FOIA Case Law: Balancing Public Disclosure and Data Protection Privacy Rights

Citation: [2023] UKFTT 985 (GRC)
Judgment on


The case of Stephen John Gullick v The Information Commissioner serves as an insightful precedent into the application of the Freedom of Information Act 2000 (FOIA) and its interplay with the Data Protection Act 2018 (DPA) and the UK General Data Protection Regulation (UK GDPR). At the heart of the dispute is the balance of public interest in disclosure against the right to privacy and confidentiality regarding personal data and information provided in confidence.

Key Facts

Stephen John Gullick appealed against the decision of the Information Commissioner regarding a request for information he made to the Cottesmore Parish Council. The request pertained to a letter sent to the Council by solicitors Oldham Marsh Page Flavell which was referenced in a Council meeting. The Commissioner had decided that the Council was entitled to withhold this information under section 40(2) of the FOIA, citing it constituted personal data and that disclosing it would breach data protection principles.

Gullick argued that he was not given a chance to make representations concerning section 40(2) and that his legitimate interests in accessing the information were disregarded. The Information Commissioner maintained that the withheld information indeed qualified as personal data, whose disclosure would not serve a sufficient legitimate public interest to justify breaching the data subject’s privacy rights.

Several legal principles were applied in the adjudication of this case:

1. Section 40(2) of FOIA: This section exempts from disclosure personal data of an individual other than the requester if it would breach any of the data protection principles. The Tribunal found that the withheld information indeed constituted personal data as defined under section 3(2) of the DPA and that disclosing it would breach the data protection principles, rendering the information exempt under section 40(2) FOIA.

2. Legitimate Interest Test: The Tribunal considered the legitimate interest in disclosure. While acknowledging the appellant’s interest in transparency, it found his interest insufficient to override the data subject’s expectation of privacy and concluded that the legitimate interests did not outweigh the rights of the data subject.

3. Data Protection Principles: The Tribunal leaned heavily on data protection principle (a) from Article 5 of the GDPR, which sets that personal data must be “processed lawfully, fairly and in a transparent manner in relation to the data subject”. The Tribunal found that disclosure would be unlawful as it would go against this principle.

4. Public Interest Test: While section 40(2) is an absolute exemption and not subject to a public interest test, the Tribunal nonetheless considered whether there was a public interest in disclosure and concluded that any such interest did not outweigh the interests in maintaining confidentiality.


The First-Tier Tribunal dismissed the appeal. It ruled that:

  • The Information Commissioner correctly applied section 40(2) of the FOIA in the decision notice.
  • The Council is entitled to rely on this exemption, as disclosing the withheld information would be unlawful and in contravention of data protection principles, primarily principle (a) relating to lawful, fair and transparent processing.
  • The appellant’s legitimate interest in the information did not necessitate its disclosure.


The decision in Stephen John Gullick v The Information Commissioner underscores the intricate balance that must be struck between the interest in public disclosure of information and the protection of individual privacy rights under the FOIA and the data protection regime in the UK. Personal data exemptions and potential breaches of data protection principles are valid grounds for withholding information, provided the data subject’s rights to privacy are deemed to outweigh any argued public interest. This case serves as a paramount reference for understanding the absolute nature of the exemption under section 40(2) and the conditions under which it applies.