Norman Ingle v The Information Commissioner & Anor.

Information requested under the Freedom of Information Act 2000 may constitute the requester’s personal data even where it also concerns an issue, complaint or legal claim. The character of information depends on the statutory scheme through which it is viewed. Section 40(1) is an absolute exemption, directing requests for a person’s own data to the data-protection regime.

A public authority is not estopped from relying on a Freedom of Information Act exemption merely because it relied on a different exemption earlier. Section 17 is procedural and does not prevent exemptions being added, dropped or changed during the statutory appeal process, provided the requester has a fair opportunity to address the issue.

The appellant sought five documents held by Cambridgeshire County Council concerning a long-running planning dispute and related complaint or legal claim. The Council initially relied on legal professional privilege, but later relied on section 40(1) of the Freedom of Information Act 2000, contending that the documents were the appellant’s personal data.

The Information Commissioner upheld that approach. The First-tier Tribunal dismissed the appeal under case number EA/2021/0351 following a hearing on 13 May 2022, deciding that the information could concern both an issue and an individual and that estoppel did not prevent reliance on section 40(1). The central questions before the Upper Tribunal were whether the FTT had erred in law on personal data, estoppel, or alleged procedural unfairness.

1. Appeal dismissed. The First-tier Tribunal’s decision involved no error of law.
2. Section 40(1) of the Freedom of Information Act 2000 creates an absolute exemption where the requested information constitutes the applicant’s personal data. The definition of personal data is supplied by section 3 of the Data Protection Act 2018 and is deliberately broad. Information may concern an issue, complaint or legal claim and also relate to, and identify, a living individual.
3. The proposition that information has one immutable character for all legal purposes was misconceived. Its nature depends on the legal scheme through which it is being considered. The same material could fall within section 40(1) for a Freedom of Information Act request while being subject to different exemptions under a data-protection subject access request.
4. Estoppel cannot prevent a public authority from relying on an applicable statutory exemption merely because it failed to invoke that exemption at an earlier stage. The authority may change its position, and the appellate decision-maker considers the propriety of disclosure afresh. This followed the approach in Information Commissioner v Home Office [2011] UKUT 17 (AAC) and Birkett v Information Commissioner and DEFRA [2011] EWCA Civ 1606.
5. Section 17 of the Freedom of Information Act 2000 sets out an administrative and procedural process. It does not require a public authority to plead every potentially applicable exemption, nor does it prevent exemptions being added or abandoned later. The ultimate supervision lies in the Information Commissioner’s and First-tier Tribunal’s decision-making functions. The approach in FCDO v Information Commissioner, Williams and Others (Sections 23 and 24) [2021] UKUT 248 (AAC) was followed.
6. There is no general benefit-of-the-doubt rule in this jurisdiction. The issue was whether the exemption applied as a matter of law. The appellant had a fair opportunity to address section 40(1) before the FTT, so there was no procedural unfairness. The Upper Tribunal also endorsed the observations in Christie v Information Commissioner [2022] UKUT 315 (AAC) concerning permission to appeal, while treating the third ground as within the scope of an appeal for the purpose of deciding the case.

• Upper Tribunal (Administrative Appeals Chamber): appeal from the First-tier Tribunal dismissed. The Upper Tribunal held that the FTT decision dated 21 May 2022 under EA/2021/0351 involved no error of law.
• First-tier Tribunal (General Regulatory Chamber): dismissed the appellant’s appeal against the Information Commissioner’s decision notice, holding that section 40(1) applied and that estoppel and the alleged issue-based character of the information did not prevent that conclusion.
• Information Commissioner: Decision Notice IC-88694-G3P1 concluded that the five documents were the appellant’s personal data and that section 40(1) of the Freedom of Information Act 2000 was engaged.