information Commissioner as ‘special category’ data as it relates
to that person’s health and sexual life.
19. At [19] the Decision Notice approves TNA’s policy of assuming that an
individual was still living if they had not yet reached 100 and at [21] the
application of that policy in the circumstances of this case.
20. The Appellant’s Notice of Appeal dated 14 April 2021 relied on grounds that
the Appellant considered he knew the identity of the person whose data had been
withheld and that he had supplied copies of death certificates and photographs of
gravestones to the Information Commissioner so that there was no doubt the
person in question was deceased. We understand this to be a submission that the
definition of ‘personal data’ is not met in this case, so the information requested
can lawfully be processed and disclosed.
21. The Respondent’s Response dated 19 May 2021 maintained the analysis as set
out in the Decision Notice. At [32] it is further stated that, having liaised with the
Metropolitan Police and TNS, the Information Commissioner can now confirm
that the data subject whose information is in dispute does not have the surname
‘Conheady’. At [34] it is submitted that the location of the data subject should be
withheld due to the risk of a ‘jigsaw’ identification of that person.
22. The Appellant’s Reply dated 27 May 2021 asks some rhetorical questions of the
Information Commissioner, whom it is alleged has moved the goalposts during
this appeal. At [31] the Appellant acknowledges an error in his own identification
of the victim of the assault, to the extent that he considers he has used her maiden-
name rather than her married name. The Reply emphasised that the Appellant
feels he has been ‘drip-fed’ information which has been conflicting and non-
factual, whereas he submits that his own case is based on reliable evidence that
the data subject is deceased.
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23. The Appellant accepts at [33] of the Reply that the ‘100 year principle’ is a
reasonable one. He does not take issue with the Information Commissioner’s
exposition of the applicable law but submits that it has been mis-applied in this
case. He describes himself as the only person with an interest in the information
he has requested.
Conclusion
24. The key question for the Tribunal in this appeal is whether the withheld
information consists of ‘personal data’ within the definition of that term at [11]
above. We are satisfied that information consisting of a person’s name, gender and
location are in principle ‘personal data’ because they identify that individual or
make them identifiable. We are also satisfied that the withheld information is in
principle ‘special category’ data, because it involves the data subject’s health and
sex life.
25. The statutory definition involves consideration of the question of whether the
data subject is ‘living’. The Information Commissioner had before her (as do we)
evidence of the death of several members of the Conheady family, consisting of
death certificates and photographs of graves. We are grateful to the Appellant for
providing us with this evidence. However, none of the names on the death
certificates and gravestones matches the name of the data subject with whom we
are concerned. The Appellant can be reassured that it is this failure to match the
names that is responsible for the failure of his appeal. It is not that the information
he supplied has been ignored, but that it does not discharge the evidential burden
which rests on him in this appeal.
26. We have no information before us to indicate whether the data subject is alive
or dead. In circumstances where it is unknown whether the data subject is living,
TNA policy is to apply the ‘100 year’ rule, which allows it to release documents at
the date when the data subject would reach 100 and be presumed deceased. In this
case, it is impossible to know precisely when that date will be, but we agree that
the description of the data subject as ‘under the age of 14 years’ in the file means
that they could have been as young as one. In these circumstances, we see no
error in the Decision Notice’s approval of TNA’s decision to withhold the
information until 2028.
27. We agree with TNA and the Information Commissioner that a redacted version
of page E212 of the open bundle should be disclosed. However, we disagree as to
the extent of that redaction. We find that the name, gender and location of the
victim should be redacted, but that the information that the person was ‘under the
age of 14 years’ should be disclosed. This is principally because that information
has already been disclosed in correspondence and in the Decision Notice, but we
also note that the Appellant has been exercised by the varying descriptions of the
victim’s age as ‘around 14’ or ‘under 14’, so we consider that in fairness it be
made clear to him exactly what information about age is given in the file. This
will allow him to be sure of the basis on which the decision was taken that the
victim could have been as young as one. We do not accept his submission that a
one-year-old could not have remembered or indicated that a sexual assault had
taken place or that if they had no memory of it, there would be no reason to keep
it private. We remind the Appellant that disclosure to him would in effect be
disclosure to the world.
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28. For these reasons we now allow the appeal in part and make the substituted
Decision Notice above.
(Signed)
JUDGE ALISON MCKENNA DATE: 23 December 2021
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