(General Regulatory Chamber)
Information Rights
B e f o r e :
MEMBER COSGRAVE
MEMBER SIVERS
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GERRY WOODHOUSE |
Appellant |
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- and - |
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INFORMATION COMMISSIONER |
Respondent |
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Crown Copyright ©
Cases:
OFCOM v Morrissey and the Information Commissioner [2011] UKUT 116 (AAC)
Lampert v Information Commissioner: [2019] UKUT 60 (AAC)
Town Investments Ltd. and Others v Department of the Environment [1978] AC 359
Decision: The appeal is Dismissed
"I also wish to thank you for 'flagging' concerns to your 'Group Manager' and I would also be most grateful to receive a copy of whatever advice was sent to Potto council…. see excerpt below from its October 2023 minutes.
'Email from ICO commissioner. Discussed policy from 'What do they know' and 'FOI' about pseudonyms.'""
The minutes of the meeting of the parish council of 17 October 2023 under "Matters arising" record
• Discussed the meeting with the ICO.
• Discussed requests for internal reviews, it was noted that the requests have been received from persons outside the parish.
• A review of the responses to these requests was undertaken, it was agreed that the original responses were correct.
Email from ICO commissioner. Discussed policy from 'What do they know' and 'FOI' about pseudonyms.
The minutes for 21 November 2023 record very similar points under "Matters Arising"
4.8 ICO - Freedom of information requests and reviews
• Discussed the meeting with the ICO. Discussed policies from 'What do they know' and 'FOI' about pseudonyms.
• Discussed requests for internal reviews, it was noted that the requests have been received from persons outside the parish.
• A review of the responses to these requests was undertaken, it was agreed that the original responses were correct.
"Please can you send me information confirming the nature and detail of this "meeting" including the advice or Recommendations made by the ICO
44 Prohibitions on disclosure.
(1) Information is exempt information if its disclosure (otherwise than under this Act) by the public authority holding it—
(a) is prohibited by or under any enactment,
132 Confidentiality of information
(1) A person who is or has been the Commissioner, or a member of the Commissioner's staff or an agent of the Commissioner, must not disclose information which—
(a) has been obtained by, or provided to, the Commissioner in the course of, or for the purposes of, the discharging of the Commissioner's functions,
(b) relates to an identified or identifiable individual or business, and
(c) is not available to the public from other sources at the time of the disclosure and has not previously been available to the public from other sources,
unless the disclosure is made with lawful authority.
(2) For the purposes of subsection (1), a disclosure is made with lawful authority only if and to the extent that—
(a) the disclosure was made with the consent of the individual or of the person for the time being carrying on the business,
(b) the information was obtained or provided as described in subsection (1)(a) for the purpose of its being made available to the public (in whatever manner),
(c) the disclosure was made for the purposes of, and is necessary for, the discharge of one or more of the Commissioner's functions,
(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(e) the disclosure was made for the purposes of criminal or civil proceedings, however arising, or
(f) having regard to the rights, freedoms and legitimate interests of any person, the disclosure was necessary in the public interest.
(3) It is an offence for a person knowingly or recklessly to disclose information in contravention of subsection (1)
The ICO went on to explain that section 132(2) of the DPA lists circumstances in which a disclosure can be made with lawful authority but that none of them applied in this case. As a result, the information was exempt from disclosure.
- The Commissioner should publish the advice he had given since it was in the public interest so to do; it was "perverse… applying s44(1) to my request is inappropriate – it is plain wrong".
- The information was provided by the Commissioner not to the Commissioner; accordingly it did not fall within s132(1)(a)
- It related to a parish council not an individual or a business therefore not within s132(1)(b)
- The information was discussed during a public meeting of the council and accordingly should have been published in the council minutes but wasn't; affectively it had been disclosed at the time
- The Commissioner could have published the information on his website as "Regulatory Action" and it would then have been published "with lawful authority"
- One of the functions of the Commissioner is to promote good practice (s47 FOIA) accordingly it should have been published to achieve this.
- He submitted that s132(2) c and f applied to the publication – the discharge of the Commissioner's functions by and the public interest in the disclosure. These gateways to disclosure applied and the Commissioner was incorrect in his conclusion that they did not.
- There is a significant difference between formal notices he issues during an investigation and advice he may give in the normal course of day-to-day activities. The criminal sanctions for unauthorised disclosure were another significant distinction which affected the decision about disclosure.
- The information in the advice was largely based on the information provided to the Commissioner
- Relying on the Upper Tribunal decision in Lampert, the Commissioner argued that a public authority was a business
"I turn to the context. If the word "business" in section 59 (1) of DPA 1998 were to be given the limited interpretation for which Mr Lampert contended, it would mean that a very considerable number of the public authorities covered by schedule 1 of FOIA, namely, those which are governmental or not for profit organisations would not be caught be section 59(1). The requester would therefore be enabled to obtain by the back door (i.e. from the Information Commissioner) what he could not obtain by the front door (i.e. from the public authority directly). Such a result gives rise to a nonsense and cannot be what Parliament intended. Furthermore, as Mr Metcalfe pointed out, if this was the true construction of section 59, this would mean that public authorities would become reluctant to reveal to the Commissioner information, which could subsequently become disclosed by what I have described as "the back door". I am satisfied for the above reasons that the word "business" in section 59 cannot be limited to bodies which are engaged in commercial activity but encompasses anybody engaged in regular professional activities, including all those bodies listed or included in schedule 1 to FOIA which are not-for-profit organisations."
- Noting the statement that the contents of the advice were not recorded in the minutes of the Parish council meeting "the Commissioner is confident in maintaining s132(1)(c) that the withheld information has not been made available to the public at the time of disclosure and has not previously been available to the public from other sources".
- In dealing with the claims that s132(2) (c) and (f) applied the Commissioner argued that the Upper Tribunal decision in Ofcom v Morrissey, Information Commissioner established that the exercise of a discretion by a public authority in the exercise of its functions was not something that the Information Commissioner and therefore the tribunal in considering an appeal, could review.
- He further argued that a decision that was "necessary in the public interest, with the potential for a criminal sanction for an unauthorised disclosure, was distinct from the decision on the balance of public interest which was the more usual matter for consideration under FOIA. This presented a high bar which Mr Woodhouse's arguments did not approach.
c
Consideration
"The word "business" is an etymological chameleon; it suits its meaning to the context in which it is found. It is not a term of legal art and its dictionary meanings, as Lindley LJ pointed out in Rolls v Miller (1884) 27Ch.D. 71 at 88, embrace
'almost anything which is an occupation, as distinguished from a pleasure – anything which is an occupation or duty which requires attention is a business.' "
Signed
Hughes
Date: 4 June 2025