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First-tier Tribunal (General Regulatory Chamber)
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Williams v Information Commissioner [2025] UKFTT 764 (GRC) (26 June 2025)
URL: http://www.bailii.org/uk/cases/UKFTT/GRC/2025/764.html
Cite as:
[2025] UKFTT 764 (GRC)
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Neutral Citation Number: [2025] UKFTT 764 (GRC) |
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Case Reference: FT/EA/2025/0021 |
First-tier Tribunal
(General Regulatory Chamber)
Information Rights
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Heard by: CVP Heard on: 20 May 2025
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Decision Given On: 26 June 2025 |
B e f o r e :
JUDGE SOPHIE BUCKLEY
TRIBUNAL MEMBER PIETER DE WAAL
TRIBUNAL MEMBER DR AIMEE GASSTON
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Between:
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VAUGHAN WILLIAMS
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Appellant
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- and -
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THE INFORMATION COMMISSIONER
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Respondent
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____________________
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HTML VERSION OF DECISION
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Crown Copyright ©
Decision: The appeal is dismissed.
REASONS
Introduction
- This is an appeal by Mr Williams against the Commissioner's decision notice IC-316832-V7D7 of 18 December 2024 which held that Wanborough Parish Council (the Council) was entitled to rely on section 40(2) (personal information) to withhold the requested information.
- There is no closed annex to this decision.
Factual background
- This request relates to the letter of resignation of a named former Councillor from the Council.
The request for information
- The appellant requested the following information from the Council on 13 June 2024:
Pursuant to the FOI Act please could I request a copy of the resignation letter/email of former Cllr [name redacted].
- On 28 June 2024 the Council relied on section 40(2) to withhold the information.
Decision notice
- The Commissioner's view was that it was clear that the letter both related to and identified the former Parish Councillor because the Councillor was the author of the letter, the content included their name and their reasons for their resignation. He concluded that it was the Councillor's personal data in accordance with the definition in section 3(2) of the DPA.
- The Commissioner held that within the particular Parish, there was a legitimate interest in seeking to understand the reasons for the resignation of a Parish Councillor. The Commissioner considered that the complainant was pursuing a legitimate interest, and that disclosure of the requested information was necessary to meet that legitimate interest. The Commissioner was satisfied that there were no less intrusive means of achieving the legitimate aims identified.
- The Commissioner noted that it was already known that the Councillor had resigned from their position at the Parish Council. He questioned whether disclosing the requested information would add anything of value into the public domain. The Commissioner considered that disclosure of the resignation letter resignation would be likely to cause the former Councillor distress.
- The Commissioner said that he had not been made aware of any good reasons or circumstances which would warrant disclosure given the expectation of privacy. The Commissioner considered that the Councillor would have a reasonable expectation that their letter of resignation would not be disclosed to the whole world in response to a FOIA request.
- The Commissioner noted that it was known that the former Councillor had left their role. The Commissioner accepted there would be a legitimate interest in making public the reasons for resignation if they had an impact on the Parish Council or the public directly, but neither of these were highlighted in the letter. The Commissioner concluded that there was no legitimate reason in knowing personal reasons for resignation. He concluded that the Councillor would have a strong and reasonable expectation that their personal letter would not be disclosed.
- For those reasons the Commissioner concluded that the Council was entitled to rely on section 40(2) FOIA.
Grounds of appeal
- The Grounds of Appeal are, in essence:
a. The Commissioner was wrong to conclude that there was no legitimate public interest in disclosure. The appellant submits that there is a strong public interest in elected officials being accountable for what they do and say. The circumstances of the resignation may well shed light on the dysfunction within the Council.
b. It is unclear if the Commissioner reviewed the resignation letter before making a decision. The Commissioner failed to properly take account of the content of the letter which the appellant understands at least in part touches on the performance and conduct of the council as a whole.
c. The public interest in the content of the letter must outweigh concerns for the former Councillor's feelings.
d. Any purely personal information could be redacted.
e. The Commissioner failed to address the Court of Appeal and Upper Tribunal authorities which the Appellant referred to.
The Commissioner's response
- The Commissioner submits the appellant has misunderstood section 40(2), which is not subject to the public interest balancing test.
- The Commissioner was of the view that section 40(2) applied to the entirety of the letter and it was therefore not possible to provide a redacted version.
- The Commissioner submits that it is not an error of law to fail to refer to the cases referenced by the appellant. In any event the right to a full rehearing on the merits by the First-tier Tribunal cures any alleged procedural defect or breach of natural justice in the Commissioner's investigation.
The appellant's reply
- The appellant agreed with the Commissioner as to the correct legal test.
- The appellant is not certain the entire letter is personal information, but in any event submitted that the public interest weighs in favour of disclosure.
- The appellant relies on the evidence of another Councillor as to the content of the letter. He reiterates his concern that the Commissioner may have been considering a different letter.
- The appellant relies on DH v IC and Bolton Council [2016] UKUT 139 (AAC) and submits that the resignation of an elected official is a resignation from their office and is a matter that is central to that office and is of weighty and legitimate public interest. He submitted that if reasons are of a purely personal nature, such as medical reasons, then it would usually be in order for those reasons to be redacted. However, he argued that where the reasons given for the resignation relate to the performance, conduct and business of the council, the Upper Tribunal's conclusion in DH v IC and Bolton Council is apposite: 'In my judgment, a councillor should expect to be scrutinised as to, and accountable for his actions, insofar as they are relevant to his public office'. He submitted that applies to the Councillor and to the remaining Councillors if their performance is reflected in the resignation letter.
- The appellant noted that there was no evidence of the Councillor's wishes or of any exceptional circumstances that might mean potential distress to him through having his views and comments made public. He submitted that this Councillor was a robust individual not usually reticent about expressing strong views.
- Whatever the merits or correctness of the Councillor's views expressed in the resignation letter, the appellant submitted that there was plainly a public interest in those views being know in that constituency, which must prevail over concerns about the Councillor's feelings.
- The appellant submitted that it would be wrong for the tribunal to have sympathy with the point that the Councillor no longer holds public office, but to the extent that it does, it should consider the content relating to the conduct and performance of the Council and the remaining Councillors.
- The appellant noted the statement by Bean LJ in IAB & ors v SSHD [2024] EWCA Civ 66 that the practice of redacting or anonymising the names of junior officials was 'inimical to open government' and, in the High Court decision in the same case, the statement of Swift LJ that 'when at work, civil servants are not involved in anything that can be described as a private activity, they are exercising public functions.' He submitted that this applies with greater force to elected officials. He submitted that potential embarrassment to a public authority is not a basis for refusing access.
- The appellant submitted that the Commissioner's conclusion that the letter was of a personal nature and lacked any weighty public interest in disclosure was surprising and irrational.
- The appellant raises a concern that the Commissioner and the tribunal may have the wrong resignation letter.
Legal Framework
Personal data
- The relevant parts of section 40 of FOIA provide:
(1) Any information to which a request for information relates is exempt information if it constitutes personal data of which the applicant is the data subject.
(2) Any information to which a request for information relates is also exempt information if –
(a) It constitutes personal data which does not fall within subsection (1), and
(b) either the first, second or the third condition below is satisfied.
(3A) The first condition is that the disclosure of the information to a member of the public otherwise than under this Act -
would contravene any of the data protection principles, or…
- Personal data is defined in section 3 of the Data Protection Act 2018 (DPA):
(2) 'Personal data' means any information relating to an identified or identifiable living individual (subject to subsection (14)(c)).
(3) 'Identifiable living individual' means a living individual who can be identified, directly or indirectly, in particular by reference to—
(a) an identifier such as a name, an identification number, location data or an online identifier, or
(b) one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of the individual.
- The definition of 'personal data' consists of two limbs:
i) Whether the data in question 'relates to' a living individual and
ii) Whether the individual is identified or identifiable, directly or indirectly, from those data.
- The tribunal is assisted in identifying 'personal data' by the cases of Ittahadieh v Cheyne Gardens Ltd [2017] EWCA Civ 121; Durant v FSA [2003] EWCA Civ 1746 and Edem v Information Commissioner [2014] EWCA Civ 92. Although these relate to the previous iteration of the DPA, we conclude the following principles are still of assistance.
- In Durant, Auld LJ, giving the leading judgment said at [28]:
"Mere mention of the data subject in a document held by a data controller does not necessarily amount to his personal data. Whether it does so in any particular instance depends on where it falls in a continuum of relevance or proximity to the data subject as distinct, say, from transactions or matters in which he may have been involved to a greater or lesser degree. It seems to me that there are two notions that may be of assistance. The first is whether the information is biographical in a significant sense, that is, going beyond the recording of the putative data subject's involvement in a matter or an event that has no personal connotations, a life event in respect of which his privacy could not be said to be compromised. The second is one of focus. The information should have the putative data subject as its focus rather than some other person with whom he may have been involved or some transaction or event in which he may have figured or have had an interest, for example, as in this case, an investigation into some other person's or body's conduct that he may have instigated."
- In Edem Moses LJ held that it was not necessary to apply the notions of biographical significance where the information was plainly concerned with or obviously about the individual, approving the following statement in the Information Commissioner's Guidance:
"It is important to remember that it is not always necessary to consider 'biographical significance' to determine whether data is personal data. In many cases data may be personal data simply because its content is such that it is 'obviously about' an individual. Alternatively, data may be personal data because it is clearly 'linked to' an individual because it is about his activities and is processed for the purpose of determining or influencing the way in which that person is treated. You need to consider 'biographical significance' only where information is not 'obviously about' an individual or clearly 'linked to' him."
- The High Court in R (Kelway) v The Upper Tribunal (Administrative Appeals Chamber) & Northumbria Police [2013] EWHC 2575 at paragraph 57 held, whilst acknowledging the Durant test, that a Court should also consider:
"(2) Does the data "relate" to an individual in the sense that it is "about" that individual because of its:
(i) "Content" in referring to the identity, characteristics or behaviour of the individual?
(ii) "Purpose" in being used to determine or influence the way in which the individual is treated or evaluated?
(iii) "Result" in being likely to have an impact on the individual's rights and interests, taking into account all the circumstances surrounding the precise case (the WPO test)?
(3) Are any of the 8 questions provided by the TGN [Commissioner's Technical Guidance Note on personal data] are applicable?
These questions are as follows:
(i) Can a living individual be identified from the data or from the data and other information in the possession of, or likely to come into the possession of, the data controller?
(ii) Does the data 'relate to' the identifiable living individual, whether in personal or family life, or business or profession?
(iii) Is the data 'obviously about' a particular individual?
(iv) Is the data 'linked to' an individual so that it provides particular information about that individual?
(v) Is the data used, or is it to be used, to inform or influence actions or decisions affecting an identifiable individual?
(vi) Does the data have any biographical significance in relation to the individual?
(vii) Does the data focus or concentrate on the individual as its central theme rather than on some other person, or some object, transaction or event?
(viii) Does the date impact or have potential impact on an individual, whether in a personal or family or business or professional capacity (the TGN test)?
Does the data "relate" to the individual including whether it includes an expression of opinion about the individual and/or an indication of the intention of the data controller or any other person in respect of that individual. (the DPA section 1(1) test)?"
- The High Court in Ashley v HMRC [2025] EWHC 134 (KB) held that:
161. …the "relating to" requirement is satisfied where "the information, by reason of its content, purpose or effect, is linked to a particular person" (para 105 above). As the CJEU's test in Nowak indicates, the "content", "purpose" and "effect" of the information are disjunctive ways in which it may be linked to the individual in question. However, in many instances these features are likely to overlap and I accept that the position will be strengthened where a link exists in more than one of these senses. Consistent with the wording of the definition and the purpose of the legislative provisions, the concept of the information being "linked" to the data subject is to be construed in a broad way. However, this concept must have some limitations and I respectfully agree with the view expressed in Durant and in Aven that for these purposes there is a continuum of relevance to the data subject. Accordingly, an indirect or tenuous link at several removes is unlikely to suffice. On the other hand, information that would not, when viewed in isolation meet the definition of "personal data", may do so where it is interlinked with or connected to material that is itself the "personal data" of the relevant individual. In Nowak the applicant's script was plainly his personal data and the examiner's comments appeared in the same document, were heavily interlinked with it and had a direct impact on the applicant. In cases of difficulty or ambiguity, it will be appropriate to consider whether affording rights of access to the individual will serve the legislative purposes, as the CJEU did in relation to the Directive in both YS and Nowak (paras 93 – 94 and 108 above).
162. I consider that the CJEU's approach in Nowak accords with the relatively broad wording used in defining "personal data" in the Directive, the GDPR and the UK GDPR. I also note that recital (26) of the UK GDPR refers to the principles of data protection applying to "any information concerning an identified or identifiable natural person" (emphasis added); this choice of wording chimes with and reinforces the potentially wide nature of "relating to" in the Article 4(1) definition. The Nowak approach was endorsed by the CJEU in FF (para 118 above); and whilst FF is not binding on me, it is the only authority cited to the Court that was concerned with the GDPR. In addition, as I have already shown, the CJEU's approach reflected the contents of the earlier Article 29 Opinion, which persuasively explained why it accorded with the wording of the definition of "personal data" (paras 85 - 87 above). The current ICO Guidance takes a similar approach (paras 119 – 121 above). I am also satisfied that this accords with a central objective of the UK GDPR (as well as that of the Directive), that the subject access request should enable the data subject to be aware of and able to verify the lawfulness of the processing: see in particular recital (63) of the UK GDPR (para 72 above) and my discussion of the CJEU's reasoning in Nowak at paras 109 – 110 above.
163. …
164. Durant is not binding upon me as it was decided in respect of a differently worded definition of "personal data" and in circumstances where the Court of Appeal considered that the wording which does not appear in the current definition of "personal data" indicated that the legislature intended a narrow approach to be taken to the concept (paras 76 and 80 – 81 above). As I have observed when undertaking my chronological review of the authorities, Durant was clearly a correct decision on its facts and the indicators or "notions" identified by Auld LJ as to when information would "relate to" a data subject stemmed from the circumstances of that case and were not advanced as or intended to be an exhaustive account of how the statutory test could be met (paras 82 – 83 and 88 above). In any event the second of Auld LJ's notions – whether the data subject is the "focus" of the information – is not necessarily out of step with the later authorities, if it is applied in a manner that reflects the broad way in which the concept of "personal data" has subsequently been interpreted in those authorities, including that this focus may come not only from the content of the information, but from its purpose or effect."
- The data protection principles are set out Article 5(1) of the UKGDPR and ss 35-40 DPA. Article 5(1)(a) UKGDPR provides: that personal data shall be processed lawfully, fairly and in a transparent manner in relation to the data subject. Article 6(1) UKGDPR provides that processing shall be lawful only if and to the extent that at least one of the lawful bases for processing listed in the Article applies.
- The only potentially relevant basis here is article 6(1)(f):
"Processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which requires protection of personal data, in particular where the data subject is a child."
- The case law on article 6(1)(f)'s predecessor established that it required three questions to be answered, which we consider are still appropriate if reworded as follows
a. Is the data controller or a third party pursuing a legitimate interest or interests?
b. Is the processing involved necessary for the purposes of those interests?
c. Are the above interests overridden by the interests or fundamental rights and freedoms of the data subject?
- Lady Hale said the following in South Lanarkshire Council v Scottish Information Commissioner [2013] 1 WLR 2421 about article 6(f)'s slightly differently worded predecessor:
"27. ... It is well established in community law that, at least in the context of justification rather than derogation, 'necessary' means 'reasonably' rather than absolutely or strictly necessary .... The proposition advanced by Advocate General Poiares Maduro in Huber is uncontroversial: necessity is well established in community law as part of the proportionality test. A measure which interferes with a right protected by community law must be the least restrictive for the achievement of a legitimate aim. Indeed, in ordinary language we would understand that a measure would not be necessary if the legitimate aim could be achieved by something less. ... "
- Section 40(3A) is an absolute exemption and therefore the separate public interest balancing test under FOIA does not apply.
The role of the tribunal
- The tribunal's remit is governed by section 58 FOIA. This requires the tribunal to consider whether the decision made by the Commissioner is in accordance with the law or, where the Commissioner's decision involved exercising discretion, whether he should have exercised it differently. The tribunal may receive evidence that was not before the Commissioner and may make different findings of fact from the Commissioner.
List of issues
- The issues for the tribunal are:
a. Is the withheld information the personal of data of the Councillor i.e. does it relate to an identifiable individual?
b. If so:
i. Is the requestor pursuing a legitimate interest or interests?
ii. Is the processing involved necessary for the purposes of those interests?
iii. Are the above interests overridden by the interests or fundamental rights and freedoms of the data subject?
Evidence
- We read an open and a closed bundle, which included a witness statement from the appellant's husband, Richard Bellamy, who is also a Councillor at the relevant Council.
- The closed bundle consists only of the requested information. It is necessary for that to remain closed to avoid defeating the purposes of the proceedings.
Oral submissions
- The appellant made cogent, thoughtful and well-focussed submissions which we have taken into account when reaching our conclusions.
Discussion and conclusions
The resignation letter
- The appellant has a concern that the tribunal may have a copy of a different letter to the one that he has requested. As we explained at the start of the hearing, it is clear to us, taking account of the witness statement of Richard Bellamy, that the letter in the closed bundle is the letter that was requested by the appellant.
Is the resignation letter the personal data of the Councillor?
- The requested information is the Councillor's resignation letter. In it he explains his reasons for resigning as a Councillor. His name appears in the letter and he is clearly identifiable, even if the name were to be redacted, given that his resignation is public knowledge.
- Taking into account the guidance set out in the case law above, we find that a letter giving notice of resignation and setting out the reasons for the resignation is information relating to that individual. The purpose of the letter is to communicate that individual's reasons. It is, in our view, information that is proximate and relevant to that individual. It goes beyond the recording of his involvement in a matter that has no personal connotations. The focus of a resignation letter is on the individual who is resigning. The end of the Councillor's time as Councillor, and the reasons why he reached that decision are of clear biographical significance to him.
- For those reasons we conclude that the letter is the personal data of the the Councillor.
Is disclosure reasonably necessary for the purposes of a legitimate interest?
- We accept that there is a legitimate interest in this case, namely transparency in relation to the reasons why a Councillor, a public official, has resigned. We accept that disclosure is reasonably necessary for the purposes of that legitimate interest, because there is no less intrusive way of the public knowing why the Councillor has resigned.
Are the above interests overridden by the interests or fundamental rights and freedoms of the data subject?
- The Councillor's reasons for resignation are known to other Councillors and, in outline, to the appellant. They are not however, in the public domain.
- We find that the value of the letter in increasing transparency in relation to the operation of the Council and any shortcomings is, in the tribunal's view, very limited.
- That is because the Councillor briefly gives his personal subjective opinion on a small number of very focussed issues/incidents. The letter sheds no or very little light on what happened on those occasions. The views given by the Councillor are short, one-sided and without context. The letter does not identify or illuminate systematic problems with the operation of the Council. Overall, the publication of the letter would, we find, make a very limited contribution to informed debate or the public's ability to hold the Council to account.
- We accept that there are a number of frankly expressed comments/views in the letter that might be described as misguided, however we place significant weight on the fact that the Councillor was expressing those in his resignation letter. He was no longer going to be acting as a Councillor. For those reasons, we take the view that at the date of the request there remained some but only limited public interest in transparency in relation to those views.
- We accept that the reasons given for resignation relate to matters that took place in the Councillor's role as a Councillor i.e. in his public life rather than in his private life. If they had taken place in his private life, that would have led to an increased expectation of privacy.
- However, the letter is expressed in a very personal tone and contains a frank expression of opinions and this individual's particular frustrations about particular incidents during his time as a Councillor. It is focussed on the Councillor's thoughts and feelings about those particular incidents where there had been differences of opinion between him and others at the Council and that explain why he personally no longer wished to remain on the Council. In our view, it is very unlikely that the Councillor would have expressed his views in that way if he had anticipated that the letter would be made public.
- Even taking account of the fact that the Councillor is, in the appellant's submission a robust individual, in our view, it is unlikely that he would have expressed his views in such a way if he had anticipated that the letter would be made public.
- There is no evidence before us of a general practice of the Council publishing the resignation letters of Councillors. We accept the appellant' submission that it is often the case that where a Minister resigns their post by writing to the Prime Minister, the exchange of letters is published. That does not, in our view, create any expectation that the resignation letter of a Councillor will be published.
- For those reasons we find that the Councillor had a reasonable expectation of privacy.
- There is no evidence before us on whether or not the Councillor consents to disclosure. Given the content of the letter, its focus on the Councillor's personal views and opinions and the frank and impassioned tone of the letter we accept that there is likely to be some distress to the Councillor if the letter is published.
- For all those reasons, we conclude that, overall, the legitimate interests in disclosure are overridden by the interests or fundamental rights and freedoms of the data subject.
- The information is therefore exempt under section 40(2) and the appeal is dismissed.
Signed
Sophie Buckley
Date: 24 June 2025