Council was entitled not to confirm or deny whether it held information requested via FOI by ex-Leader, Tribunal rules

Castle Point Borough Council was entitled not to confirm or deny whether it held information requested by a former leader via the Freedom of Information Act 2000 (FOIA), the First Tier Tribunal has concluded.

The decision came after the tribunal found that the former leader had background information that would allow him to work out whether disciplinary hearings had taken place against identifiable council officers.

The person behind the appeal was the former leader of the council and had served as an elected member for more than a decade before losing his seat in the May 2022 elections.

In September 2022, he requested information relating to any meetings held at the council between two specific dates the previous month.

The request asked for the agendas and minutes of the meetings, as well as any subject titles of any reports considered at the meetings.

However, the council responded by citing section 40(5B)(a)(i) of FOIA and refusing to confirm or deny whether the requested information was held.

Section 40(5B) of FOIA provides:

"The duty to confirm or deny does not arise in relation to other information if or to the extent that any of the following applies—

(a) giving a member of the public the confirmation or denial that would have to be given to comply with section 1(1)(a)—

(i) would (apart from this Act) contravene any of the data protection principles…".

According to the council, by virtue of his position as the former council leader, the requester would be able to work out whether or not disciplinary proceedings had been instigated against specific, identifiable officers of the council.

It found that the "motivated intruder" test applied – from the perspective of a "determined person with a particular reason to want to identify the individual" – and that, accordingly, it was necessary to consider that person's background or prior knowledge.

The appellant then complained to the Information Commissioner about the council's position.

However, the Commissioner also concluded that the council was entitled to rely on 40(5B) of FOIA.

It agreed with the council's argument concerning the council leader's ability to infer personal information based on the request.

The former council leader then appealed to the First-Tier Tribunal on the following grounds:

• much of the requested information could be disclosed without disclosing any personal information;
• the requested information was information which the council was required by law (the Local Government Act 1972 and associated legislation) to have published and made available for a specified period in any event;
• it was therefore lawful to make disclosure of personal data in accordance with Article 6(1)(c) of the UK GDPR;
• not only was it lawful to make disclosure, but the council was in breach of its statutory obligations elsewhere by not supplying the relevant information.

The First-Tier Tribunal ultimately dismissed the appeal after finding that the appellant would have been able to identify relevant individuals based on the information requested, which would lead to a breach of personal data.

It concluded that the appellant had "particular knowledge" being a former leader of the Council" and that the 'motivated intruder' test was "easily satisfied", as a result.

The FTT accepted that the request did not expressly refer to information about disciplinary proceedings relating to officers of the council.

However, the tribunal noted that the appellant would have background knowledge of when disciplinary proceedings would likely take place and when they were likely to be subsequently reported to relevant committees.

"This would mean he could ascertain whether or not disciplinary proceedings had been instigated against individual officers of the Council," it noted.

Given this, the tribunal found that the requested information comprised 'personal data' and that the application of section 40(5B) was not precluded in respect of the request and that that section was therefore capable of being engaged.

The FTT went on to find that the public interest in maintaining the exclusion of the duty to inform [the duty to confirm whether or not it holds information which is requested] outweighed the public interest in disclosing whether the council held the requested information.

The appeal was dismissed.

Adam Carey