Angela Powell v Information Commissioner

Where a request seeks several distinct items of information, the right of access and each exemption under the Freedom of Information Act 2000 must be assessed separately for each item. Information is personal data only if it relates to an identified or identifiable living individual, assessed using all information and means reasonably likely to be used by a motivated inquirer.

A tribunal may adequately explain why a median salary in a small workforce identifies an individual. It must, however, give sufficient reasons and factual findings to explain why other statistical outputs, such as mean pay or pay-gap percentages, identify individuals. Appellate restraint does not cure a failure to show application of the correct legal test. Identification is a question of fact for the fact-finding tribunal.

Angela Powell requested information from the Equality and Human Rights Commission about pay at its Birmingham office. Her later request asked the Commission to apply its pay-gap method to the data and provide the results. The Commission withheld the information under section 40(2) of the Freedom of Information Act 2000, and the Information Commissioner upheld that position.

The First-tier Tribunal, in decision EA/2020/0137 promulgated on 16 December 2020, dismissed Ms Powell’s appeal. It held that the requested information was personal data and that adequate advice and assistance had been given. Ms Powell appealed on grounds concerning the adequacy of the reasons on personal data, advice and assistance, and legitimate interests.

The central issue was whether the First-tier Tribunal had adequately explained why the separate results of the requested pay analysis would identify living individuals.

1. Appeal allowed. The First-tier Tribunal made a material error of law. Its decision was set aside and the appeal was remitted for a complete rehearing before a freshly constituted First-tier Tribunal.

2. Under section 1 of the Freedom of Information Act 2000, the right of access attaches to the information described in the request. The section 40 exemption must therefore be applied separately to each requested item. The fact that some requested information is exempt does not remove the right to any separate item which is not exempt.

3. Section 3 of the Data Protection Act 2018 creates a binary question: whether a living individual can be identified directly or indirectly, using all information and means reasonably likely to be used. The First-tier Tribunal adequately explained why median-pay information in the small Birmingham office could identify an employee, because it could be an actual employee’s salary.

4. It did not adequately explain why the other requested outputs, including mean pay and percentage pay-gap figures, related to identifiable individuals. The Commissioner’s later submissions depended on factual assumptions about information Ms Powell possessed or could obtain, but the First-tier Tribunal had made no findings on those matters. Its reasons did not show, even in broad terms, that it had applied the correct test to those separate items.

5. The challenge concerning advice and assistance under section 16 was subsumed in the reconsideration. The challenge concerning legitimate interests failed: read fairly, the First-tier Tribunal had identified the interest as the pay-gap position of the Commission as a whole. Whether statistical information identifies an individual is a factual question, and the First-tier Tribunal was best placed to make the necessary findings on remittal.

• Upper Tribunal (Administrative Appeals Chamber): allowed the appeal, set aside the First-tier Tribunal decision for material error of law, and remitted the case for a complete rehearing: [2023] UKUT 221 (AAC).
• First-tier Tribunal (General Regulatory Chamber): in EA/2020/0137, promulgated on 16 December 2020, dismissed the appeal against the Information Commissioner’s decision notice.