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United Kingdom Information Tribunal including the National Security Appeals Panel

You are here: BAILII >> Databases >> United Kingdom Information Tribunal including the National Security Appeals Panel >> House of Commons v Information Commissioner [2007] UKIT EA_2006_0074 (09 August 2007)
URL: http://www.bailii.org/uk/cases/UKIT/2007/EA_2006_0074.html
Cite as: [2007] UKIT EA_2006_0074, [2007] UKIT EA_2006_74
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Tribunals Service
Information Tribunal
Appeal Numbers: EA/2006/0074/0075/0076
Appeal Numbers: EA/0006/0074/0075/0076
Freedom of Information Act 2000 (FOIA)
Heard at Procession House, London
Decision Promulgated
9 August 2007
Date 20th June 2007
BEFORE
INFORMATION TRIBUNAL CHAIRMAN
John Angel
And
LAY MEMBERS
Jacqueline Clarke and Andrew Whetnall
Between
THE CORPORATE OFFICER OF THE HOUSE OF COMMONS
Appellant
And
INFORMATION COMMISSIONER
Respondent
Representation:
For the Appellant:
For the Respondent:
Ms. Eleanor Grey
Mr. Tim Pitt-Payne
Decision
The Tribunal dismisses the appeal and upholds the Information Commissioner’s
Decision Notices. The Tribunal orders that the disputed information in the
format disclosed to the Tribunal in confidence be now disclosed to the
complainants in accordance with their requests as identified in the Decision
Notices within 20 days of the date of this decision.
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Appeal Numbers: EA/0006/0074/0075/0076
Reasons for Decision
The requests for information
1.    There are three consolidated appeals before the Tribunal. All three are
brought by the Corporate Officer of the House of Commons (the House), and
arise out of decisions by the Information Commissioner (the Commissioner)
requiring the disclosure of information relating to Anne Moffat (Ms Moffat)
MP’s travel expenses.
2.    In case number EA/2006/0074 the request related to Ms Moffat’s travel
expenses for 2003/04. The request was for details of the following travel
expenses:
[B]roken down along the lines of …X number of rail tickets London-
Edinburgh, Edinburgh-London at Y£s. Total cost, total mileage and
cost of car/petrol allowance claimed. Total number of taxi journeys,
total cost of taxi journeys. Total cost of travel claimed for spouse. All
other travel expense [sic] claimed.
The House refused the request and the Commissioner required the requested
information to be disclosed in his Decision Notice FS50067986.
3.    In case number EA/2006/0075 the original request asked for a detailed
breakdown of Ms Moffat’s travel expenses for 2003/04. This was refused by
the House. Paragraph 4.6 of the Commissioner’s Decision Notice
FS50083372 sets out what the complainant indicated that she was seeking by
way of detailed breakdown, as follows.
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Appeal Numbers: EA/0006/0074/0075/0076
The complainant indicated that she was not interested in seeking the
cost of each journey, only average costs and that she was primarily
interested in those journeys that are part of the travel between London
and East Lothian. She indicated that she was especially keen on
knowing the number of trips between London and East Lothian
involving plane, rail and sleeper. In relation to claims on behalf of a
spouse she was interested in both the total cost claimed for travel and
particularly the cost if any involving a spouse travelling between
London and East Lothian.
4.   The Commissioner accepted that some of the information sought was not
recorded and therefore not held by the House, and that the complainant had
confirmed that she was content to receive a detailed breakdown as recorded
and held by the House - see paragraph 4.11 of the Decision Notice. The
Commissioner ordered the House to disclose the information requested.
5.   In case number EA/2006/0076 the information requested related to the
2002/03 year. The House refused the request. In the course of the
Commissioner’s investigation the complainant agreed to define it in similar
terms to the formulation used in EA/2006/0074 - see paragraph 4.4 of the
Decision Notice FS50085375. The Commissioner ordered the House to
disclose the information as defined.
6.   The House has usefully provided us with a breakdown of these requests in a
comparative tabular form which is contained in the annex to this decision.
This breakdown shows the detail of each element of the requests, where they
are duplicated and which parts of the requests have already been disclosed as
a result of the Baker case (see paragraph 7 below) or are not held by the
House.
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Appeal Numbers: EA/0006/0074/0075/0076
The Baker decision
7.   These cases were stayed pending the decision in The Corporate Officer of the
House of Commons v the Information Commissioner EA/2006/0015/0016,
which we will refer to as “the Baker case”, and we will refer to the present
cases collectively as “the Moffat case”.
8.    In the Baker case the Tribunal ordered the disclosure of the breakdown of
MPs’ travel expenses by mode of travel. This has now been implemented by
the House and the information is or will soon become available on the
House’s publication scheme.
9.    The House did not seek in this appeal to challenge the decision in the Baker
case, or to reopen any of the points that were decided in that case. So to the
extent that the requests in the Moffat case are of the same scope as the
requests in the Baker case, they are no longer controversial. To the extent that
they go beyond the requests considered in the Baker case, the House contends
that the requested information ought not to be disclosed.
10.  The requests go beyond the Baker requests, namely the total cost incurred by
each mode of travel, in that they require six further categories of disclosures,
namely:
(1)       spouse’s expenses;
(2)       number of trips by some modes of travel;
(3)       average cost of some individual trips by some modes of travel;
(4)       mileage for car travel;
(5)       number and cost of taxi journeys; and
(6)       EU travel.
Factual Background.
11. The factual background to the requests in the Moffat case is similar to that in
the Baker case and is set out at paragraphs 11 to 26 of the Baker decision. We
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were again ably assisted by Andrew John Walker (Mr. Walker), the House of
Commons’ Director of Finance and Administration. In his evidence before the
Tribunal in the Moffat case he provided clarification on several matters which
had arisen in the Baker case.
12.  Firstly in the Baker case the Tribunal took into account the reduction in
overall expenditure on MP’s travel since the publication of the annual
aggregate travel figure. Mr Walker explained before us for the first time that
this reduction between 2004/05 and 2005/06 derived from the figures at p29
of the Resource Accounts, which showed that travel expense costs had fallen
from £8,346,000 in 2004/05 to £5,994,000 in 2005/06. He explained that in
his view the reduction in overall travel costs during 2005/2006 reflected the
fact that a General Election took place in May 2005 (MPs cannot claim the
cost of travel during the three or four week period between the dissolving of
the House and the day of the election); in addition, the main mileage rate fell
from 57.2p per mile in 2004/2005 to 40p per mile in 2005/2006. However he
did not go so far as to say that there was no “FOIA effect”.
13. Mr Walker also set out the travel rules for Members’ spouses, civil partners
and children under the age of 18 who are entitled to up to 15 return journeys
each year between London and their constituency and the Member’s main
home.
14. In the Baker case Mr Walker gave evidence that every request for information
of MPs’ allowances outside that disclosed under the House’s publication
scheme was considered on its individual merits in accordance with FOIA, but
that all had been refused. In the Moffat case he gave evidence that the requests
had been similarly refused.
15. Mr Walker explained that the method for claiming the cost of taxi journeys
was similar to that of car journeys. The mileage for the journey is reclaimed in
the same way as the mileage allowance for cars. This means that the House
does not hold details of the number of taxi journeys or their actual cost.
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16. The cost of individual train journeys was requested. Mr Walker explained to
us that for the years of the requests these were largely claimed through travel
warrants and that in many cases it was impossible to identify the cost of
individual journeys. The system was being replaced by credit cards which in
the future should make it easier to identify such information.
17. Finally Mr Walker stated that it was the practise to treat all MPs similarly in
relation to disclosure of allowance information including travel. As a result he
speculated that if the House was required to comply with the requests in this
case that would mean disclosing similar information about all MPs as had
happened in practice following the Baker decision.
18. Ms Moffat also gave very clear and helpful evidence in both open and closed
sessions. We recite here some of the evidence we have taken into account in
open session and other evidence is set out in the confidential annex to this
decision.
19. It was explained that Ms Moffat was one of the MPs in the highest 5% of
travel expenders and received communication from the House to that effect.
In evidence before us Ms Moffat accepted that for at least one year she had
made the highest claim of any MP for travel expenses, albeit that there were
good reasons for such a level of expenditure including the fact she was in a
largely rural constituency involving significant car travel, that her
constituency was a long way from Westminster and that she visited her
constituency on a very regular basis often twice weekly.
The disputed information
20. In common with most cases before the Tribunal the information requested has
been provided to the Tribunal in confidence (the disputed information). Where
evidence has been given or submissions made in relation to the disputed
information these have been made in closed session so as to maintain secrecy.
The disputed information comprises the information held by the House in
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Appeal Numbers: EA/0006/0074/0075/0076
relation to the requests as clarified by the Commissioner with the requesters
and set out in the Decision Notices.
Relevant statutory provisions
21. The relevant statutory provisions in the Moffat case are similar to those in the
Baker case but for the sake of clarity are repeated here. Section 1 FOIA
creates a general right of access on request to information in recorded form
held by public authorities. Public authorities are under a duty to confirm or
deny whether they hold the information sought (section 1(1)(a) FOIA), and to
disclose the information if it is held (section 1(1)(b) FOIA). Part II of FOIA
confers a number of exemptions from both duties, including the section 40
exemption claimed by the House in the present appeals. In these cases,
exemption is claimed only in respect of the duty to disclose, under section
1(1)(b). So far as is relevant to these appeals section 40 reads as follows:
40. - (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 do not fall within subsection
(1), and
(b) either the first or the second condition below is satisfied.
(3) The first condition is-
(a) in a case where the information falls within any of
paragraphs (a) to (e) of the definition of "data" in
section 1(1) of the Data Protection Act 1998, that the
disclosure of the information to a member of the public
otherwise than under this Act would contravene:
(i) any of the data protection principles, or
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(ii) section 10 of the Act (right to prevent
processing likely to cause damage or
distress)…
(b) in any other case, 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
if the exemptions in section 33A(1) of the Data
Protection Act 1998 (which relate to manual data held
by public authorities) were disregarded.
22. As Mr Pitt-Payne usefully summarised in the Baker case, if A makes a request
under FOIA for personal data about B, and the disclosure of that personal data
would breach any of the data protection principles, then the information is
exempt from disclosure under the Act: this follows from section 40(2) read in
conjunction with section 40(3)(a)(i) or (when applicable) section 40(3)(b).
This is an absolute exemption: see FOIA section 2(3)(f)(ii). Hence the
Tribunal is not required to consider whether the public interest in maintaining
the exemption outweighs the public interest in disclosure: see section 2(2).
However, as explained below the application of the data protection principles
does involve striking a balance between competing interests, similar to
(though not identical with) the balancing exercise that must be carried out in
applying the public interest test.
23. By common agreement between the parties section 40(3)(a)(ii) does not apply
because under section 10(1) of the Data Protection Act 1998 (DPA) no notice
has been served by Ms Moffat on the House.
24. The mention of the data protection principles in section 40(3)(a)(i) requires
reference to section 4 DPA as follows:
(1)       References in this Act to the data protection principles are to the
principles set out in Part I of Schedule 1.
(2)       Those principles are to be interpreted in accordance with Part II of
Schedule 1.
(3)       Schedule 2 (which applies to all personal data)… set out
conditions applying for the purposes of the first principle…
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(4) Subject to section 27(1), it shall be the duty of a data controller to
comply with the data protection principles in relation to all
personal data with respect to which he is the data controller.
25. The data protection principles are set out in Part 1 of Schedule 1 DPA. There
are eight principles in all, but only the first is relevant to this appeal. So far as
material, it read as follows.
1.         Personal data shall be processed fairly and lawfully and, in
particular, shall not be processed unless-
(a) at least one of the conditions in Schedule 2 is met …
26. Part II of Schedule 1 to the Act contains further material as to the
interpretation of the data protection principles. Paragraph 2 of Part II relates
to the circumstances in which data are treated as being processed fairly for the
purposes of the first data protection principle. So far as relevant to this
appeal, it reads:
(1) Subject to paragraph 3, for the purposes of the first principle
personal data are not to be treated as processed fairly unless-
(a) in the case of data obtained from the data subject, the
data controller ensures so far as practicable that the
data subject has, is provided with, or has made readily
available to him, the information specified in sub-
paragraph (3).
(3) The information referred to in sub-paragraph (1) is as follows,
namely-
(a) the identity of the data controller,
(b) if he has nominated a representative for the purposes of
this Act, the identity of that representative,
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(c)        the purpose or purposes for which the data are intended
to be processed, and
(d)       any further information which is necessary, having
regard to the specific circumstances in which the data
are or are to be processed, to enable processing in
respect of the data subject to be fair.
27. By common agreement between the parties the requirements of fairness, under
paragraph 2 of Part II of Schedule 1, have been met in this case and are not at
issue.
28. In order to satisfy the first data protection principle, it is necessary for
processing to satisfy one of the conditions in Schedule 2 to the DPA. The
condition that is potentially relevant in the cases concerning Ms Moffat is set
out in paragraph 6(1) of Schedule 2:
The processing is necessary for the purposes of legitimate interests
pursued by the data controller or by the third party or parties to whom
the data are disclosed, except where the processing is unwarranted in
any particular case by reason of prejudice to the rights and freedoms
or legitimate interests of the data subject.
29. The only issue raised by the House in this case is that disclosure of the
requested information would be in breach of the first data protection principle,
because none of the conditions in Schedule 2 would be satisfied. It is
common ground between the parties that the only relevant condition is in
paragraph 6 of Schedule 2.
30. In the Baker case the Tribunal found, at paragraph 90 of that decision, that the
application of paragraph 6 of Schedule II DPA:
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involves a balance between competing interests broadly comparable,
but not identical, to the balance that applies under the public interest
test for qualified exemptions under FOIA. Paragraph 6 requires a
consideration of the balance between: (i) the legitimate interests of
those to whom the data would be disclosed which in this context is a
member of the public (section 40 (3)(a)); and (ii) prejudice to the
rights, freedoms and legitimate interests of the data subjects. However
because the processing must be ‘necessary’ for the legitimate interests
of members of the public to apply we find that only where (i) outweighs
(ii) should the personal data be disclosed.
31. The Tribunal’s general powers in relation to appeals are set out in section 58
of the Act. They are in wide terms. Section 58 provides as follows.
(1) If on an appeal under section 57 the Tribunal considers-
(a) that the notice against which the appeal is brought is not in
accordance with the law, or
(b) to the extent that the notice involved an exercise of discretion
by the Commissioner, that he ought to have exercised his
discretion differently,
the Tribunal shall allow the appeal or substitute such other
notice as could have been served by the Commissioner; and in
any other case the Tribunal shall dismiss the appeal.
(2)       On such an appeal, the Tribunal may review any finding of fact
on which the notice in question was based.
32. The question whether the exemption in section 40 applies is a question of law
or (alternatively) of mixed fact and law. It is accepted that the Tribunal may
consider the merits of the Commissioner’s decision that this exemption does
not apply, and may substitute its own view if it considers that the
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Commissioner’s decision was erroneous. The Tribunal is not required to
adopt the more limited approach that would be followed by the Administrative
Court in carrying out a judicial review of a decision by a public authority. All
of this is by now well established in the case law of the Tribunal.
Relationship between Members of Parliament and the House of Commons
33.  Before considering what matters the Tribunal has to determine in this case we
have found it useful to consider the question; whether the House is a separate
entity from the Members for the purposes of FOIA or is it to be regarded as
the collective group of Members?
34.  The parties by written representations following the hearing have provided us
with submissions which have been very helpful in enabling us to consider this
question. We find that the House is not itself a body corporate or any other
kind of legal person. In particular, when dissolved by Her Majesty (for
example before a General Election) it ceases to exist. It acts only by way of
motions or resolutions in accordance with its Standing Orders.
35.  The Parliamentary Corporate Bodies Act 1992 (PCBA) creates by section 2 a
corporation sole by the name of The Corporate Officer of the House of
Commons. This office is held by the Clerk of the House of Commons for the
time being and his functions are to hold property and enter into contracts for
any purpose of the House. The 1992 Act does not convert the House of
Commons itself into a corporate entity. Section 6 of the 1992 Act provides for
a particular instance (gifts and bequests) where a reference to the House of
Commons is to be treated as a reference to the Corporate Officer. But the Act
does not provide more generally that legislative references to the House of
Commons should be taken to be references to the Corporate Officer.
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36. There is also the body known as the Commission of the House of Commons
created by the House of Commons (Administration) Act 1978. The
Commission is a body corporate (see para 1 of Schedule 1 to that Act). The
main functions of the Commission are to be the employer of the staff who
work for the House and to prepare, and lay before the House, estimates for the
use of resources in the House service.
37. Section 63A of the Data Protection Act (inserted by FOIA) provides that the
data controller of data processed by the House is the Corporate Officer of the
House of Commons. By contrast, the public authority listed in Schedule 1
FOIA as the public body bound by the Act is simply “The House of
Commons”. FOIA does not refer to the Corporate Officer.
38. The question as to what precisely is intended by the reference to “The House
of Commons” in Schedule 1 to FOIA is one which has arisen, according to the
House, in relation to a number of requests made relating to information
belonging to particular groups broadly operating under the auspices of or in
connection with the House. In many cases the information is clearly held by
the House, whether this is by the departments within the House’s
administration service, by Select Committees, by the Parliamentary Archive
or by the private office of Mr Speaker. In some cases the position is less clear
cut. According to Ms Grey the House considers each such request on a case
by case basis using the ordinary principles of statutory construction. For
example, the House assumes that Parliament did not intend that the public’s
right to information from the House is suspended during periods when the
House is dissolved even though, as mentioned above, the House of Commons
does not exist during such periods.
39. Similarly, Ms Grey says the House works on the basis that if it had been
intended that MPs should be public bodies, that would have been made clear
in Schedule 1.
40. Ms Grey develops this point: the choices are between construing the reference
to “The House of Commons” in Schedule 1 to FOIA as a reference to the
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institution (such that legal responsibility for compliance with a request under
s.1 would fall on that institution), or to the collection of individual Members
(such that legal responsibility for compliance with a request would fall on
each Member in relation to whom a request is made). There are a number of
reasons, she argues, to adopt the first construction, amongst which are:
(1)       Under s.3 (1) of FOIA, the term “public authority” is defined
(subject to certain immaterial exceptions) as “any body which, any
other person who, or the holder of an office which (i) is listed in
Schedule 1”. Schedule 1 lists “The House of Commons”, not “The
Members of the House of Commons”. The House of Commons is
neither a “person”, nor can it properly be described as an “office”.
Within the taxonomy of s.3, therefore, Schedule 1 can only be
referring to a “body” – namely, the institution, not the individuals.
(2)       If FOIA had intended to include each MP as a separate public
authority, it seems likely that more consideration would have been
given to the various capacities in which MPs hold information.
Not all such information would be expected to fall within the Act.
For example, it would be surprising if information held solely for
party political purposes was intended to be covered by the Act,
when political parties are not “public authorities”.
(3)       This interpretation is not affected by the fact that the House of
Commons has no separate legal identity. Many of the other bodies
listed in Schedule 1 to FOIA have no separate legal identity. For
example, Government departments are not legal persons:
individual Secretaries of State may be corporations sole, but their
Departments have no separate legal identity.
41. For the purposes of FOIA, therefore Ms Grey states, the House regards the
Members as separate entities from “the House of Commons”. Where
information is provided by Members to the House’s administration, for
example in relation to an expenses claim, the information is “held” by the
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House only to the extent that it is held by the House’s administration, not to
the extent that it may be retained in the Member’s personal files.
42. The Tribunal accepts this legal position of the House in relation to FOIA and
that the relevant public authority is in fact the House itself, not the Corporate
Officer, although the title of the Appellant in this case is “The Corporate
Officer of the House of Commons” as it was in the Baker case. The reason for
the title of the Appellant is because under section 2 PCBA the Corporate
Officer of the House is provided with power to sue or be sued and therefore
has the capacity to conduct litigation. We also accept that each individual MP
is not a public authority under the Act. If the Act had intended that individual
MPs were to be public authorities, it would have said so in clear terms. We
accept that the Act intends that the House of Commons – the body made up of
MPs collectively – is to be a public authority.
43. The Tribunal also accepts that information that is held merely by an individual
MP does not come within the scope of the Act. For instance, an individual
MP’s casework files do not come within FOIA. Information about an
individual MPs’ expenses, if held merely by that MP as an individual, does
not come within the scope of the Act either, since it is not information held by
a public authority.
44. However we find that where information is held by the House collectively,
and not simply by an individual MP, then it falls within the scope of the Act.
It is accepted by the parties in the present case that the disputed information is
held by the House collectively. There has been no suggestion at all that the
disputed information is information that is merely held by individual MPs, or
that the disputed information is not held by the House. Rather the appeal has
been put on the basis that the information sought is exempt from disclosure
under the Act.
45. The question for the Tribunal is what bearing, if any, does all of this have on
the assessment that is required by Schedule 2 paragraph 6 of DPA? For the
purposes of that provision the question is this: what are the legitimate
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interests pursued by a member of the public to whom the disputed information
would be disclosed?
46. The Tribunal finds that there is a legitimate interest both in understanding and
scrutinising the way in which public funds are spent by the House as a
collective body, and in understanding the way in which public funds are used
by individual MPs. These two aspects of legitimate public interest are closely
related and cannot sensibly be considered in isolation from one another. The
amount that is spent by the House collectively, and the way in which that
money is spent, depends on the expenses claims made by individual MPs and
the travel choices made by individual MPs.
47. Further, although MPs as individuals are not public authorities in their own
right, they are holders of a public elected office and (in relation to their travel
expenses) they are in receipt of public money. It follows that there is a
legitimate public interest in understanding the way in which public money is
used in respect of the travel expenses of individual MPs. This does not in any
way involve treating MPs as if they were public authorities. Plainly, they are
not.
Matters for the Tribunal to determine
48. The issues for the Tribunal to determine in the Moffat case have been
narrowed to the following matters:
(1)       what competing legitimate interests to take into account in order to
(2)       determine the balance between these competing interests in terms
of the test set out in paragraph 30 above of this decision.
49. Before proceeding to identify the competing interests the Tribunal would
reiterate two other findings in the Baker case relating to the general fairness of
processing under the first Data Protection Principle, which in the Tribunal’s
view are also relevant to the Moffat’s case. These relate to:
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(1)       the extent of the consideration which must be given to the interests
of Ms Moffat who is an MP, and
(2)       the distinction between personal data related to Ms Moffat’s public
and private life.
50. Under paragraph 79 of the Baker decision the Tribunal found
(1)       the interests of MPs as data subjects are not necessarily the first
and paramount consideration where the personal data being
processed relate to their public lives; and
(2)       it is possible to draw a distinction between personal data related to
an MPs public and private life.
51. However there is a difference between the Baker and Moffat cases in that the
former relates to requests in relation to MPs generally whereas the latter
relates to requests in relation to a particular individual MP. Mr Pitt-Payne
argues that the main focus under paragraph 6 of Schedule 2 DPA should be to
consider the rights and freedoms or legitimate interests of the individual data
subject as set out in paragraph 6, namely Ms Moffat and not all MPs. Ms Grey
argues we should not remove from our minds the overall context of the Moffat
case and the likely impact of our decision on the position of MPs generally
because of the stance of the House not to distinguish between individual MPs.
We will return to this issue later.
The legitimate interests of members of the public
52. Both parties accepted that the legitimate interests recognised in the Baker case
also apply to the Moffat case. These are found at paragraph 91 of the Baker
decision and are set down again here but are numbered here for ease of
reference:
(1)       understanding the way in which MPs’ travel expenses are used;
(2)       ensuring that MPs use of public monies is properly accountable for
in the way in which it is spent by providing public scrutiny of the
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use of public funds by elected office holders - greater transparency
would ensure the proper use of public funds and help guard against
their misuse;
(3)       encouraging MPs to take better value for money choices in the
mode of transport used and hopefully producing savings to the
public purse - the public have a right to know whether value for
money is being obtained in MPs’ travel arrangements;
(4)       being more aware of the environmental or ‘green’ choices made by
MPs as demonstrated by their mode of travel;
(5)       being aware of MPs’ choices of mode of travel in the light of their
involvement in debating and legislating on transport and
environmental matters.
53. In relation to the first interest, understanding the way in which MPs' travel
expenses are used, Mr Pitt-Payne argues that the breakdown sought in the
Moffat case does contribute to understanding the way in which MPs' travel
expenses are used because it gives information about the number of times that
particular modes of transport are used and about the average cost of the
occasions on which particular modes of transport are used. He contends that it
can really inform two sorts of discussion and debate. It can inform a
consideration as to whether a particular individual is using their Parliamentary
travel expenses in an economical way. It can also inform discussion and
debate about whether the House in general is spending its travel expenses
money in an efficient or economical way. He gives the following example. It
could be envisaged that a discussion along the following lines could take
place: if MPs are paying X pounds a go for making a particular journey that
indicates that there is a strong case for the House to try and use its collective
purchasing power to get a better deal for MPs generally.
54. In relation to the second point, that of ensuring that MPs' use of public money
is properly accountable, Mr Pitt-Payne contends that the point about guarding
against misuse applies in this case just as in the Baker case, although there is
no suggestion that in the Moffat case there has been misuse. He makes the
point that simply because this information is disclosed, would not
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Appeal Numbers: EA/0006/0074/0075/0076
automatically mean that in every future case the same information will be
disclosed about all MPs. But nevertheless, if this information is disclosed,
that is potentially a deterrent against any misuse of travel expenses. So, in
relation to this interest it is unnecessary to say in this particular case there has
been misuse and there should be disclosure. The point is rather that disclosure
at a particular level is a deterrent, is a safeguard against misuse. It is one of
the fairly fundamental points about freedom of information generally, that it is
the prospect of disclosure that provides an additional incentive to honesty and
propriety, and an additional disincentive against misuse of public money.
55. In relation to the third point, encouraging MPs to make better value for money
choices, he contends that information that tells you more about how much is
being spent on particular journeys, such as the average amount that a
particular MP is spending on a particular journey, has a bearing on
encouraging MPs to take better value for money choices.
56. In relation to the fourth and fifth points which he describes as the
"environmental" or "green choices" points, the relevance of these is that
environmental or green issues are increasingly a part of political debate and
discussion. That was recognised by the Tribunal in the Baker case. All main
political parties are seeking to emphasise their commitment to environmental
or green issues, including in relation to matters of travel and transport. There
is a legitimate public interest in knowing the extent to which MPs are
practising what they preach. That interest is informed by disclosure of the
sort of information that was disclosed in the Baker case. It would also be
informed by disclosure of the information that is at issue in this case, because
it takes the level of scrutiny one step further. In terms of environmental or
green choices, one is looking at to what extent people are travelling by air
when they could reasonably travel by other means; to what extent are people
travelling by road when they could reasonably travel by, say, rail. Taken
together with information about the details of the total number of journeys
between particular points that were made by, say, air or rail, then that
increases the level of information in relation to those environmental or green
issues. So, Mr Pitt-Payne submits the fourth and fifth interests are engaged
19
Appeal Numbers: EA/0006/0074/0075/0076
here just as they were in the Baker case and that aspect of the public interest
in disclosure is taken one stage further.
57. Ms Grey accepts that the green issues are relevant in this case but that they are
adequately satisfied by the disclosures already made in the Baker case and
that any further disclosure would not add significantly to the public debate on
these interests.
58. Mr Pitt-Payne submits that there are two other factors relating to the
legitimate interests in disclosure, which go beyond what is in paragraph 53.
The sixth interest is the relevance, if any, of the fact that it appears that Ms
Moffat is at the very high end of spending as compared with MPs generally.
For one of the two years with which this Tribunal is concerned, it appears that
she had the highest expenses claim of any MP. This is a request for
information about a particular individual and there is a specific interest, in his
submission, in looking at a detailed breakdown of an MP whose travel
expenses in total are high as compared with the total travel expenses of MPs
generally.
59. The seventh interest, according to Mr Pitt-Payne, relates to that part of the
request in relation to the spouse's travel. What is being sought here, he
contends, is not any sort of breakdown, but a global figure for the amount
claimed in relation to spouse's travel during the two years in question. His
submission is that there is a legitimate interest in disclosure of that
information as part of the general interest in understanding the way in which
MPs' travel expenses are used. It comes within the first point at paragraph 52
above.
60. Ms Grey reminded us that Members’ spouses, civil partners and children
under the age of 18 are entitled to up to 15 return journeys each year between
London and their constituency and the Member’s main home. The overall
figures in respect of travel claims for spouse and children are reportable.
Therefore, she argues, there should be no disclosure, because:
20
Appeal Numbers: EA/0006/0074/0075/0076
•    The claims relate solely to the private life of the couple concerned. They
are payable in order to help MPs retain some sort of family life, despite
the travel requirements of the job and the difficult pattern of working
hours at Westminster;
•    The public can properly debate whether or not MPs should be entitled to
receive these allowances on the basis of the published details of the
scheme for Members Allowances. It is possible to take a view on whether
or not this is a justified use of public money. It is not necessary to detail
the costs individually incurred by each MP and his or her family, in order
to have a sensible public debate.
61. Ms Grey makes the following further submissions in relation to the interests
in paragraph 52 above:
•    The existing disclosure (including that secured as a result of the Baker
case) adequately satisfies all the interests set out in the paragraph. Both the
totals claimed by all MPs, and the mode of transport, are now apparent. It
is not necessary to have a further breakdown to satisfy the public interest
in how MPs spend public money. The level of detail claimed here is
unnecessary.
•    The need for public scrutiny of MPs’ claims has to be set against the fact
that expenditure is already scrutinised and audited by the House, and has
to be incurred on only those expenses which are covered by a published
scheme.
•    In fact, she argues, there is no clear public interest in MPs’ reducing their
travel expenditure. The allowance is to enable them to do their job
properly. MPs must use their own judgment on how much travel is needed
for that purpose. Some may decide that mid-week constituency
engagements (requiring a return from London) are not worth attending;
others may choose to come back to their constituency. They are
accountable at the ballot box for these choices. As a result, adding to the
pressure to justify and reduce expenditure may well not be in the public
21
Appeal Numbers: EA/0006/0074/0075/0076
interest. The terms of the expenses and allowances scheme are a
sufficient protection against the misuse of funds.
•    MPs’ consent for disclosure was sought only for release of the aggregate
figures, and not for more detailed break-downs (see the history of the
publication scheme, as set out in the Baker case). They are entitled to be
able to regulate their affairs without ‘retrospective amendments’ being
made to the scope of disclosure.
•    MPs are not employees of the House of Commons. They are holders of an
elected public office, which is not a ‘public authority’ within the meaning
of the Act. Although the information requested is “held” by the House, it
does not give details of the activities of the House, which is the ‘public
authority’. Rather it gives details of the activities of those who are not
public authorities. The proposed disclosure creates a situation which is
tantamount to treating MPs as public authorities.
62. We have considered this last submission in the light of our findings in
paragraphs 33 to 47 above.
The legitimate interests of Ms Moffat
63. Again both parties accept that the prejudices to the rights, freedoms and
legitimate interests of Ms Moffat recognised in the Baker decision are relevant
here. These are found at paragraph 92 of the Baker decision and are set down
again here but are numbered for ease of reference:
(1)       publishing of detailed travel expenses could lead to questions in
relation to an MP’s private life;
(2)       the complexity of their lives, including travel arrangements is
influenced by family/private considerations;
(3)       such requests are a diversion from other parliamentary business;
(4)       the House has already determined that the Publication Scheme
meets the House’s obligations under FOIA;
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Appeal Numbers: EA/0006/0074/0075/0076
(5)       MPs’ consent for disclosure has only been sought for aggregate
figures for travel expense and not for more detailed disclosure;
(6)       the information sought is personal data relating to personal choice
and therefore should not be disclosed;
(7)       further disclosure of a breakdown of expenses would give rise to
opportunities for further invasion of the privacy of MPs from the
media;
(8)       MPs are already subjected to close scrutiny, a consequence of
which is that their role has become increasingly pressurised due to
increased attention from the media which detracts from them
effectively carrying out their role;
(9)       the existing rigorous scrutiny of expenses has already resulted in a
reduction in expenditure, and this is reflected in the year on year
comparative financial reports produced for the House;
(10)     a breakdown of travel by mode of transport can be provided to
monitor use of environmental friendly transport and therefore, it is
unnecessary to provide the information for individual MPs.
64. Ms Grey submits that all these interests are relevant in the Moffat case. She
further submits in relation to the first interest that in order to justify the
expenses claimed, it is likely that Ms Moffat will have to explain aspects of
her private life.
65. In relation to the second interest she argues that the House has always
maintained that it is not possible to separate out the personal from
professional elements when considering MPs' travel claims; although incurred
in a professional capacity they relate to his or her home and may benefit an
MP’s family.
66. Ms Grey raises a new interest about safety, security and an MPs’ peace of
mind which is particularly relevant in this case. Releasing further information
about how an MP travels, for example, between Westminster and his or her
constituency can help to build up knowledge of that MP’s life. This threatens
security, directly (as more is known, it may be easier to plan assaults) and also
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Appeal Numbers: EA/0006/0074/0075/0076
indirectly (because knowing more about the personal or professional life of
the object of attention may feed an obsession).
Information about spouse’s travel
67.  The Tribunal finds that information sought in relation to the Ms Moffat’s
spouse constitutes personal data in relation to that individual. The
information requested is for a global figure in relation to spouse’s travel costs
and not for any form of break down by mode of travel or even more detailed
breakdown. We need to decide whether the condition in Schedule 2 paragraph
6 is satisfied or there is a breach of the Data Protection Principles in
disclosing the information sought.
68.  Mr Pitt-Payne argues that the expenses claim is not made by the spouse: it is
made by the MP, in respect of travel expenses incurred in relation to the
spouse. As with the expenses claimed for the MP’s own travel, the claim is
met out of public funds, and can be made only because the MP holds elected
public office. There is a legitimate interest in a member of the public
receiving this information, as contributing to an understanding of the way in
which public funds are spent on MPs’ expenses.
69.  As to the question of prejudice to the rights, freedoms or legitimate interests
of the data subject (i.e. the spouse) Mr Pitt-Payne argues there is little real
prejudice here. He submits that it cannot seriously be suggested that
disclosure of the information would involve a disclosure of information about
the private or family life of the MP and their spouse. There is no information
about specific journeys made by the spouse, or times of week when the spouse
tended to travel. Nor is there any information about routes travelled or the
timing of journeys, of the kind that could give rise to a risk to the security
either of the MP or their spouse.
70.  He points out that the Commissioner is aware of the need to give proper
protection to the private and family life of an MP and their spouse, and in an
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Appeal Numbers: EA/0006/0074/0075/0076
appropriate case will refuse to require disclosure of information sought where
it would involve an unacceptable infringement of personal or family privacy:
see e.g. the Commissioner’s recent decision of 13th June 2007 relating to
disclosure of MPs’ Additional Cost Allowance (reference FS50124671).
71. Ms Grey argues that as Members’ spouses, civil partners and children under
the age of 18 are entitled to up to 15 return journeys each year between
London and their constituency and the Member’s main home claims for these
expenses should not be disclosed because:
(1)       they relate solely to the private life of the couple concerned. They
are payable in order to help MPs retain some sort of family life,
despite the travel requirements of the job and the difficult pattern
of working hours at Westminster; and
(2)        the public can properly debate whether or not MPs should be
entitled to receive these allowances on the basis of the published
details of the scheme for Members Allowances. It is possible to
take a view on whether or not this is a justified use of public
money. It is not necessary to detail the costs individually incurred
by each MP and his or her family, in order to have a sensible public
debate.
The Tribunal’s findings
72. Following the Baker decision some of the information requested, which is
identified by a tick (√) alongside the item in the Annex, is not in dispute and
we are assured by the House that this information will be disclosed. So we do
not need to consider these parts of the requests further.
73. We are being asked to consider, in effect, two further levels of disclosure of
an MP’s travel expenses other than those already disclosed in the House’s
publication scheme but in relation to a particular MP, Ms Moffat. Firstly
spouse’s expenses and secondly a level below modes of travel, which relates
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Appeal Numbers: EA/0006/0074/0075/0076
largely to numbers of journeys and their average cost. The requests also relate
to European travel.
74. We considered European travel in the Baker case. In that case the evidence
before us was that it was difficult to identify total European travel costs for
the reasons set out in paragraph 16 of that decision. In this case it is possible
to identify Ms Moffat’s European air fares. We have applied the balancing test
set out in paragraph 30 above to the circumstances of the Moffat case and find
that the legitimate interests of the requesters and members of the public
outweigh the prejudice to the rights, freedoms and legitimate interests of Ms
Moffat, similar to our finding in the Baker case, and that the information held
by the House should be disclosed.
75. We do not regard spouses’ travel expenses as a level below that already
disclosed under the Baker case. They are, in our view, at a level comparable
with the overall disclosure of an MP’s travel expenses disclosed before the
Baker case. They are the part of an MP’s overall travel expenses at this level,
without breakdown by mode of travel or further, which has not yet been
disclosed. If Ms Moffat was to claim for her own travel and that of her spouse
and family these claims would amount to the sum of what she can claim under
the House’s travel allowance schemes (excluding staff travel). We have taken
into account all the factors considered above and in the annexes in the
particular circumstances of this case in order to undertake the balancing test
set out in paragraph 30 above. We find that the legitimate interests of
members of the public outweigh the prejudice to the rights, freedoms and
legitimate interests of Ms Moffat and her spouse, particularly as the requests
at this general level do not in our view impinge on Ms Moffat’s private life.
As a result we order that the overall figure for claims for spouse’s expenses,
without breakdown, made by Ms Moffat, if any, for the years covered by the
requests should be disclosed.
76.  The other parts of the requests are at a further level of detail and are, in effect,
a drill down to a more detailed level of information on travel claims from the
current disclosures made by the House under its publication scheme. To
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Appeal Numbers: EA/0006/0074/0075/0076
repeat these elements of Ms Moffat’s travel expenses which are being
requested are:
(1)       number of trips by some modes of travel;
(2)       average cost of some individual trips by some modes of travel;
(3)       mileage for car travel;
(4)       number and cost of taxi journeys.
77. In relation the latter we accept the evidence of Mr Walker that the number and
actual cost of taxi journeys is not held by the House. Taxi journeys are
claimed by way of mileage in a similar way to car journeys. We understand
from the parties that the requesters would be satisfied by the disclosure of taxi
information by the way it is claimed by Ms Moffat and therefore we will
consider car and taxi mileage together as one category of request.
78. In relation to the cost of trips by rail we again accept the evidence of Mr
Walker that the House does not hold accurate information on individual
journeys for the years in question. We understand from Mr Pitt-Payne that the
Commissioner would be content with the disclosure of the figures held by the
House and this would be sufficient to satisfy the requesters or complainants in
these cases.
79. We therefore turn to considering whether the information requested at the
level described in paragraph 76, subject to the limitations set out in the
previous two paragraphs, should be disclosed as found by the Commissioner
in his various Decision Notices referred to above.
80. We have taken into account all the legitimate interests set out in this decision
and its annexes. We find the legitimate interests of members of the public are
weighty. This is particularly because Ms Moffat was in the top 5% of the
travel expense claimers in the years in question and the highest for at least one
of these years.
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Appeal Numbers: EA/0006/0074/0075/0076
81. In relation to the rights, freedoms and legitimate interests of Ms Moffat we
would make the following findings on what appear to be some of her strongest
interests:
(1)       She has legitimate concerns, based on actual incidents, about her
safety and security. We approach these concerns sympathetically,
both in this particular instance and more generally. Mr Walker told
us that there have been other cases in his experience where MPs
have had unwarranted attention that goes beyond awkwardness,
including cases threatening physical safety or even the lives of MPs
or their staff. Both Ms Moffat and Mr Walker said it was difficult
to be certain whether or how disclosure of further information
relating to travel could make a difference to security, but there was
a concern that it might. We are inclined to agree that disclosure of
travel details which could reveal the times, origins and destinations
of journeys, and the modes of transport likely to be used at
particular times and circumstances could be of potential use to
malevolent individuals, especially where such information was not
otherwise available to them. But such details would not be
divulged in this case as a result of the Commissioner’s decisions,
and we find that information that relates to the total number or
average costs of journeys can be distinguished from information
giving details about particular journeys. While the latter could give
rise to a credible increase in security risks, the former is much less
likely to do so and we find that the information in the generalised
form ordered to be disclosed by the Commissioner is unlikely to
worsen security risks or concerns;
(2)       Ms Moffat is concerned that disclosure of further information
about her travel expenses would inevitably lead to further
questioning about her choices of travel, and the reasons for and
costs of particular journeys. Again we distinguish the generalised
information that would fall to be disclosed if the Commissioner’s
Decision Notices are upheld, from the more specific information
that is not at issue concerning particular journey details. It was put
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Appeal Numbers: EA/0006/0074/0075/0076
to us that questioning could be aggressive and persistent and that
the need to deal with it would effectively leave the burden of
further disclosure with the Member of Parliament, rather than with
the House to whom FOIA duties applied. It was also put to us that
it would be difficult for MPs to maintain a clear distinction
between the private considerations that influenced a particular
journey choice, and the public duties that were a necessary element
of making a claim. While these considerations would have more
weight if there was a request for details of particular journeys, we
find them of limited weight at the level of aggregation and in the
form of disclosure which the Commissioner has ordered in this
case.
82. Although under the test in paragraph 6 of Schedule 2 DPA we are only
required to consider the rights, freedoms and legitimate interests of the
individual data subject, namely Ms Moffat, Ms Grey invites us not to remove
from our minds the overall context of this case and the likely far reaching
impact on the position of other MPs if we should order disclosure of the
requested information. Mr Pitt-Payne says, well that is the way the House
chooses to implement FOIA, not what the legislation requires. We agree with
Mr Pitt –Payne, although we also understand the desire of the House to settle
on a form of disclosure which would not be open to continual amendment as
individual FOIA requests are made and new possibilities for extending
disclosure requirements arise.
83.  Taking into account all the above considerations and submissions and
whether disclosure is necessary for the purposes of the legitimate interests of
the requesters and members of the public balanced against the prejudice to the
rights and freedoms or legitimate interests of Ms Moffat we find that the
legitimate interests of the requesters and members of the public outweigh the
prejudice to the rights, freedoms and legitimate interests of Ms Moffat.
84. The case does not require us to consider any wider or further disclosure.
However we would observe that although we are unable to bind future
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Appeal Numbers: EA/0006/0074/0075/0076
Tribunals we would hope that the general indications we have given
concerning the distinction between disclosure of particular journey details,
and information which provides an understanding of the numbers of journeys
and average costs by mode of transport will provide a helpful guideline in
relation to any future such cases should they arise.
85. As set out earlier in this decision we are aware that the disputed information
does not completely satisfy the requests. Mr Walker gave evidence that not all
the information requested is held by the House. The Commissioner accepted
after consultation with some of the requesters that the information provided to
the Tribunal in confidence would meet the requests in relation to information
held by the House. We therefore find that the disclosure of the disputed
information provided to the Tribunal in confidence will satisfy the requests
and that no further information need be disclosed.
Signed:
John H Angel
Information Tribunal Chairman
Dated 9 August 2007
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Appeal Numbers: EA/0006/0074/0075/0076
Annex
Anne Moffat Travel Requests: Information already in the public domain (√ = already
published, * = not held) x = not disclosed.
EA/2006/0074 (2003/04) EA/2006/0075 (2003/04) EA/2006/0076 (2002/03
1
X number of rail
tickets London-
Edinburgh,
Edinburgh-London at
Y£s:
1
Total average
cost of each
mode of
transport
(specifically
plane, rail, rail
sleeper and taxi)
X
1
X number of rail
tickets London-
Edinburgh,
Edinburgh-London at
Y£s:
• Number of
tickets
X
• Number of
tickets
X
• Total for
rail travel
V
• Total for
rail travel
V
2
total cost X airline
tickets London-
Edinburgh,
Edinburgh-London at
Y£s:
2
The breakdown
should
specifically
identify the total
number of trips
between London
and East Lothian
and the average
cost of journeys
between these
two locations.
X
2
total cost X airline
tickets London-
Edinburgh,
Edinburgh-London at
Y£s:
• Number of
tickets
X
• Number of
tickets
X
• Total for
Air travel
V
• Total for
Air travel
V
3
Total cost, total
mileage and cost of
car/petrol allowance
claimed:
3
Total travel
expense incurred
in travelling
within East
Lothian/ the
Lothians on
constituency
business but not
the expense
incurred on
individual
journeys.
X
3
Total cost, total
mileage and cost of
car/petrol allowance
claimed:
• Total
mileage
X
• Total
mileage
X
• Total cost
V
• Total cost
V
4
Total number of taxi
journeys
*
4
Total cost
X
4
Total number of taxi
journeys
*
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Appeal Numbers: EA/0006/0074/0075/0076
5
Total cost of taxi
journeys
*
claimed for
travel involving
a spouse, if
applicable, and
in particular the
cost, if any,
involving a
spouse travelling
between London
and East
Lothian.
5
Total cost of taxi
journeys
*
6
Total cost of travel
claimed for spouse
X
6
Total cost of travel
claimed for spouse
X
7
All other travel
expense claimed:
5
Total cost for all
other travel not
involving trips
between London
and East
Lothian.
X
7
All other travel
expense claimed:
• EU travel
X
• EU travel
X
General points on availability:
Already in the public domain:
•    Total expenditure under each of the allowances available to MPs including the
travel allowance (which includes the total for EU travel)
•    Breakdown of the travel allowance into modes of transport (the ‘Baker’
details)
Not in the public domain:
•    Number of tickets, journey start points or destinations, number of miles
claimed for, spouse and family travel costs, details of EU travel (but the cost
of EU travel in 2006/07 will be separately reported in October 2007 as part of
the House’s next general publication)
32
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