Tribunal Upholds Decision to Withhold Information in Macintosh v Information Commissioner Case Under FOIA Exemptions

Citation: [2024] UKFTT 164 (GRC)
Judgment on

Introduction

In the case of Paul Macintosh v Information Commissioner ([2024] UKFTT 164 (GRC)), the First-tier Tribunal (General Regulatory Chamber) was tasked with deciding on an appeal against the Information Commissioner’s upholding of Nottinghamshire County Council’s decision to withhold information requested under the Freedom of Information Act 2000 (FOIA). The withheld information pertained to the Council’s ‘Lorry Watch’ Scheme and was withheld on the grounds of national security and protection of personal data.

Key Facts

Paul Macintosh, the appellant, requested detailed information from the Nottinghamshire County Council regarding why certain reports made under the ‘Lorry Watch’ scheme were not acted upon. The Council initially provided some information but withheld other details invoking sections 24(1) for national security and 40(2) for personal data protection under FOIA.

Macintosh queried the incomplete response leading to further explanation by the Council, still maintaining the information exemptions. After an unsatisfactory response from the Council, Macintosh filed a complaint with the Information Commissioner, who upheld the Council’s decision to withhold information. The appellant then appealed to the First-tier Tribunal.

The Tribunal, led by Judge J K Swaney, analyzed two principal exemptions under FOIA: section 40(2) concerning personal information and section 24(1) regarding national security.

Personal Data (Section 40(2) of FOIA)

The Tribunal ascertains whether the withheld information constitutes personal data. The section 40 exemption is absolute if disclosure would contravene data protection principles. The Tribunal held:

(i) The withheld information is personal data, as it relates to a living individual who can be identified therein. (ii) The legitimate interest in disclosure was negated because the information provided was adequate in transparency terms, and the additional data would not further this interest. (iii) For personal data to be lawfully processed for disclosure under FOIA, it must satisfy the necessity test outlined in Article 6(1)(f) of the UK GDPR. The Tribunal found that no legitimate interest in additional withheld information was identified; thus, no necessity for disclosure existed. (iv) Consequently, disclosure of personal data would not be lawful under UK GDPR and FOIA.

National Security (Section 24(1) of FOIA)

The second exemption relates to national security:

(i) The Tribunal confirmed that the withheld information relates to national security. (ii) While acknowledging some public interest in the disclosure of information, the Tribunal found this interest to be outweighed by the need to safeguard national security.

The Tribunal referred to principles identified by the House of Lords in SSHD v Rehman [2001] UKHL 47 and applied these principles to the case at hand.

Outcomes

The Tribunal dismissed the appeal on the following grounds:

(i) The information falls under personal data as defined in section 3(2) of the Data Protection Act, and revealing it could identify an individual. (ii) There was no legitimate interest in disclosing the withheld personal data, making it unlawful. (iii) The withheld information concerning national security is justifiably exempt from disclosure as the public interest in maintaining national security outweighs the interest in transparency.

Conclusion

The Tribunal meticulously applied the legal principles concerning FOIA and data protection laws to uphold the exemptions claimed by the Nottinghamshire County Council with respect to both personal data and national security. These findings serve to reinforce the delicate balance that public authorities must maintain between transparency and their duties to protect sensitive information related both to individuals and the sovereignty of the nation.