Important Information that Needs Publicising. Commissioner’s Office Decision Notice Pursuant to the Un-publicised Removal of United Kingdom Judge Alison McKenna. By Campaigner on Vexatious Freedom of Information Exemptions Alan M Dransfield

Reference: FS50802258


Freedom of Information Act 2000 (FOIA)
Decision notice
Date: 6 June 2019
Public Authority: Information Commissioner’s Office
Address: Wycliffe House
Water Lane
Wilmslow
Cheshire SK9 5AF
Note: This decision notice concerns a complaint made against the
Information Commissioner (‘the Commissioner’). The
Commissioner is both the regulator of the FOIA and a public
authority subject to the FOIA. She is therefore under a duty as
regulator to make a formal determination of a complaint made
against her as a public authority. It should be noted, however,
that the complainant has a right of appeal against the
Commissioner’s decision, details of which are given at the end of
this notice. In this notice the term ‘ICO’ is used to denote the
ICO dealing with the request, and the term ‘Commissioner’
denotes the ICO dealing with the complaint.
Decision (including any steps ordered)

  1. The complainant has requested information associated with the
    Information Commissioner’s categorisation of applications for a decision
    under section 50(1) of the FOIA from Mr Alan Dransfield as frivolous or
    vexatious under section 50(2)(c). The ICO confirmed it does not hold
    some of the information requested. It has refused to disclose the
    information it does hold under section 40(2) of the FOIA as it considers
    this to be the personal data of a third person.
  2. The Commissioner’s decision is as follows:
    On the balance of probabilities, the ICO does not hold information
    falling within the scope of part (ii) of the request and has complied
    with section 1(1)(a) of the FOIA in respect of this part.
    • The recorded information falling within the scope of parts (i) and
    (iii) of the request to which the ICO has applied section 40(2) is
    the personal data of a third person and is exempt from release
    under this exemption.
  3. The Commissioner does not require the ICO to take any remedial steps.
    Request and response
  4. On 22 August 2018, the complainant wrote to the ICO and requested
    information in the following terms:
    “…If true, this would be a blanket ban on accessing the Commissioner
    and the Tribunal system. I therefore ask for (i) the email
    correspondence between Mr Dransfield and the Commissioner
    concerning the effective ban imposed on Mr Dransfield (including any
    warnings that were made) (ii) any minutes or internal correspondence
    discussing the basis for implementing this decision and (iii) the
    contents of s.50 complaints that were rejected under s.50(2)(c). The
    reason I ask is that I am genuinely interested in how the ICO would
    reach such a decision, given the extreme implications of it.
    Given the voluminous material that Mr Dransfield publishes on social
    media, and the fact that he is well known as the complainant in the
    lead case in the Upper Tribunal concerning vexatiousness, it is highly
    doubtful that s.40 would apply to any of the information requested.”
  5. On 17 September 2018 the ICO responded. It confirmed it holds
    information within the scope of parts (i) and (iii) of the request and that
    it does not hold information within the scope of part (ii).
  6. The ICO withheld the information it holds under section 40(2) of the
    FOIA because it is personal data and disclosure would breach one of the
    data protection principles; namely the principle under Article 5(1)(a) of
    the General Data Protection Regulation (GDPR). The ICO provided some
    general information with regard to the subject of the request ie its
    application of section 50(2)(c) in a particular case and generally.
  7. The ICO provided a review on 15 October 2018. It upheld its original
    position.
    Scope of the case
  8. The complainant contacted the Commissioner on 14 November 2018 to
    complain about the way his request for information had been handled.
  9. The Commissioner’s investigation has focussed on whether the ICO
    holds information falling within the scope of part (ii) of the complainant’s
    request and whether it can rely on section 40(2) to withhold information
    it does hold that falls within the scope of parts (i) and (iii) of the
    request.
    Reasons for decision
    Background
  10. Under section 50(1) of the FOIA any person may apply to the
    Commissioner for a decision whether, in any specified respect, a request
    for information he or she has made to a public authority has been dealt
    with appropriately.
  11. Section 50(2)(c) says that the Commissioner shall make a decision
    unless it appears to her that the application for a decision is frivolous or
    vexatious.
  12. The Commissioner relied on section 50(2)(c) with regard to applications
    submitted to her by Mr Dransfield, referred to in the request.
    Section 1 – general right of access to information held by public
    authorities
  13. Under section 1(1) of the FOIA anyone who requests information from a
    public authority is entitled (a) to be told if the authority holds the
    information and (b) to have the information communicated to him or her
    if it is held and is not exempt information.
  14. The complainant considers that the ICO holds information falling within
    the scope of part (ii) of his request, which was for “any minutes or
    internal correspondence discussing the basis for implementing this
    decision”.
  15. In its submission to the Commissioner, the ICO has explained that any
    documents created in the handling of its casework are held on its
    electronic casework management system (CMEH). In order to answer
    this part of his request the ICO says it performed searches of CMEH, and
    specifically reviewed all the documents and records held on the cases
    raised by Mr Dransfield that were subject to its application of section
    50(2)(c) in this instance. The ICO says it also undertook consultations
    with the author of the section 50(2)(c) letter and the case officer and
    other department group managers who may have been involved in the
    handling of these cases. The ICO requested that they conduct searches
    for any information in scope of the request not held on CMEH. This
    would include their official email accounts and any other locations that
    they store information, such as Sharepoint.
  16. The ICO has confirmed that searches located no information that fell in
    scope of the request and no information falling in scope of the request
    was returned by any of the individuals involved in handling these
    complaints.
  17. The ICO also confirmed that further searches had been conducted at
    internal review stage by the reviewer, the Principal Adviser in its FOI
    Complaints and Appeals department, including a review of the material
    held on the request file and a meeting with the Head of FOI Complaints
    and Appeals. The review was satisfied that no information falling in
    scope of part (ii) of the request is held.
  18. The Commissioner considers that the ICO undertook thorough and
    appropriate searches for any information it might hold that falls within
    the scope of part (ii) of the request. She is satisfied, on the balance of
    probabilities, that the ICO does not hold any information relevant to this
    part.
    Section 40 – personal data
  19. Section 40(2) of the FOIA says that information is exempt from
    disclosure if it is the personal data of third persons, ie someone other
    than the applicant, and a condition under either section 40(3A), 40(3B)
    or 40(4A) is also satisfied.
  20. The first step for the Commissioner is to determine whether the withheld
    information constitutes personal data as defined by the Data Protection
    Act 2018 (‘DPA’).
    Is the information the personal data of a third person?
  21. Section 3(2) of the DPA defines personal data as: ‘any information
    relating to an identified or identifiable living individual’.
  22. The two main elements of personal data are that the information must
    relate to a living person and that the person must be identifiable.
  23. An identifiable living individual is one who can be identified, directly or
    indirectly, in particular by reference to an identifier such as a name, an
    identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental,
    economic, cultural or social identity of the individual.
  24. Information will relate to a person if it is about them, linked to them,
    has biographical significance for them, is used to inform decisions
    affecting them or has them as its main focus.
  25. The ICO has provided the Commissioner with a copy of the information
    it is withholding under section 40(2). With regard to part (i) of the
    request the information comprises:
    • correspondence from the ICO to Mr Dransfield
    • internal correspondence; and
    • correspondence from Mr Dransfield to the ICO, the Commissioner
    and the First Tier Tribunal (Information Rights).
  26. With regard to part (iii) of the request the information comprises
    correspondence between Mr Dransfield, other public authorities and the
    ICO associated with FOI complaints that he submitted to the ICO under
    section 50 of the FOIA.
  27. The Commissioner is satisfied that all this information is Mr Dransfield’s
    personal data for the reasons given at paragraphs 23 and 24. As the
    ICO has noted in its submission to her, the requested information refers
    specifically to Mr Dransfield by name and relates to correspondence
    between him and the ICO, and the contents of his section 50 complaints
    to the ICO under the FOIA.
  28. The fact that information constitutes the personal data of identifiable
    living individuals does not automatically exclude it from disclosure under
    the FOIA. The second element of the test is to determine whether any of
    the conditions under sections 40(3A), 40(3B) or 40(4A) have been met.
    Is a condition under section 40(3A) satisfied?
  29. The condition under section 40(3A)(a) of the FOIA is that disclosure
    would contravene any of the data protection principles. The ICO
    considers that disclosure would contravene principle (a) under Article
    5(1) of the GDPR.
  30. Article 5(1)(a) of the GDPR states that: “Personal data shall be
    processed lawfully, fairly and in a transparent manner in relation to the
    data subject”.
  31. In the case of a FOIA request, personal data is processed when it is
    disclosed in response to the request. This means that the information
    can only be disclosed if to do so would be lawful, fair and transparent.
  32. In order to be lawful, one of the lawful bases listed in Article 6(1) of the
    GDPR must apply to the processing. It must also be generally lawful.
  33. The lawful basis most applicable is GDPR basis 6(1)(f) which states:
    “…processing is necessary for the purposes of the legitimate interests
    pursued by the controller or by a third party except where such
    interests are overridden by the interests or fundamental rights and
    freedoms of the data subject which require protection of personal data,
    in particular where the data subject is a child”.
  34. In considering the application of Article 6(1)(f) in the context of a
    request for information under the FOIA it is necessary to consider the
    following three-part test:
    i) Legitimate interest test: Whether a legitimate interest is being
    pursued in the request for information
    ii) Necessity test: Whether disclosure of the information is
    necessary to meet the legitimate interest in question
    iii) Balancing test: Whether the above interests override the
    legitimate interest(s) or fundamental rights and freedoms of the
    data subject.
  35. The Commissioner considers that the test of ‘necessity’ under stage (ii)
    must be met before the balancing test under stage (iii) is applied.
    Is a legitimate interest being pursued?
  36. In considering any legitimate interest(s) in disclosing the requested
    information under the FOIA, the Commissioner recognises that such
    interest(s) can include broad general principles of accountability and
    transparency for their own sakes, as well as case-specific interests.
  37. Further, a wide range of interests may be legitimate interests. They can
    be the requester’s own interests or the interests of third parties, and
    commercial interests as well as wider societal benefits. They may be
    compelling or trivial, but trivial interests may be more easily overridden
    in the balancing test.
  38. The information in this case has been summarised above. In his request,
    the complainant has expressed his interest in the information – and the
    ICO’s reliance on section 50(2) of the FOIA in a particular case – as a
    genuine interest “… in how the ICO would reach such a decision, given
    the extreme implications of it.” As such, although appearing to be a
    private interest of the complainant’s, the Commissioner considers the interests is legitimate. Is disclosure necessary to meet the legitimate interests?
  39. ‘Necessary’ means more than desirable but less than indispensable or
    absolute necessity. Accordingly, the test is one of reasonable necessity
    and involves consideration of alternative measures which may make
    disclosure of the requested information unnecessary. Disclosure under
    the FOIA must therefore be the least intrusive means of achieving the
    legitimate aim in question.
  40. In its submission to the Commissioner, the ICO has confirmed that it
    does not consider that disclosure is necessary in this case. It considers
    that disclosing the third party’s correspondence with the ICO and the
    contents of his section 50 complaints would be overly intrusive and
    unnecessary to fulfil the legitimate interest in disclosure.
  41. The ICO has noted that the test is one of ‘reasonable necessity’ which
    involves considering alternative measures; disclosure would not be
    necessary if the legitimate aim could be achieved by something else.
    The ICO notes that in its response to the complainant it provided an
    explanation as to the circumstances of the specific case associated with
    Mr Dransfield. It considers it is difficult to see why providing this
    explanation, along with the more general guidance the ICO publishes in
    respect of the FOIA, would be insufficient to meet the legitimate interest
    in respect of the requested information.
  42. The ICO considers that disclosing the actual correspondence with Mr
    Dransfield would add little of value to the explanation provided and
    would be unnecessarily intrusive into the third party’s private life. In
    particular, it notes that the information requested relates to
    correspondence and complaints raised with the ICO as a private
    individual. The ICO considers that the individual in question would have
    communicated with the ICO with an expectation of confidence and he
    would not expect their correspondence to be disclosed in response to a
    request made under the FOIA.
  43. To a large degree the Commissioner considers that the complainant’s
    interests have been satisfied through the general information the ICO
    provided in response to his request. In correspondence to the
    Commissioner, however, the complainant has argued that “The
    derogation from open justice always requires very strong justification,
    as the authorities make clear.” The ICO has also acknowledged that
    there is a wider interest in the circumstances that could lead to
    individuals being prevented from accessing the ICO’s services [through
    section 50(2)(c)], and in being open and transparent about the reasons as to why this decision was taken.
  44. In its submission the ICO has referred to its general published guidance
    but the Commissioner has not been able to find any published guidance
    on section 50(1) and 50(2) specifically. Because it is not certain that
    the legitimate interests in this case have been fully satisfied by the
    information the ICO provided in its response to the complainant, the
    Commissioner considers that disclosing the specific information
    requested would be necessary to meet the legitimate interests in this
    case.
    Balance between legitimate interests and the data subject’s interests or
    fundamental rights and freedoms
  45. In considering this balancing test, the Commissioner has taken into
    account the following factors:
    • the potential harm or distress that disclosure may cause
    • whether the information is already in the public domain
    • whether the information is already known to some individuals
    • whether the individual expressed concern to the disclosure; and
    • the reasonable expectations of the individual.
  46. In the Commissioner’s view, a key issue is whether the individual
    concerned has a reasonable expectation that his information will not be
    disclosed. These expectations can be shaped by factors such as an
    individual’s general expectation of privacy, whether the information
    relates to an employee in their professional role or to them as
    individuals, and the purpose for which they provided their personal data.
  47. In its submission to the Commissioner the ICO has said that even if it
    was to accept that disclosure is necessary to meet a legitimate interest,
    it considers this would be outweighed by the third party’s rights and
    freedoms. As it has explained above, it says the information requested is
    the personal data of the person who has raised complaints and
    corresponded with the office ie Mr Dransfield. It considers the individual
    in question would have raised complaints and correspondence with an
    expectation of confidence and he would not have a reasonable
    expectation that this information would be disclosed in response to a
    request made under the FOIA. The ICO confirmed that it considers that
    in the circumstances of this request there is no strong legitimate interest
    that would override the prejudice to the rights and freedoms of the data
    subject, Mr Dransfield.
  48. Finally, with regard to the wording under Article 5(1)(a), the ICO says
    that because it does not consider disclosing the information to be lawful,
    it has not given particular consideration as to whether disclosure would
    be fair or transparent. But the ICO has confirmed that for the reasons it has given and which are discussed above, it considers that disclosure
    would be neither fair nor transparent.
  49. In correspondence to the Commissioner, the complainant has drawn her
    attention to the fact that “since the request was made”, Mr Dransfield
    appears to have published “most of the information” requested in this
    case. The Commissioner is aware that Mr Dransfield has his own weblog
    on which FOIA matters and the Information Commissioner are written
    about extensively. The complainant provided the Commissioner with a
    link to the blog, on which the requested information is published. It is
    not “most” of the requested information but one of letters that the ICO
    sent to Mr Dransfield. It was published on the blog on 9 January 2019.
  50. The complainant considers that Mr Dransfield has a philosophical belief
    in the publication of such information to such an extent that it is
    inappropriate and in breach of the principles of open justice for the ICO
    to rely on section 40 to withhold the information. He also considers it
    manifestly apparent that if the ICO had asked Mr Dransfield, he would
    have consented to the information being released.
  51. With regard to the matter of consent, in her published guidance on
    section 40 the Commissioner notes that for this basis for disclosure to
    be satisfied the individual must give their consent freely to the specific
    disclosure, with the understanding that their personal data will be
    disclosed to the requester under FOIA and therefore potentially to the
    world at large.
  52. She goes on to advise that given the practical difficulties of meeting this
    condition, it is unlikely to be used in most circumstances and that when
    a request is made under FOIA, legitimate interests is likely to be the
    most relevant.
  53. The Commissioner has not considered this matter further other than to
    note that at the time of the request the ICO did not have Mr Dransfield’s
    consent to disclose the requested information.
  54. The Commissioner has considered the situation as it was at the time of
    the request on 22 August 2018. At that point the element of the
    requested information discussed above had not been published and the
    Commissioner has not been made aware of any of the information that
    was published at 22 August 2018. Nor has she been presented with any
    evidence to suggest that the information was already known to other
    individuals (ie other than Mr Dransfield).
  55. The complainant’s arguments as to what Mr Dransfield’s position would
    be in this case are conjecture. Taking account of all the circumstances,
    and despite Mr Dransfield’s interactions with the ICO and the views and opinions that are published about the ICO on his blog, the Commissioner
    is satisfied that he would nonetheless have the reasonable expectation
    that his private correspondence with the ICO about complaints he
    submitted to it would not be released to the wider world in response to
    an FOIA request. As such, she considers that disclosure would be likely
    to cause him a degree of distress.
  56. Finally, the wider public interest in the ICO being open and transparent
    about its operations has been met, in the Commissioner’s view, through
    the ICO’s broad discussion of its application of section 50(2) in its
    response to the complainant, which concerned both Mr Dransfield and
    more generally.
  57. Based on the above factors, the Commissioner has determined that
    there is insufficient legitimate interest to outweigh the data subject’s
    fundamental rights and freedoms. The Commissioner therefore
    considers that there is no Article 6 basis for processing and so the
    disclosure of the information would not be lawful.
  58. Given the above conclusion that disclosure would be unlawful, the
    Commissioner considers that she does not need to go on to separately
    consider whether disclosure would be fair or transparent.
  59. The Commissioner has therefore decided that the ICO was entitled to
    withhold the information under section 40(2) of the FOIA by way of
    section 40(3A)(a). This being the case it has not been necessary to
    consider the remaining conditions under section 40(3A), 40(3B) or 40 (4a)
    Right of appeal
  60. Either party has the right to appeal against this decision notice to the
    First-tier Tribunal (Information Rights). Information about the appeals
    process may be obtained from:
    First-tier Tribunal (Information Rights)
    GRC & GRP Tribunals
    PO Box 9300
    LEICESTER
    LE1 8DJ
    Tel: 0300 1234504
    Fax: 0870 739 5836
    Email: grc@justice.gov.uk
    Website: http://www.justice.gov.uk/tribunals/general-regulatory-
    chamber
  61. If you wish to appeal against a decision notice, you can obtain
    information on how to appeal along with the relevant forms from the
    Information Tribunal website.
  62. Any Notice of Appeal should be served on the Tribunal within 28
    (calendar) days of the date on which this decision notice is sent.
    Signed
    Pamela Clements
    Group Manager
    Information Commissioner’s Office
    Wycliffe House
    Water Lane
    Wilmslow
    Cheshire
    SK9 5AF

Judge McKenna (the third party mentioned above), and the First Tier Tribunal President quit her post on the 14th of August 2021 after 13 months’ gardening leave and the United Kingdom Mainstream media has not even referred to nor mentioned this.

About Wirral In It Together

Campaigner for open government. Wants senior public servants to be honest and courageous. It IS possible!
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