Information Commissioner GIA 731 2010

JurisdictionUK Non-devolved
JudgeJudge K Mullan
Judgment Date14 June 2012
Neutral Citation2012 UKUT 263 AAC
Subject MatterInformation rights
RespondentMagherafelt District Council
CourtUpper Tribunal (Administrative Appeals Chamber)
Docket NumberGIA 731 2010
AppellantInformation Commissioner
The Information Commissioner v Magherafelt District Council

IN THE UPPER TRIBUNAL (ADMINISTRATIVE APPEALS CHAMBER)

Upper Tribunal Case No: GIA/731/2010

PARTIES

The Information Commissioner (Appellant)

and

Magherafelt District Council

APPEAL AGAINST A DECISION OF A TRIBUNAL

DECISION OF THE UPPER TRIBUNAL

JUDGE MULLAN

DECISION BY THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

The DECISION of the Upper Tribunal is to dismiss the appeal by the appellant.

The decision of the First-tier Tribunal (General Regulatory Chamber) (Information Rights) dated 3 February 2010 under file reference EA/2009/0047 does not involve an error on a point of law. The appeal is dismissed.

This decision is given under section 11 of the Tribunals, Courts and Enforcement Act 2007.

REASONS

Introduction

1. In this case the Appellant is the Information Commissioner and the Respondent is Magherafelt District Council.

2. On 31 March 2010 the registrar wrote to the individual who had originally sought disclosure of the information which is the subject of the appeal to the Upper Tribunal, providing details of the appeal and indicating that it was open to that individual, under rule 9(3) of the Tribunal Procedure (Upper Tribunal) Rules 2008 to apply to be added as a party to the appeal, and if that course was to be adopted, setting out the requirements for application and service of response. There was no formal response by the Complainant to this invitation and to a further reminder issued on 21 June 2010. On 20 July 2010 the registrar spoke to the individual in a telephone conversation and provided details of the procedural aspects of the appeal to the Upper Tribunal. The individual confirmed that he did not wish, at that stage, to be added as a party to the proceedings.

Background to the appeal to the First-tier Tribunal

3. The background to the appeal to the First-tier Tribunal was set out in paragraphs 2 to 14 of the Tribunal’s decision, as follows:

‘2. By email dated 22 February 2008 the complainant, a local journalist, made a request for information to the Council in the following terms –

“How many members of council staff have been disciplined in the last three years?

Give details of the discipline.

How many members of council staff have been suspended from their posts in the last three years?

List the reasons why the person was suspended.

How many members of staff have been dismissed from their posts in the last three years?

Give reasons why the person was dismissed.

Personal information about any individual is not required. ”

3. The Council replied to the requester by email dated 19 March 2008 as follows –

“1. 15 members of staff, currently employed, were disciplined during the period 1 April 2003 – 31 March 2007.

3. No members of staff were suspended during the above period.

5. 3 members were dismissed.”

4. The Council further advised the requester that it would not disclose details of the disciplinary action taken against the 15 members of staff or the reasons for the 3 dismissals in accordance with section 40 FOIA (absolute exemption with regard to personal data).

5. The requester asked for an internal review of the Council’s decision by email dated 19 March 2008. The Council responded on 16 April 2008 upholding its decision to withhold the disputed information under section 40(2) FOIA. In addition, the Council asserted that the disputed information was also exempt under section 38 FOIA (qualified exemption in relation to health & safety).

The complaint to the IC

6. The requester complained to the Respondent, the IC, by email dated 5 June 2008.

7. By letter dated 13 November 2008 the Council provided the IC with a document consisting of details of the disciplinary action taken against the 15 employees. This is referred to in the Decision Notice and throughout this Tribunal’s decision as “the original schedule”. The original schedule contained the following information: the date of the disciplinary action; the gender, job title and department of the employee concerned; the penalty issued and the reason for the action taken.

8. Shortly afterwards, the Council provided the IC with a revised schedule containing details of the disciplinary action taken against the 15 employees which, at that time, it said it was prepared to release to the requester. This schedule is referred to in the Decision Notice and throughout this Tribunal’s decision as “the summarised schedule”. The summarised schedule contained only the penalty issued and reason for the action taken. It did not include the date of the disciplinary action or the gender, job title and department of the employee concerned.

9. Shortly thereafter the Council became aware of a House of Lords authority, Common Services Agency v Scottish Information IC [2008] UKHL 47; [2008] 1 WLR 1550 (“the CSA case”) and, after taking legal advice and in light of this case, it decided that it was no longer prepared to release the summarised schedule.

10. The IC served a Decision Notice dated 19 May 2009 in accordance with section 50 FOIA. The IC decided that the information contained in the original schedule was personal data. Further, the IC considered that disclosure of the original schedule would contravene the First Data Protection principle and that it was therefore exempt under section 40(2) FOIA.

11. However, the IC decided that the information contained in the summarised schedule was “fully anonymous” and did not therefore amount to personal data. He therefore found that the summarised schedule was not exempt under section 40(2) FOIA.

12. The IC went on to consider whether the summarised schedule was exempt under section 38(1) FOIA; he concluded that it was not.

13. In addition the IC found that in failing to cite the specific subsection of section 40 FOIA relied upon or to explain why the exemption applied the Council had contravened sections 17(1)(b) and 17(1)(c) FOIA respectively. Further, in failing to cite section 38 FOIA in its refusal notice, the Council had contravened section 10(1) FOIA.

14. In light of the above, the IC ordered the Council to disclose a copy of the summarised schedule to the requester.’

The appeal to the First-tier Tribunal

4. The Council’s grounds of appeal were summarised by the First-tier Tribunal as follows:

‘1. The IC erred in deciding that the summarised schedule did not contain personal data.

2. The summarised schedule did not fall within the scope of the request.

3. The IC erred in criticising the Council for failing to disclose the summarised schedule by way of informal resolution.

4. The IC erred in deciding that the Council had contravened section 17 FOIA by failing to specify which subsection of section 40 FOIA it relied upon.

5. The IC erred in deciding that the Council had contravened section 17(1) FOIA by failing to cite section 38 FOIA in its refusal notice.

6. The IC erred in concluding that the Council had contravened section 10(1) FOIA.’

5. The First-tier Tribunal adopted these grounds as representing issues which it was required to address ‘…adding only that, if it decided under ground 1 that the summarised schedule did contain personal data, it would need to proceed to consider whether disclosure would breach the Data Protection Principles and thereby fall within the absolute exemption in section 40(2) of FOIA.’

What did the First-tier Tribunal decide?

The evidence before the First-tier Tribunal

6. The First-tier Tribunal summarised the evidence which was before it at paragraphs 22 to 26 of its decision, as follows:

‘22. The documentary evidence before the Tribunal consisted of the original and the summarised schedules, the correspondence between the parties and a witness statement from Mr Tohill, the Director of Finance and Administration of the Council. The summarised schedule, being the disputed information, was not part of the open bundle or considered in the public part of the hearing. Mr Tohill gave his evidence in public, save...

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