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You are here: BAILII >> Databases >> First-tier Tribunal (General Regulatory Chamber) >> Dews v Information Commissioner & Anor [2025] UKFTT 452 (GRC) (28 April 2025) URL: https://www.bailii.org/uk/cases/UKFTT/GRC/2025/452.html Cite as: [2025] UKFTT 452 (GRC) |
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General Regulatory Chamber
Information Rights
B e f o r e :
TRIBUNAL MEMBER GRIMLEY EVANS
TRIBUNAL MEMBER DE WAAL
____________________
| DAVID DEWS |
Appellant |
|
| - and - |
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| (1) THE INFORMATION COMMISSIONER (2) THE COUNCIL OF THE CITY OF WAKEFIELD |
Respondents |
____________________
____________________
Crown Copyright ©
The Appeal was decided without a hearing as agreed by the parties and allowed by the Tribunal by rule 32(1) of the Tribunal Procedure (First -Tier Tribunal) (General Regulatory Chamber) Rules 2009.
Decision: The Appeal is Allowed
Substituted Decision Notice: The 2nd Respondent shall, within 35 days of being sent this Decision, disclose a copy of the abatement notices dated 24 October 2023 at pages A1CB-A6CB in the closed bundle provided for this Appeal.
Background
Evidence and matters considered
(a) the name and address of the person to whom the notices are addressed.
(b) the address of the premises in respect of which the notices apply.
(c) a short description of the noise issue leading to the notices.
Role of the Tribunal
(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.
The EIR
"5.—(1) Subject to paragraph (3) and in accordance with paragraphs (2), (4), (5) and (6) and the remaining provisions of this Part and Part 3 of these Regulations, a public authority that holds environmental information shall make it available on request"
"(3)To the extent that the information requested includes personal data of which the applicant is not the data subject, the personal data shall not be disclosed otherwise than in accordance with regulation 13."
13.—(1) To the extent that the information requested includes personal data of which the applicant is not the data subject, a public authority must not disclose the personal data if—
(a) the first condition is satisfied, or...
(2A) The first condition is that the disclosure of the information to a member of the public otherwise than under these Regulations—
(a)would contravene any of the data protection principles, or
(b)would do so if the exemptions in section 24(1) of the Data Protection Act 2018 (manual unstructured data held by public authorities) were disregarded.
"(3)...a living individual who can be identified, directly or indirectly, in particular by reference to—
(a)an identifier such as a name, an identification number, location data or an online identifier, or
(b)one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of the individual."
"(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.
"26. In considering the application of Article 6(1)(f) of the UK GDPR in the context of a request for information under the EIR, 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
"27. The Commissioner considers that the test of 'necessity' under stage (ii) must be met before the balancing test under stage (iii) is applied."
"...we also take the view that – if you are dealing with a request for personal data under the EIR because the information is also environmental –the presumption in favour of disclosure does not apply."
From Request to Appeal (overview)
"Please accept or advise me the process to request a copy of the noise abatement notice that was issued to [the Property]. The notice went live on the 6th December 2023."
Scope
(a) the EIR applied to this request.
(b) the information sought contained personal data.
(c) the Appellant had a legitimate interest in seeking the information and disclosure would be necessary for the pursuit of that legitimate interest.
The position of the parties
"Regulation 12(3) requires us not to disclose that personal data, except in accordance with regulation 13. Regulation 13 prohibits us from disclosing third party personal data if this would breach the Data Protection Act. In this instance we believe that disclosure would breach the first data protection principle, which states that personal data must be processed fairly and lawfully. Under this principle in accordance with guidance provided by the Information Commissioner's Office, the Authority "must not use such data in ways that have unjustified adverse effects on the individual(s) concerned and must handle people's personal data only in ways they would reasonably expect". It is our opinion that, in this case, disclosure could have a negative effect on a third party, and that party would reasonably expect the data to be made publicly available, which would be the case were disclosure to be made."
"Thank you for clarifying this.
However when you assess this I would like you to take into account the fact that the noise abatement has been served in nov 2023 and went live dec 2023.
Any prospective purchasers of properties in the area should be able to be fully aware of any issues in the neighbourhood.
Further more the investigation to get to the serving of the noise abatement notice has been completed and I am told by the environmental health department that this will stay with the landowner and the tenant (dog breeder) for all the time they live there.
Additionally refusing on the basis of ongoing "investigation" then I must ask and point out; why is it I have been issued under EIR the recordings I took to achieve the noise abatement being served.
The issuing of a copy of the noise abatement notice would have no detrimental affect on any future investigation and I cannot see how it can in any way nor can my legal.
As I have previously shown and as you note to me in regards to the example that I sent and that the investigation was complete. Then on this basis and the fact that this noise notice issued is also complete as the explained above then I cannot again understand your other reasonings to not issue a redacted copy."
"The first point that I would make in response to those comments is that, although you are in receipt of certain data because you are directly involved in the matter, EIR disclosures are made "to the world". It is therefore necessary for the Council to ensure that any personal data is processed fairly and lawfully. Under this, the first data protection principle, and in accordance with guidance provided by the Information Commissioner's Office, the Authority "must not use such data in ways that have unjustified adverse effects on the individual(s) concerned, and must handle people's personal data only in ways they would reasonably expect". It is our opinion that, in this case, disclosure could have a negative effect on a third party, and that party would not reasonably expect the data to be made publicly available, which would be the case were disclosure to be made on this occasion. "
"36. 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.
37. The complainant states that whilst the council has said that they have the right to pursue their own action regarding any matter of noise nuisance through the courts, it has prevented them from having access to the information that they need in order to be able to do this.
38. The complainant has also referred to an information request made (by a different individual to a different public authority) where information about a noise abatement notice was released. They have said that the council should follow the same approach taken by that public authority.
39. The council has said that the request relates to a matter that essentially concerns a local dispute between neighbours. It also states that noise abatement notices are only released into the public domain where it has pursued a public prosecution in the Magistrates Court.
40. The council has argued that any recipient of the notice would not expect its full content to be accessible to the world at large in response to an information request, and that such a disclosure may have a negative impact on them, and cause them harm or distress. The council has gone on to say that it also considers that there would be a breach of an individual's right to privacy, should the information requested be placed into the public domain.
41. The council has said that it has provided some information directly to the complainant, due to their involvement in matters to which the request relates. It states that it has also kept the complainant updated on matters, which includes some details relating to the notice which has been issued. The council has argued that the information that has been provided to the complainant outside the EIR, should be sufficient for the complainant's 'stated purpose', in that they have been made aware that the council is fully investigating complaints it has received, and that where necessary, it will take legal action.
42. The council has argued that disclosure would breach the privacy rights of any individual who received the notice, and that the legitimate interests in disclosure do not outweigh the legitimate interests in protecting the privacy rights of an individual, or individuals in this case
43. The Commissioner notes that the complainant has received some details relating to the noise abatement notice issued by the council. However, he considers that the release of a copy of the notice in response to an EIR request to be significantly different, as it would be a release of information to the "world at large" and not just to the complainant.
44. Furthermore, whilst the council has said that it has published information on the planning postal of its website that confirms that a notice was issued at the relevant property, the Commissioner considers that it would not have been within the reasonable expectations of any recipients of the notice, that a copy would be made available to the "world at large" by way of a request made under the EIR. In such circumstances, the Commissioner considers that disclosure would be likely to cause harm or distress to an individual.
45. The Commissioner has also considered the details provided by the complainant about an EIR request submitted to another public authority where information about a notice was released. It is the Commissioner's opinion that the circumstances relating to the two cases are very different. In the previous case, the public authority had already pursued a criminal prosecution through the courts (which would have been publicly available information), and this had been concluded. Furthermore, the individuals that had been issued with the notice in that case had actively released information about this into the public domain.
46. With regard to the complainant's concerns that they may not be able to take their own action through the courts without having a copy of the notice, the Commissioner understands that this is not required in order to instigate proceedings by an 'occupier', and this would therefore not prohibit the complainant from taking direct action themselves (this includes action against the council for failing to take appropriate action in response to a complaint about noise), should they wish to do so.
47. 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 in this case. The Commissioner therefore considers that there is no Article 6 basis for processing and so the disclosure of the information would not be lawful."
"The information is already open to the world via the councils acknowledgement of its serving in December 2023 and it is also stated that when it was served and to what address via the planning application which identifies the individuals and so the personal data is already out to the world at large. This is on the councils website for the refused planning evidence,
I cannot understand how it can be argued that supplying the furnishings of the notice now can cause any additional harm.
Considering this served document is also a legal notice that apart from the name and address on the notice is the property of the councils not the individuals.
For information to the ICO I have not stated that it completely stops me going to court, what I have stated is that my solicitors have requested a copy of this to see what the notice actually states as I am told it states nothing and is therefore unenforceable. This is based on a number of consultants we are involved with that are stating that the notice is not actually enforceable..."
"12 It is the Commissioner's position, based on the Upper Tribunal decision in Montague v Information Commissioner and the Department of International Trade [2022] UKUT 104 (AAC), that the relevant circumstances, for the purposes of deciding whether an exception is engaged and/or where the balance of any public interest test lies, are those which existed either at the time of the request or the public authority's refusal (albeit if that refusal is late, then by the deadline for statutory compliance at the latest)"
and (A37):-
"it is unclear what additional benefit would be occasioned by the disclosure of the requested information in response to a request under the Act which is, in effect, a disclosure to the world at large."
"17. The Council's website does contain a searchable registry of Planning Applications, which does include a Planning Application relating to the Property. The Planning Application entry for the Property includes supporting documentation, none of which are, or contain, the Notice and/or identify the individual(s) upon whom the Notice has been served.
18. The Council does acknowledge that the Planning Application entry for the Property includes the following information relating to the Notice:
18.1. Within a Report of the Council's Development Control Manager dated 18th January 2024 (published date 23rd January 2024): "In addition, it is also worth noting that No.56 Sandy Lane recently received a Noise Abatement Notice, dated 24/10/2023. This confirms that noise nuisance from dog(s) barking, howling, whining is arising from the application site and requires the nuisance to stop no later than 6th December 2023."
18.2. Within an email dated 1st November 2023 from the Council's Planning Consultation Officer (published date 27th November 2023): "Occupiers of 56 Sandy Lane recently received a Noise Abatement Notice, dated 24/10/2023. This confirms that noise nuisance from dog(s) barking, howling, whining is arising from the application site and requires the nuisance to stop no later than 6th December 2023."
19. The Council does therefore acknowledge that some information relating to the Notice, namely that as set out in sub-paragraphs 18.1 and 18.2 above, is "already open to the world" and/or "already out to the world at large". However, the Council denies that it follows from the inclusion of this information in the Planning Application entry that the Notice is "already open to the world" and/or that the Notice is "already out to the world at large" as alleged or at all.
20. The Council maintains its position as communicated to the Appellant when responding to the Request, that disclosure of the Notice could have a negative effect on a third party in circumstances they would not reasonably expect the personal data to be made publicly available, which would be the case should the Notice be provided in response to the Request.
21. The Council does further note that information relating to the Notice has been, on multiple occasions both prior to and subsequent to the Request, provided by the Council to the Appellant in a private capacity, otherwise than in response to the Request. The information provided in this way includes the content of the Notice in terms of its requirements upon the individual(s) upon whom the Notice has been served as well as background notice information and explanation."
"23. The Council maintains its position as communicated to the Appellant when responding to the Request, that disclosure of the Notice could have a negative effect on a third party in circumstances they would not reasonably expect the personal data to be made publicly available, which would be the case should the Notice be provided in response to the Request.
24. The Council contends that its position in this respect is not affected by the availability of some information relating to the Notice, namely that as set out in sub-paragraphs 18.1 and 18.2 above, being included within the Planning Application entry for the Property.
25. The Council further contends that its position in this respect is not affected by some information relating to the Notice having been, on multiple occasions both prior to and subsequent to the Request, provided by the Council to the Appellant in a private capacity, otherwise than in response to the Request. The information provided in this way includes the content of the Notice in terms of its requirements upon the individual(s) upon whom the Notice has been served as well as background notice information and explanation."
"The regulation 12(3) and regulation 13 that the council have relied upon, as previously stated has been published as of the 27th November 2023. Here the council environmental health department published to the world via the internet commentary on the noise occurring at 56 sandy lane and the serving of the noise abatement notice on the 24/10/23.
The application states the applicants name and their address – all personal information. Note this information is present prior to my request on the 19th December for a copy of the abatement order notice.
Planning statement contains address and name of land owner 27/sept/23
Furthermore as of the 26th January 2024 the local newspaper published the article (attached link) regarding the refusal of the kennels planning application
I have taken the time to extract the published information and quoted below……it clearly stating the address of the property……the landowners names Terry and Iris Gill, their grandson the kennel owner Phillip Barlow (highlighted in red and underlined.).
The article then states there is a statutory nuisance occurring (which is why the abatement notice was served.)
All this information is open to the world at large. The council had been approached prior to the 16th January for a statement on this planning application and had the knowledge that this information was to the published to the world at large in the near future, hence the newspapers enquiry, yet decided to respond to myself refusing the requested copy of the notice.
Further more upon the councils internal review, completed on the 21st February 2024 by the council it still fell back on the regulation 13 of EIR with the knowledge of this newspaper article. (attached email correspondence from the newspaper stating they are chasing for comment from the council for their article….dated 16th January 2024"
Relevant Date
"the relevant circumstances, for the purposes of deciding whether an exception is engaged and/or where the balance of any public interest test lies, are those which existed either at the time of the request or the public authority's refusal (albeit if that refusal is late, then by the deadline for statutory compliance at the latest"
"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..."
Review
"18 The Council does acknowledge that the Planning Application entry for the Property includes the following information relating to the Notice:
18.2 Within an email dated 1st November 2023 from the Council's Planning Consultation Officer (published date 27th November 2023): "Occupiers of 56 Sandy Lane recently received a Noise Abatement Notice, dated 24/10/2023. This confirms that noise nuisance from dog(s) barking, howling, whining is arising from the application site and requires the nuisance to stop no later than 6th December 2023."
"From February 2023 the application site developed a history of noise complaints. This comprised a complaint about 30-40 greyhounds which has been determined a statutory notice. Occupiers of 56 Sandy Lane recently received a noise abatement notice dated 24/10/2023. This confirms that noise nuisance from dog(s) barking, howling whining is arising from the site and requires the nuisance to stop no later than 6th December 2023."
"The application states the applicants name and their address – all personal information....Planning statement contains address and name of Land Owner 27/sept/23"
(a) the identity of the owner(s) of the Property.
...b) that the Council had on 24 October 2023 issued a Noise Abatement Notice to the occupiers of the Property.
(c) it involved noise nuisance from dog(s) barking, howling, whining at the Property.
(d) that the Notice required the nuisance to stop by 6 December 2023.
(a) in its refusal notice (repeated in its subsequent review) the Council said:-
"... the Authority "must not use such data in ways that have unjustified adverse effects on the individual(s) concerned and must handle people's personal data only in ways they would reasonably expect". It is our opinion that, in this case, disclosure could have a negative effect on a third party"
(b) in the DN the IC said:-
"In considering this balancing test, the Commissioner has taken into account the following factors: the potential harm or distress that disclosure may cause;
"The council has argued that any recipient of the notice would not expect its full content to be accessible to the world at large in response to an information request, and that such a disclosure may have a negative impact on them, and cause them harm or distress."
(c) in the Council's response to the Appeal it said:-
"23. The Council maintains its position as communicated to the Appellant when responding to the Request, that disclosure of the Notice could have a negative effect on a third party in circumstances they would not reasonably expect the personal data to be made publicly available, which would be the case should the Notice be provided in response to the Request."
Decision
Signed: Tribunal Judge Heald
Date: 28 April 2025