Donna Clarke v Information Commissioner
[2024] UKFTT 520 (GRC)
Penny Bence v The Information Commissioner
14 October 2024
[2024] UKFTT 903 (GRC)
First-tier Tribunal
A person requested information from Cornwall Council. The Council withheld some, claiming exceptions under environmental information laws. A judge decided the Council was right to keep some things secret (like legal advice and some personal information) but wrong to keep others secret (like land registry details and other non-sensitive information). The Council must now release the information it wrongly withheld.
Key Facts
- •Appeal against Information Commissioner's decision (IC-243711-H9P2) regarding Cornwall Council's withholding of information under the Environmental Information Regulations 2004 (EIR).
- •Appellant: Penny Bence; Respondent: The Information Commissioner.
- •Appeal concerned various withheld documents relating to bollard installation, including communications with the Council's legal department, pre-existing documents, land registry searches, and personal data of third parties.
- •Tribunal's previous decision (31 May 2024) addressed some exceptions; this decision addresses remaining exceptions raised by the Council.
Legal Principles
Right to information is the general rule; exceptions should be interpreted restrictively, balancing public interest in disclosure against interest in refusal.
Office for Communications v Information Commissioner Case C-71/10
EIR exceptions are subject to a public interest test, with a presumption in favour of disclosure (unlike FOIA).
EIR and case law discussion
Definition of personal data under s 3(2) of the Data Protection Act 2018 and the criteria for 'identifiable' individuals.
Data Protection Act 2018 and NHS Business Services Authority v Information Commissioner and Spivak [2021] UKUT 192 (AAC)
Public interest test under EIR requires analysis of specific harm from disclosure, weighing interests in disclosure and withholding.
Export Credits Guarantee Department v Friends of the Earth [2008] EWHC 638 and O’Hanlon v Information Commissioner [2019] UKUT 34
Regulation 6(1)(b) EIR is not a general exception for publicly available information; it only applies to requests for specific formats.
Tribunal's interpretation of Regulation 6(1)(b)
Three-part test for determining legitimate interests under Article 6(1)(f) GDPR: legitimate interest, necessity, and whether overridden by data subject's rights.
Tribunal's application of Article 6(1)(f) GDPR
Outcomes
Appeal allowed in part.
Council correctly withheld some information (legal advice, appellant's personal data, certain third-party personal data) but incorrectly withheld other information (land registry details, some third-party personal data, complaint reference numbers).
Council must disclose land registry details, specified names, complaint reference numbers, and other information.
Council's reliance on Regulation 6(1)(b) and 13 EIR was incorrect in these instances.
Council must respond to part two of appellant's revised request.
Council breached its obligations by failing to respond.
Council entitled to withhold specified personal data of third parties.
Based on application of Article 6(1)(f) GDPR – legitimate interest in withholding outweighs public interest in disclosure.