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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 >> Turcotte v Information Commissioner and London Borough of Camden [2008] UKIT EA_2007_0129 (12 June 2008)
URL: http://www.bailii.org/uk/cases/UKIT/2008/EA_2007_0129.html
Cite as: [2008] UKIT EA_2007_129, [2008] UKIT EA_2007_0129
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Information Tribunal Appeal
Number: EA/2007/0129
Information Commissioner’s
Ref: FS50115331
Heard at Field House, London,
EC4
Decision Promulgated
On 14 May 2008
12 June
2008
BEFORE
Chairman
ROBIN CALLENDER SMITH
and
ROSALIND TATAM
JENNI
THOMPSON
Between
ANTHONY
TURCOTTE
Appellant and INFORMATION
COMMISSIONER
Respondent
and
LONDON BOROUGH OF
CAMDEN
Additional Party
Representation:
For the Appellant:
Mr A Turcotte (in person)
For the Respondent: Mr Gerry Facenna (Counsel instructed by
the Information
Commissioner)
For the Additional Party: Ms Zoe Rowland (Freedom of
Information Officer, London
Borough of Camden) |
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Appeal Number: EA/2007/0129 |
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The Tribunal upholds the decision
notice dated 12 November 2007 and dismisses the
appeal. |
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Appeal Number:
EA/2007/0129
Reasons for Decision
Introduction
1. This is an appeal under
Section 57 of the Freedom of Information Act 2000 by Mr Anthony Turcotte,
an unrepresented Appellant, against a decision dated 12 November 2007 by
the Information Commissioner that the London Borough of Camden’s decision
not to supply information to the Appellant under Section 40 (2) of the
Freedom of Information Act 2000 – and the Council’s reasoning for doing
this – was correct. The Information Commissioner (IC) is the Respondent in
the appeal and the London Borough of Camden (LBC) has been joined as an
additional party.
2. At the appeal hearing
the representative for the London Borough of Camden, who had adopted the
Information Commissioner’s position in relation to the appeal, attended as
the hearing concluded and took no part in the hearing itself.
The request for information
3. As part of his interest
in ensuring Succession Rights for partners on the death of a tenant and in
establishing tenants’ networks, on 27 December 2005 Mr Anthony Turcotte
asked the London Borough of Camden for a copy of all Community Housing
Group (CHG) properties under the local authority.
4. In a further request on
29 December 2005 he made a second request asking various questions in
relation to evictions. Specifically he wanted to know how many tenants
were evicted in total in 2000/2003, the names and CHG addresses of these
tenants, the dates of eviction and the reasons for eviction. Mr Turcotte
was not able to request information directly from the CHG under the
Freedom of Information
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Appeal Number: EA/2007/0129 |
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Act because CHG is not a public
authority within the terms of the Statute.
5. On 6 January 2006 the
Council responded to request 1 refusing to supply the information by
applying section 40(3) of the Act. The Council stated the information
requested constituted personal data within the definition of the Data
Protection Act 1998 (the "DPA"). Disclosure of such information would
contravene the data protection principles and section 10(a) of the DPA
(right to prevent processing likely to cause damage or distress). In
relation to request 2, in the same letter, it stated it did not hold the
information and it would not be practical to obtain it.
6. The Council put forward
public interest arguments explaining its decision, namely that the first
data protection principle is that personal data must be processed fairly
and lawfully. In this case the Council maintained that the information was
such that the relevant people (the data subjects) would not expect the
information to be disclosed.
7. The Council further
relied on the sixth principle, that data shall be processed in accordance
with the rights of the data subjects. In this case the Council maintained
that the disclosure of information requested would contravene section 11
(the right to prevent processing for the purposes of direct marketing). On
balance, it considered that disclosure to a third party of the personal
information would constitute or could facilitate an unwarranted invasion
of privacy.
8. The Appellant asked the
Council to review its refusal to provide the information on 27 January
2006. On 6 March 2006 the Appellant made a further request (Request 3).
This was for copies of any and all correspondence between the London
Borough of Camden and Community Housing Group, in relation to CHG's
refusal to supply a copy of its list of tenants to the
Appellant.
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Appeal Number: EA/2007/0129 |
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9. The Council responded to
this third request in their review decision letter dated 17March 2006,
where the Council informed the Appellant his review was partly successful.
The reason for its decision is as follows:
i) In relation to request 1,
the copy of all CHG properties
under the Council's authority,
the panel confirmed that due to previous advice received by them, it would
be appropriate to release details of the properties concerned but not the
identity of the occupiers.
ii) In relation to request 2 the
panel agreed with the reasons and refusal in their letter of 6 January
2006.
iii) The panel considered request
3, copy correspondence, to be a new request and explained that this would
be processed separately.
10. On 10 April 2006 the
Council supplied the Appellant with a list of CHG properties in Camden,
but redacted the list to remove flat and house numbers. The Council
explained that the redaction was necessary to fulfil the Council’s
obligations under the 1998 Act: the Appellant had indicated that he
intended to use the information to contact CHG Tenants by mail in order to
form a tenants association and the Council concluded that disclosure of
the full address information would therefore breach the 1998 Act, in
particular section 11 (the right to prevent processing for the purposes of
direct marketing).
11. The Appellant appealed
to the Commissioner on 20 April 2006. The only aspect of the information
requests specifically raised in the Appellant’s letter to the Commissioner
was the Council’s redaction of the address information (Request
1).
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Appeal Number: EA/2007/0129 |
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The Complaint to the Information
Commissioner
12. On 6 August 2007 the
Commissioner communicated a provisional view to the Appellant, setting out
the requests, the parties’ arguments, and the Commissioner’s provisional
reasoning, which was to uphold the Council’s decision to withhold
information. In the light of that view, the Commissioner invited the
Appellant to consider withdrawing his request. The Appellant indicated
that he did not agree with the Commissioner’s provisional view, however,
and asked for a formal decision to be taken.
13. Ultimately, the
Commissioner’s decision was that he agreed with the Council’s decision to
provide only redacted information, on the basis of the exemption in
section 40(2) of the 2000 Act and the fact that disclosure of the full
information would breach the 1998 Act. The Commissioner’s reasoning is set
out in paragraphs 20 to 28 of the Decision Notice. In summary, the
Commissioner concluded that:
a. the house number of an
individual CHG property, taken together with electoral roll information
and the qualification criteria for housing by CHG (which may include
homelessness or other significant housing needs) would allow individuals
to be identified and would enable those individuals to be identified as
members of a group. The full information therefore amounted to personal
data within the meaning of the 1998 and 2000 Acts;
b. the information being
requested was not a list of all Council-owned properties but a focussed
subset of properties within the Council’s area (i.e. those owned by CHG)
that would enable action to be taken in relation to the individual
occupiers of those properties;
c. those individuals
who had been housed by CHG would have no expectation that the personal
information held by the Council
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Appeal Number: EA/2007/0129
would be provided to third
parties in that way, and would expect that the information would only be
used by the Council in relation to the administration of the properties in
question;
d. it would therefore be
unfair and unlawful for the information to be released without redaction
and would be in breach of the first data protection principle;
and
e. the exemption in section
40(2) of the 2000 Act (which is an absolute exemption) therefore
applied.
Appeal to the Tribunal
14. The Appellant’s grounds
of appeal are set out in a letter dated 4 December 2007 accompanying the
Notice of Appeal.
15. That letter contains a
large amount material that is not directly relevant to the issues raised
by this appeal against the Commissioner’s decision, or to the Council’s
handling of the original information request.
16. Insofar as the letter
referred to matters the Appellant raised with the Council relating to the
eviction of tenants or their partners, the Council had indicated that it
did not hold the information and it would not be practicable for it to
obtain the information. It became apparent during the course of the appeal
that the Appellant was not in fact asking for that information to be
supplied to him, but only that the Council should obtain the information
from CHG in order to investigate whether any tenant had been evicted
illegally. At all events, those matters did not form part of the
Appellant’s appeal to the Commissioner. The 2000 Act is concerned with the
right to obtain information held by a public authority but it cannot be
used to require a public authority to obtain and act upon information that
it does not hold. |
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Appeal Number: EA/2007/0129 |
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17. The grounds of appeal
refer to sections 10 and 11 of the 1998 Act. However, while those sections
were referred to by the Council in its response to the original
information request, the Commissioner’s reasoning in the Decision Notice
did not rely on those sections in upholding the decision to redact the
address information and thus these Sections were not part of the Appeal
before the Tribunal.
18. The Commissioner’s
position (supported by the London Borough of Camden) was that the
provision of full addresses of all the CHG properties in the Council’s
area, when taken together with publicly-available electoral roll
information, would allow individual occupiers to be
identified.
19. Moreover, because the
qualification criteria for housing by CHG included homelessness or
significant housing needs, the data would permit individuals to be
identified as part of a distinct—and potentially vulnerable—group. It
would allow specific action to be taken in relation to that distinct group
of individuals.
20. The Commissioner’s view
was that, regardless of the Appellant’s particular intentions in relation
to the data, which may be benign and public spirited, the individuals
concerned would not expect their personal data to be released in that way,
or to be used for any purpose other than the Council’s administration of
its statutory housing duties.
Statutory
Provisions
21. Section 40(1)-(3) of the
2000 Act provide:
‘40 — Personal
information
(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—
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Appeal Number: EA/2007/0129
(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 (d) 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
(ii) section 10 of that Act
(right to prevent processing likely to cause damage or distress),
and
(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 33 A (1) of the Data Protection Act 1998 (which
relate to manual data held by public authorities) were
disregarded.’
22. Section 1(1) of the 1998
Act defines ‘personal data’ as follows (the definition also applies to
section 40 of the 2000 Act):
“data which relate to a living individual who can be
identified—
(a) from those data, or
(b) from those
data and other information which is in the possession of, or is likely to
come into the possession of, the data controller…”
23. The first data
protection principle (Schedule 1, Part I of the 1998 Act) is
that:
“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…” |
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Appeal Number: EA/2007/0129 Preliminary Issue at the Oral
Hearing
24. Mr Turcotte sought to
introduce other issues in relation to succession rights and extend the
ambit of the appeal to cover the Nominations Agreement information and
issues that, although related to material in the Agreed Bundle, had not
yet been considered by the Information Commissioner.
25. Mr Facenna, on behalf of
the Information Commissioner, argued that – if the Tribunal took this
route – it would be leapfrogging the Information Commissioner and taking a
decision itself on matters yet to be considered by the London Borough of
Camden which was several stages away before coming to the Information
Commissioner for consideration.
26. On this preliminary
issue the Tribunal decided that it could not extend this appeal to
encompass these new issues because no substantive decisions had been taken
in respect of them. To seek to treat them as part of the appeal would have
been to usurp the function of the Information Commissioner in respect of
what might become before him in the future. It was not a proper function
of the Tribunal to do this and it would have been both unfair and unjust –
as well as well unlawful – to do so.
Legal submissions and analysis
27. Mr Facenna repeated the
Information Commissioner’s views and
pointed out that the Appellant
had not challenged the legal basis of the
decision under appeal. No witness
evidence had been lodged by the
Appellant. To disclose the full
addresses of the CHG properties in LB
Camden’s area – when taken with
electoral role information – would
allow individual occupiers to be
identified. Because the qualification
criteria for housing by CHG
included homelessness or significant
housing needs, the data would
permit individuals to be identified as
part of a distinct – and
potentially vulnerable -group. It would allow
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Appeal Number: EA/2007/0129 |
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specific action to be taken in
relation to that distinct group of individuals.
28. Mr Turcotte urged the
Tribunal to consider information he had been able to gain – on apparently
these points – from the Housing Corporation and from Westminster Council
(which was presented as part of his documentation in the
appeal).
29. He was perplexed
because, if he could obtain this information from other bodies, he could
not understand why LB Camden (with the support of the Information
Commissioner) would not also release this type of information to him. If
he was given the information he would be able to write to this identified
group and ask them if they wished to give him a mandate to act on their
behalf.
30. The Tribunal pointed out
to him that giving him that information would be “publishing” it to him.
His response was: “I was quite shocked [in one of the documents disclosed
on his enquiries] when I saw my address. But I want to use the information
responsibly. I am not asking that it is “published” so that it is open for
all. That is not my purpose. I only want it for the purpose of seeing
whether we can garner support and then I would destroy it.”
Conclusion
31. The Tribunal is
satisfied to the required standard that the Information Commissioner’s
decision is correct. Revelation by the London Borough of Camden of the
information sought by the Appellant would allow identification of a
vulnerable group of individuals in breach of Section 40 of the Freedom of
Information Act 2000 by reference to Section 1(1) of the Data Protection
Act1998.
32. Mr Turcotte, in his
remarks quoted in the Paragraph 30 above, accepted this. He feels that –
given his desire to protect the housing and succession rights of certain
tenants in Camden – he could receive
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Appeal Number: EA/2007/0129
this information “responsibly”
and, that because of that, it should be issued to him. That, patently,
would be outside the law.
33. The Tribunal can
understand why Mr Turcotte is perplexed when bodies like the Housing
Corporation and Westminster Council seem so unguarded in response to
similar information requests made by him. The fact is, however, that the
Information Commissioner made the correct decision in relation to the LB
Camden’s actions. What other public bodies have chosen to reveal in
circumstances that might be regarded as outside the current legislation is
not a matter for this Tribunal.
34. Our decision is unanimous.
35. There is no order as to
costs. Signed
Robin Callender Smith Deputy
Chairman
Date 12 June 2008 |
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