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	First-tier Tribunal (General Regulatory Chamber)
You are here: BAILII >> Databases >> First-tier Tribunal (General Regulatory Chamber) >> Saunders v Information Commissioner & Anor [2025] UKFTT 326 (GRC) (14 March 2025) URL: http://www.bailii.org/uk/cases/UKFTT/GRC/2025/326.html Cite as: [2025] UKFTT 326 (GRC)

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First-tier Tribunal
General Regulatory Chamber
Information Rights

		Heard by Cloud Video Platform Heard on: 11 March 2025
		Decision Given On: 14 March 2025

Decision: The Appeal is partly allowed and partly dismissed.

Substituted Decision Notice:

The 2nd Respondent shall, within 35 days of being sent this Decision, disclose:-

1. the information the 2nd Respondent accepted at the Appeal hearing would be disclosed namely the material:-

(a) previously withheld by section 41 FOIA.

(b) which provides the names and other details of the candidates.

(c) which contains the name of the elected Member

(d) which the 2nd Respondent accepted had been redacted in error such as the email standard footer note and reference to a holiday.

2. the redacted word in the message at 11.10 on page A11 of the Closed Bundle and C82

3. the names of people on the basis set out in paragraph 64 of the Reasons.

REASONS
1. Mr Saunders appeals to the Tribunal by section 57 Freedom of Information Act 2000 ("FOIA"). The Appeal relates to a decision notice ("the DN") issued by the Information Commissioner ("the IC") dated 22 April 2024 with reference IC- 262866-J1N5. It concerns a request for information made by Mr Saunders to the Local Government Association ("the LGA") on 21 June 2023. The LGA was formed in about 1997 and is a representative body for the local authorities of England & Wales.
2. Those representing the LGA were asked to confirm that it (the LGA) was, in their view, subject to FOIA. Mr Saunders pointed out that the LGA itself says so and the LGA said that it is an organisation whose members are local authorities who are themselves subject to FOIA. The Tribunal were asked to proceed on this basis and we did so.
3. What follows is a summary of the submissions, evidence and our view of the law. It does not seek to provide every step of our reasoning. The absence of a reference by us to any specific submission or evidence does not mean it has not been considered.
4. In this Decision page numbers indicated by their inclusion in brackets refer to pages of the Bundle and/or Closed Bundle ("CB"). Where any evidence is cited and underlined that has been added for emphasis.

Background

5. The background to this Appeal relates to certain appointments made at Sandwell Metropolitan Borough Council ("SMBC"). Mr Saunders says in his request that:-

"The LGA was directly involved in securing the position as Interim Chief Executive of Kim Bromley Derry and the position of Imogen Walker as Head of the Leader's Office – both at...(SMBC)."

6. The LGA says (C78):-

"As the LGA is a membership organisation, it is not our role to be directly involved in the recruitment processes of any Council. We offer a wide range of support and services to councils, including workforce issues. As with all other councils, we are happy to provide advice and guidance to support a recruitment process by sourcing individuals who fulfil the requirements of a role when requested. However, we do not make decisions on the recruitment of individuals, this would be made by the Council. The appointment of the two individuals referred to in your Freedom of Information Act request was a decision made by the Council and The LGA was not involved in the appointments."

Evidence and matters considered

7. The Appellant and those representing the LGA are thanked for their attendance at the Appeal. In addition to hearing from them we also had (a) the Bundle of 137 pages (b) the CB of 16 pages and (c) a closed note prepared by the LGA.
8. As regards the closed material an application had been made on 29 November 2024 and an order made pursuant to rule 14(6) The Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 on 19 December 2024.

Role of the Tribunal

9. The Tribunal's role in an Appeal by section 57 FOIA is as set out in section 58 which provides that:-

(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.

10. In:-

(a) NHS England -v- Information Commissioner and Dean [2019] UKUT 145 (ACC) the Upper Tribunal said:-

"10. The First-tier Tribunal 'exercises a full merits appellate jurisdiction and so stands in the shoes of the IC and decides which (if any) exemptions apply..."

(b) Peter Wilson -v- The Information Commissioner [2022] UKFTT 149 it was held that:

"30...the Tribunal's statutory role is to consider whether there is an error of law or inappropriate exercise of discretion in the Decision Notice. The Tribunal may not allow an appeal simply because it disagrees with the Information Commissioner's Decision. It is also not the Tribunal's role to conduct a procedural review of the Information Commissioner's decision making process or to correct the drafting of the Decision Notice."

Request to Appeal (overview)

11. On 21 June 2023 Mr Saunders wrote to the LGA and said as follows (C74):-

"The LGA was directly involved in securing the position as Interim Chief Executive of Kim Bromley Derry and the position of Imogen Walker as Head of the Leader's Office – both at Sandwell Metropolitan Borough Council (SMBC).

Please disclose all records relating to these appointments excluding purely personal communications with Bromley-Derry and Walker. Obviously all records passing between the LGA and SMBC/individual Councillors must be disclosed as should records of communications with any third parties involved in these appointments.

"Records" include correspondence, emails, telephone attendance notes, WhatsApp/other social records, and all records of whatsoever nature created for the purpose of securing the said individuals in the respective posts."

12. On 19 July 2024 (C74) the LGA responded and after setting out their role went on to:-

(a) provide some information (which is at pages C81- C95 of the Bundle in its redacted form and in full in the CB.)

(b) apply a number of redactions to some of the material citing the exemptions by sections 40(2), 43(2) and 41 FOIA.

(c) indicate that some fell outside the scope of the request.

13. Mr Saunders requested an internal review on 21 August 2023 (C96). The LGA's response was (C101):-

1) "The first issue is who instigated these appointments. How did the LGA become involved in the first place and when? That may be detailed in redacted sections or may not but it is clearly disclosable information."

We have conducted a thorough search of our systems for records relating to the appointments of both Kim Bromley-Derry and Imogen Walker. These records have been compiled and provided to you, applying redactions in accordance with the legislation. We do not hold further information relating to your initial FOI request.

2) "It is clear that the LGA were aware of the sacking of the previous CX and that an exit meeting was planned for 26th July 2021 at SMBC and so the LGA was involved in the recruitment process – at least of KBD before that date. Where is this documented?"

This information is outside the scope of your original request and as such, we will not be addressing it in this review response.

3) "There seems to be virtually nothing on the recruitment of Walker?"

We have conducted a thorough search of our systems for records relating to the appointments of both Kim Bromley-Derry and Imogen Walker. These records have been compiled and provided to you, applying redactions in accordance with the legislation. We do not hold further information relating to your initial FOI request"

14. On 9 October 2023 Mr Saunders complained to the IC (D108) who issued its DN on 22 April 2024 (A6-A14). In summary the IC decided:-

(a) the LGA was entitled to withhold information by sections 40(2) and 41(1) FOIA.

(b) the LGA was not entitled to withhold information by section 43(2) FOIA and it should disclose the material where this exemption was relevant.

(c) all relevant material had been identified in respect of the request

(d) the LGA had breached sections 10(1) and 17(1) FOIA in respect of the time they took to respond.

15. On 17 May 2024 Mr Saunders issued this Appeal (A15). The Appeal is supported by Grounds (from A28). The IC Responded on 20 June 2024 and the LGA responded on 18 October 2024. Mr Saunders Replied (A50) on 14 November 2024.

Scope

16. From the above and from hearing the parties we noted that the scope of this Appeal had initially been to ask whether the DN was in accordance with the law when the IC decided that (a) the LGA was entitled to withhold information by sections 40(2) and 41(1) FOIA and (b) all relevant material had been identified in respect of the request
17. However we noted that in para 10 of it's Response (A49) the LGA said:-

"The LGA, given the passage of time, does not oppose the Appellant's grounds of appeal in relation to the Commissioner's DN findings regarding section 41 FOIA save in relation to the redactions made to the email dated 27 July 2021 16.26 (paragraphs 2, 4 and 5)."

18. Further during the closed hearing at the Appeal the LGA withdrew their reliance on section 41(1) FOIA for any part of the disputed material.
19. It was thus not part of this Appeal to consider sections 41, 43, 10 or 17 FOIA and there was no challenge at the Appeal to the "not in scope" element of the redacted material.
20. As regards section 40(2) FOIA we noted that in the DN the IC said (para 16 A8):-

"The Commissioner considers that the complainant is pursuing a legitimate interest – transparency around communications that the LGA has entered into about recruitment – and that disclosure of the requested information is necessary to meet that legitimate interest."

21. In his Grounds of Appeal (A30) Mr Saunders made reference to a further FOIA request made on 9 October 2023 and subject of a complaint to the IC on 3 January 2024. It was not part of the scope of this Appeal to consider this 2nd request.
22. Finally, and as stated by Mr Saunders at the Appeal, when making his request he said that his request excluded "...purely personal communications with Bromley-Derry and Walker" and in his request for a review he said (C96) "My original request anticipated that there would be some redactions..."

Law

23. FOIA provides that any person making a request for information to a public authority is entitled to be informed in writing if that information is held (section 1(1) (a) FOIA) and if that is the case to be provided with that information (section 1 (1) (b) FOIA). These entitlements are subject to a number of exemptions which can be absolute or subject to the public interest balance test ("the PIBT") in section 2(2)(b) FOIA.

Section 40(2) FOIA

24. Recital 1 to the UK GDPR provides that:-

"The protection of natural persons in relation to the processing of personal data is a fundamental right …...everyone has the right to the protection of personal data concerning him or her."

25. In Common Services Agency (Appellants) v Scottish Information Commissioner (Respondent) (Scotland) [2008] UKHL 47 Lord Hope held:-

"In my opinion there is no presumption in favour of the release of personal data under the general obligation that FOISA lays down. The references which that Act makes to provisions of DPA 1998 must be understood in the light of the legislative purpose of that Act, which was to implement Council Directive 95/46/EC. The guiding principle is the protection of the fundamental rights and freedoms of persons, and in particular their right to privacy with respect to the processing of personal data: see recital 2 of the preamble to, and article 1(1) of, the Directive. Recital 34 and article 8(1) recognise that some categories of data require particularly careful treatment. Section 2 DPA 1998, which defines the expression "sensitive personal data", must be understood in the light of this background."

26. Personal data is defined in section 3(2) Data Protection Act 2018 as "any information relating to an identified or identifiable living individual..."and section 40(2) FOIA provides that:-

"Any information to which a request for information relates is also exempt information if

(a) it constitutes personal data which does not fall within subsection (1), and

(b)the first, second or third condition below is satisfied."

27. By section 2(3)(fa) FOIA section 40(2) is an absolute exemption "...so far as relating to cases where the first condition referred to in that subsection is satisfied."

28. Section 40(3A)(a) FOIA is the first of these three conditions by which personal data is exempt if "disclosure of this information to a member of the public otherwise than under this Act (a) would contravene any of the data protection principles…"

28. The principles include Article 5(1) UK GDPR which provides that personal data shall be processed "lawfully, fairly and in a transparent manner as regards the data subject".
29. Article 6(1) UK GDPR states that "Processing shall be lawful only if and to the extent that at least one of the following applies:" including 6(1)(f):-

"(f) 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."

30. These are referred to by the IC in its response (A39) as the:-

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.

Is information held?

31. We agree with the IC in para 5 the IC's Response (A35) that this is an issue to be decided on the balance of probabilities. Further and for example:-

(a) in Jeremy Clyne v IC and London Borough of Lambeth EA/2011/0190 ...referred to by the Upper Tribunal at para 30 in Andrew Preston -v- (1) The Information Commissioner (2) C.C. West Yorkshire Police [2022] UKUT 344 (AAC) it was held that the:-

"38...issue for the Tribunal is not what should have been recorded and retained but what was recorded and retained."

(b) in Oates v IC and Architects Registration Board EA/2011/0138 at para 11 it was said:-

"As a general principle, the IC was, in the Tribunal's view, entitled to accept the word of the public authority and not to investigate further in circumstances, where there was no evidence as to an inadequate search, any reluctance to carry out a proper search or as to motive to withhold information actually in its possession..."

(c) in Linda Bromley v the Information Commissioner and the Environment Agency EA/2006/0072 (cited by the Upper Tribunal at para 29 in Andrew Preston) the Tribunal said:-

"There can seldom be absolute certainty that information relevant to a request does not remain undiscovered somewhere within a public authority's records. This is particularly the case with a large national organisation like the Environment Agency, whose records are inevitably spread across a number of departments in different locations. The Environment Agency properly conceded that it could not be certain that it holds no more information. However, it argued (and was supported in the argument by the Information Commissioner) that the test to be applied was not certainty but the balance of probabilities. This is the normal standard of proof and clearly applies to Appeals before this Tribunal in which the Information Commissioner's findings of fact are reviewed. We think that its application requires us to consider a number of factors including the quality of the public authority's initial analysis of the request. the scope of the search that it decided to make on the basis of that analysis and the rigour and efficiency with which the search was then conducted. Other matters may affect our assessment at each stage, including, for example, the discovery of materials elsewhere whose existence or content point to the existence of further information within the public authority which had not been brought to light. Our task is to decide, on the basis of our review of all of these factors, whether the public authority is likely to be holding relevant information beyond that which has already been disclosed. ([13].)'

The positions of the parties

Not held

32. When seeking an internal review on 21 August 2023 (C96) Mr Saunders said:-

"I expect a root and branch Internal Review here and a search for further documentation as what has been disclosed..."

33. When replying (C101) on 19 September 2023 the LGA said:-

"We have conducted a thorough search of our systems for records relating to the appointments of both Kim Bromley-Derry and Imogen Walker. These records have been compiled and provided to you, applying redactions in accordance with the legislation. We do not hold further information relating to your initial FOI request."

34. When making the complaint to the IC Mr Saunders said (D109):-

"There is clearly further communications about this matter since what has been provided is woefully incomplete. I trust the ICO will encourage the LGA to undertake a more diligent search."

35. The IC in the DN said "The Commissioner is also satisfied that all relevant information has been identified in respect of the request" and (A12):-

"43. The request in this case relates to discussions held between the LGA and SMBC about the recruitment of two individuals.

44. The LGA has informed the Commissioner that, in response to this request, it has consulted with the two LGA officers involved in this matter. No other officers or teams within the LGA are known to have been involved, and therefore no information is expected to be held by them.

45. These two officers have conducted searches on Microsoft Outlook, Mimecast, WhatsApp, and Microsoft Teams for relevant information. These searches have used the search terms "sandwell.gov.uk". "Interim Chief Executive". "Head of the Leader's Office", and the names of the individuals named by the request.

46. The LGA has clarified that some of the information redacted from the disclosed information has been redacted because it does not fall within the scope of the request, that is, it does not relate to the recruitment of the two individuals named by the request. The Commissioner has viewed that information which has been redacted and is satisfied that it does not fall within the scope of the request.

47. The Commissioner has considered the LGA's position, and notes that searches have been undertaken on the relevant part of the LGA's network. The searches have retrieved no information besides that already disclosed, or otherwise considered by the Commissioner in this decision. There is no evidence available to the Commissioner that indicates that the LGA's searches have been deficient.

48. Having considered all the circumstances, the Commissioner therefore accepts the LGA's position that it does not hold further information. As such, the Commissioner has decided that the LGA has complied with section 1(1) of FOIA."

36. In his Appeal Mr Saunders challenged this (see A33) and said for example:-

"I believe that at least 6 LGA persons were involved here (and maybe more if the Stevens FOIA is consolidated herewith)"

Paragraph 45 – this is disputed and the LGA is put to strict proof thereof. The documents that have been disclosed clearly show that other communications were occurring and no records of same have been disclosed in accordance with FOIA 2000.

Paragraph 46 – this is a matter upon which I cannot comment and ask the Tribunal to review.

Paragraph 47 & 48 – disputed as per my comments on Paragraph 45 above. There are clearly documents/records/messages which have not been disclosed."

37. In its Response to the Appeal the IC said (A44):-

"48. The Appellant's view is that all relevant information has not been identified as there were more than two LGA officers involved in the recruitment. He specifically relies upon the email dated 23 July 2021 and submits that this "…starting "Dear Colleagues" is sent to the Hertfordshire person and FOUR other LGA addresses. I believe that at least 6 LGA persons were involved here…"

49. The Commissioner notes that the first three paragraphs of this email were redacted as falling outside the scope of the request. The Commissioner submits that it is likely the number of recipients reflects the fact that the email additionally contained information about matters other than the recruitment and does not therefore consider that the Appellant's grounds disturb his findings [DN 42-48]"

38. The LGA in its Response said (A48):-

"7...The LGA conducted searches on Microsoft Outlook, Mimecast, WhatsApp and Microsoft Teams for the information the Appellant requested and before replying to the request was satisfied on a balance of probabilities that they had complied with section 1(1) of FOIA and that they did not hold relevant information beyond that disclosed. The LGA as part of the Appellant's review request and again before responding to the complaint to the Commissioner, conducted a thorough search of their systems for information falling within the request. The LGA submits that they have complied with Section 1"

39. At the Appeal Mr Saunders made submissions on this matter by reference to pages D132 and C81 of the Bundle. D132 is an email between the LGA and the IC dated 12 January 2024 in which the LGA explains the searches it had done for relevant material. The LGA says it has made enquiries of:-

"...the LGA's Principal Advisor for the West Midlands... and the Head of the Labour Group office who was the only LGA officer involved in the appointment of the Head of the Leader's Office at Sandwell."

40. The LGA says (D133):-

"We confirmed with these officers whether any other teams or officers at the LGA would hold any information relating to this request. Their response was no."

41. Mr Saunders referred us to the letter at page C81 which was sent to 6 people and in his view this created doubt as to the accuracy of the information at D132/3. The LGA said that they asked these other people if they had any information but they had nothing.
42. We accept that the answers to us and at D133 are different. We considered this in the context of all the information about all the searches that had been done noting the search mediums, search terms and keywords checked. We are not convinced on the balance of probabilities that this issue puts in doubt the general thrust of the DN on this point.
43. This part of the Appeal is not allowed.

section 40

44. In its response to the request the LGA said (C79):-

"You will see that personal data, including information relating to personal circumstances, has been removed. This information is being withheld under section 40(2) of the Freedom of Information Act as the information constitutes 3rd party personal data. Section 40(2) provides that personal data about third parties is exempt information if one of the conditions set out in section 40(3) is satisfied. Under the FOI Act disclosure of this information would breach the fair processing principle contained in the Data Protection Act (DPA), where it would be unfair to that person or is confidential. The LGA is of the view that both these are met and releasing this information would breach the rights and freedoms of individuals referred to and as such is exempting this information."

45. Mr Saunders said when seeking the review (C95) "My original request anticipated that there would be some redactions but the ones applied in the response are so extensive as to render most of the disclosure meaningless."
46. In the DN the IC explained the decision from para 9- 21 (A7-9). In summary the DN said:-

"12. In this case the LGA withheld the names of individuals, email addresses, and telephone numbers within email and WhatsApp communications. The Commissioner is satisfied that this information will represent personal data."

47. The IC's conclusion was that Mr Saunders was pursuing a legitimate interest and that disclosure of the personal data was necessary to meet that interest. However (A9):-

"17...the Commissioner also recognises that the request seeks the identities and contact details of officers within the LGA, and also third parties who are officers of other public authorities – including SMBC and Hertfordshire County Council - who have engaged, or otherwise been copied into, correspondence with the LGA. The Commissioner notes that there is significant case law relating to such information, and which has consistently found that the rights and freedoms of those individuals must be protected save only in occasional situations where the legitimate interest is significant and overriding..."

"18...the Commissioner does not consider that any significant and overriding basis has been evidenced for the disclosure of the individuals' personal data. Whilst these individuals have been involved in communications on behalf of the LGA, or other public authorities, in respect of recruitment, this does not provide a default justification for their identities to become a matter of public record."

"19. The Commissioner is also aware that the LGA has otherwise disclosed the requested information, subject to redactions. The Commissioner considers that this disclosure – including substantive parts of correspondence from the Interim Director for Human Resources at SMBC to the LGA – provides transparency about the nature of the correspondence, and that this addresses the legitimate interest being pursued by the requester.

20. The Commissioner has therefore determined that there is insufficient legitimate interest to outweigh the fundamental rights and freedoms of the individuals. Therefore, he considers that there is no legal basis for the LGA to disclose the information and to do so would be in breach of principle a."

48. In the Grounds Mr Saunders said (A32):-

Paragraph 17 – the officers do not have a right of anonymity here. They were directly involved in high-level negotiations and are not mere apparatchiks. The person at Hertfordshire is clearly a high-level individual in the LGA (and accepting the personal data of candidates etc onto the Hertfordshire County Council computer system). In one email he/she is included amongst "dear colleagues". There is a significant and overriding basis for their identities to be disclosed as they are major players in this process and they specifically know that the recruitment of both individuals was not going through normal channels.

Paragraph 19 – this is not understood. The redactions to the Sue Stanhope emails do not provide transparency at all.

Paragraphs 20 & 21 – for the above reasons I appeal against the IC's decision."

49. In the Response the IC referred back to the DN but added:-

43. The Commissioner's guidance on 'Requests for personal data about public authority employees explains that:-,

"It is reasonable to expect that you disclose more information about senior public authority employees than more junior ones. Senior employees should expect their posts to carry a greater level of accountability, since they are likely to be responsible for major policy decisions and the expenditure of public funds. For example, a junior employee who is not accountable for their submissions to a senior government minister has no expectation that their name will be disclosed in response to a FOI request.

However the terms 'senior' and 'junior' are relative. It is not possible to set an absolute level across the public sector below which personal information is not released. It is always necessary to consider the nature of the information and the responsibilities of the employee in question"

50. In its Response the LGA said (A48):-

"10. The LGA taking into account the IC guidance, applied this exemption as they considered disclosure of this information would breach the fair processing principle contained in the Data Protection Act (DPA), where it would be unfair to the person(s) whose personal data it is to release the information given the nature of the correspondence and the subject matter covered.

11. The LGA submits that releasing this information would breach the rights and freedoms of the individuals. LGA has otherwise disclosed the requested information, subject to redactions providing transparency about the nature of the correspondence.

12. The LGA submits that the disclosure of the personal information is not therefore necessary as the redacted information addresses the legitimate interest being pursued by the Appellant. The LGA submits that there is not a significant and overriding basis for LGA officers' identities to be disclosed."

51. Mr Saunders indicated to us at the Appeal the material he asked us to look out for in the closed session. In particular he said this was at C87-90 and comprised various names, asking us to consider the seniority of these individuals and why someone from Hertfordshire Council was involved.

Closed Part of the hearing

52. We held a closed hearing with the LGA and looked at each page of the CB and each redaction sought by section 40(2) FOIA and generally even where no formal challenge had been made. We had the benefit of a closed note. Following the hearing what had transpired was communicated to Mr Saunders and the LGA has provided a gist of the closed material and the closed session.
53. During the closed hearing the LGA made a number of updates to its position. Due to (a) the passage of time and (b) the history of what had in fact happened (c) the information in the public domain and (d) these names having been disclosed in the evidence including by the LGA (D132) and in the formal response to the Appeal (A47) it was accepted by the LGA that they would not seek to maintain the redactions:-

(a) which revealed the names of those who were to be and then were appointed as can be seen at pages A1, A4, A9 and A12 of the CB.

(b) which referred to those people in an initialised form or said where that had been working prior to appointment for example at A1 and A4 of the CB.

54. The LGA also indicated some parts had been redacted in error such as:-

(a) the standard footer message to some emails sent (see A4 and ditto A8 CB) which should not have been redacted at all.

(b) reference to a holiday redacted in an email (A4 CB) but not a connected WhatsApp message (A14 CB).

(c) the top of a number of emails in the CB (see pages A1, A2,A6 and A10) had been marked as being subject to Section 40 but were in fact "not in scope" being the communication (names, date and subject) between staff of the LGA put together for the response to this request and post-dating the request.

55. The LGA also accepted that the name at the top of the WhatsApp messages on page 11 which also appears on pages A10, A12, A14 and A15 of the CB should not have been redacted by section 40 as it refers to an elected Member of SMBC.
56. In this part of the hearing the LGA were able to tell the Tribunal the grades of those named in the redacted material, who they worked for and if they were still at the LGA apart from one who was unknown.

Section 40 – review

57. In light of the LGA's changes of position set out above there was much less material for the Tribunal to consider.
58. Of the remaining redacted material we considered it all to be personal data except for the word in the WhatsApp message at 11.10 on page A11 in the CB and C82 of the Bundle. The LGA told us that in fact they considered this whole message to be "not in scope" and had not redacted it in error. It has however been disclosed and in our view the section 40 FOIA claim for the particular word fails on the basis it is not personal data.
59. The material contains, for example, mobile numbers (see CB A4, A8 A14 and A15) or private email addresses (see for example A5 in the CB). In our view this is personal data and while it is accepted Mr Saunders is in pursuit of a legitimate interest we do not accept that the disclosure of this material is necessary for the pursuit of that interest. Had we needed to go further we would have concluded that the interest was "...overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data..."
60. There were further names in the disputed material. As before we agree that names are personal data and that Mr Saunders was pursuing a legitimate interest.
61. We make no findings on Mr Saunders' concerns and note they are not accepted by the LGA but his interest was to examine the whole factual matrix of the way in which the LGA (on his case) had worked with SMBC to assist or be involved in the recruitment of the relevant individuals. On that basis we did conclude that disclosure of the names was necessary for the pursuit of that interest.
62. However in our view that interest would be overridden by "...the interests or fundamental rights and freedoms of the data subject which require protection of personal data" where the individuals were more junior and/or in roles where they would not have been expecting to take part in matters in which their names would be revealed to the world in answer to a FOIA request. As well as lawfulness for Article 6(1)(f) UK GDPR we also kept in mind the need for processing to be fair and transparent as regards the data subjects.
63. With that in mind and having considered the closed note and heard from the LGA and been told of the grades and status of the various personnel named and considered the points made by Mr Saunders we concluded that disclosure of names should be made on this basis:-

(a) for anyone whose grade was lower than grade 7 there should not be disclosure.

(b) the one name of the person who was unknown should not be disclosed on the basis that is likely his/her role is lower than a grade 7.

(c) the LGA is only required to disclose the relevant names of those who are still at or part of the LGA and are grade of 7 or above.

(d) for the avoidance of doubt the name of the person with the Hertfordshire.gov.uk email should not be disclosed because while they are used as a peer reviewer by the LGA this person is a volunteer and not part of the LGA.

Decision

64. In summary therefore:-

(a) Mr Saunders' appeal that the DN was wrong to conclude that all relevant material had been identified in respect of the request is dismissed.

(b) Mr Saunders' appeal that the DN was wrong to conclude that the LGA were entitled to their redactions by section 40(2) is partly allowed and partly dismissed.

Signed: Tribunal Judge Heald

Date: 14 March 2025