Reference: FS50551057
Freedom of Information Act 2000 (‘FOIA’)
Environmental Information Regulations 2004 (‘EIR’)
Decision notice
Date:
24 November 2014
Public Authority:
Address:
North East Derbyshire District Council
The Council House
Saltergate
Chesterfield
S40 1LF
Decision (including any steps ordered)
1.
The complainant has requested information regarding an allegation of a
breach of planning regulations. The Commissioner’s decision is that
because the information is environmental, the request should have been
dealt with under the EIR. He has also decided that North East
Derbyshire District Council correctly applied the exception for personal
data at Regulation 13 of the EIR to the name of the person making the
allegation and that no further information within the scope of the
request is held. The Commissioner does not require the public authority
to take any steps to ensure compliance with the legislation.
Request and response
2.
On 2 July 2014 the complainant made the following request for
information:
“I hereby request to see a copy of the allegation and any evidence of
the alleged breach of planning regulations which you may hold, which
has caused your department to take the action to date that you have.
I also require the name of the person who made the allegation, in
accordance with Section 7 of the Freedom of Information Act 1997… I
wish to know the identity of the person who is making libellous
statements about me.”
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3.
The council responded on 25 July 2014 stating that some information is
not held and applying the exemptions at section 41 and section 40 as
follows:
“”...Copy of the allegation..."
This information is exempt under Section 41(1) of the Freedom of
lnformation Act ("lnformation Provided in Confidence). Any such
complaints submitted are made in confidence. The only time details
may be released into the public domain is if action is to be taken,
which in this instance is not the case.
"...evidence of the alleged breach of planning regulations which you
may hold..."
No information held. The Council is not enforcing action on the
allegations made and therefore there is no such 'evidence' regarding
this matter. This was confirmed in an email to you from [name]
(Assistant Director - Planning and Environmental Health) dated
18/07/14.
"...which has caused your department to take the action that you
have..."
No information held. There is no information held by the Council that
states intention to take any enforcement action in respect of this
Planning Enforcement allegation.
"l also require the name of the person who made the allegation" and
"the identity of the person who is making ibellous statements about
me."
Freedom of lnformation is to provide information held and not
answer questions or embed opinion. The phrasing of this part of your
request is, in regards to the Act, your opinion (i.e. "libellous
statements"). However, under Section 40(1) of the Act ("personal
information") this element of your enquiry is exempt.
4.
The complainant requested an internal review on 26 July 2014 stating
that his request is about the ‘spurious allegation’ which triggered the
planning officers to investigate not in relation to planning enforcement.
He disputed the application of section 41, and that no information is held
in relation to the evidence of the alleged breach of planning regulations,
but agreed that his request to be informed of the persons or origin of
the allegation are exempt under section 40. He named the owners of a
specific property to be the party who made the allegations and made an
additional request as follows:
“…I therefore request that you inform me if you agree with me that
other persons are not responsible for the allegations.”
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5.
The council provided an internal review on 31 July 2014 in which it
maintained its original position.
Scope of the case
6.
The complainant contacted the Commissioner on 10 August 2014 to
complain about the way his request for information had been handled.
7.
The Commissioner has considered whether the information requested is
environmental and therefore should have been dealt with under the EIR
rather than the FOIA.
8.
Although the complainant stated in his internal review request that he
agreed that the request to be informed of the persons or origin of the
allegation are exempt under section 40, he went on to request that he
be informed whether persons other than the owners of a specific
property are not responsible for the allegations and, in his complaint to
the Commissioner, said that he wants to be sure that his assumption of
the origin of the complaint is correct and that no one other than the
persons he suspects has a grudge against him. The Commissioner
therefore considers that the complainant does want the identity of the
person who made the allegation. As the Commissioner has decided that
the request should have been dealt with under the EIR, he deems it
appropriate to apply the council’s arguments in relation to section 40(2)
of the FOIA to the application of Regulation 13(1) of the EIR.
9.
Having seen the withheld information, the Commissioner considers that,
apart from the name and contact details of those submitting the
allegation, it constitutes the complainants personal data and is therefore
exempt from disclosure under Regulation 5(3) of the EIR. The
Commissioner has taken into account his guidance on ‘Determining what
is personal data’1 and considers that the information relates to the
complainant because, although it concerns his property, it is used by the
council in deliberations and decisions relating to the complainant, that
being to determine whether to bring enforcement action against him.
As such, the Commissioner has requested that the council reconsider the
request as a subject access request under the Data Protection Act 1998
(‘DPA’) and provide the information to the complainant unless an
1
http://ico.org.uk/for_organisations/guidance_index/~/media/documents/library/Data_Protec
tion/Detailed_specialist_guides/PERSONAL_DATA_FLOWCHART_V1_WITH_PREFACE001.ashx
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exemption under the DPA applies. Any of the complainant’s personal
data is therefore not considered in this decision notice.
10. For the avoidance of doubt, the Commissioner has considered whether
the exception for personal data of which the applicant is not the data
subject at Regulation 13(1) of the EIR applies to the name and contact
details of the person making the allegation.
11. The Commissioner has also considered whether the council holds further
information which would constitute evidence of the alleged breach of
planning regulations.
Reasons for decision
The appropriate legislation – FOIA or EIR?
12. The first matter for the Commissioner to decide is whether the
information is covered by the FOIA or the EIR. Section 39 of the FOIA
states that information is exempt information if the public authority
holding it is obliged, by regulations under section 74 of the FOIA, to
make the information available to the public in accordance with those
regulations or would be so obliged but for any exemption under those
regulations. The regulations under section 74 of the FOIA are the EIR.
Information falls to be considered under the EIR if that information is
environmental information.
13. Regulation 2(1) of the EIR defines ‘environmental information’ as having
the same meaning as in Article 2(1) of Council Directive 2003/4/EC:
“namely any information in written, visual, aural, electronic or any
other material form on –
(a) the state of the elements of the environment, such as air and
atmosphere, water, soil, land, landscape and natural sites including
wetlands, coastal and marine areas, biological diversity and its
components, including genetically modified organisms, and the
interaction among these elements;
(b) factors, such as substances, energy, noise, radiation or waste,
including radioactive waste, emissions, discharges and other releases
into the environment, affecting or likely to affect the elements of the
environment referred to in (a);
(c) measures (including administrative measures), such as policies,
legislation, plans, programmes, environmental agreements, and
activities affecting or likely to affect the elements and factors referred
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to in (a) and (b) as well as measures or activities designed to protect
those elements;
(d) reports on the implementation of environmental legislation;
(e) cost-benefit and other economic analyses and assumptions used
within the framework of the measures and activities referred to in
(c);and
(f) the state of human health and safety, including the contamination
of the food chain, where relevant, conditions of human life, cultural
sites and built structures inasmuch as they are or may be affected by
the state of the elements of the environment referred to in (a) or,
through those elements, by any of the matters referred to in (b) and
(c)’.
14. In the Commissioner’s view, the use of the word ‘on’ indicates a wide
application and will extend to any information about, concerning, or
relating to the various definitions of environmental information.
15. The Commissioner considers that the requested information is
environmental within the meaning of the EIR by virtue of regulation
2(1)(c), as it is information on activities affecting or likely to affect the
land and landscape which are elements of the environment referred to
under regulation 2(1)(a).
Regulation 13(1) – Third party personal data
16. This exception provides that third party personal data is exempt if its
disclosure would contravene any of the Data Protection Principles set out
in Schedule 1 of the Data Protection Act 1998 (“the DPA”).
Is the withheld information personal data?
17. Personal data is defined by the DPA as any information relating to a
living and identifiable individual. Information will relate to a person if it
is about them, linked to them, has some biographical significance for
them, is used to inform decisions affecting them, has them as its main
focus or impacts on them in any way.
18. The information being considered is the name and contact details of the
person making the allegation against the complainant. The
Commissioner is satisfied that such information is personal data as
defined in the DPA.
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Would disclosure breach the Data Protection Principles?
19. The Data Protection Principles are set out in Schedule 1 of the DPA. The
first principle and the most relevant in this case states that personal
data should only be disclosed in fair and lawful circumstances. The
Commissioner’s considerations below have focused on the issue of
fairness. In considering fairness, the Commissioner has taken into
account the nature of the information, the reasonable expectations of
the data subject, the potential consequences of disclosure and balanced
the rights and freedoms of the data subject with the legitimate public
interest in disclosing the information.
Nature of the information and reasonable expectations
20. The council explained that planning enforcement allegations submitted
to the council are done so in confidence and provided the following
statement from its website:
“If you consider that someone is carrying out development which may
not have had planning permission, you should contact an Enforcement
Officer (details at bottom of page). Any complaints received in this
way, unconnected with a particular current planning application, are
confidential, and your name will not be given to the person you have
complained about.”
21. It further explained that the alleged breach was not substantiated and
was not in relation to any current planning applications. It said that no
action was taken by the council as a result of the allegation as there was
no evidence to substantiate the claims and that the name of the person
making the allegation would only enter the public domain if they agreed
to give further evidence in court which is not relevant in this specific
case.
22. In this case, given the nature of the information and the information
provided on the council’s website, the Commissioner is satisfied that the
data subject would have a reasonable expectation of confidentiality and
privacy.
Consequences of disclosure
23. In order to assess the impact of the consequence of disclosure on
whether disclosure would be fair, it is necessary to consider whether
disclosure of the information would cause unwarranted damage or
distress to the data subjects.
24. The council said that persons making allegations of breach of planning
regulations are provided with ‘anonymity’ so that they feed comfortable
and protected in reporting matters to the council.
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25. The Commissioner considers that disclosure would amount to a loss of
privacy which has the potential to cause damage and distress.
Balancing the rights and freedoms of the data subjects with the
legitimate interests in disclosure
26. The Commissioner accepts that in considering ‘legitimate interests’, such
interests can include broad general principles of accountability and
transparency for its own sake along with specific interests which in this
case is knowing the details of who made an allegation.
27. The complainant has said that the information that the council received
is false and ‘can only be described as vindictive’ and wants to know that
no one other than the persons he suspects has a grudge against him. It
is not within the Commissioner’s remit to judge whether the allegation
was false or the motive behind it. He draws attention to the fact that
disclosure under the legislation is akin to disclosure to the public at large
rather than to the requester alone.
Conclusion on analysis of fairness
28. Taking all of the above into account, the Commissioner concludes that it
would be unfair to the party concerned to release their personal data.
Disclosure would not have been within their reasonable expectations and
the loss of privacy could cause unwarranted distress. He does not
consider that any legitimate interests in disclosure outweigh the
reasonable expectations of the party and the right to privacy.
29. As the Commissioner has decided that the disclosure of this information
would be unfair, and therefore in breach of the first principle of the DPA,
he has not gone on to consider whether there is a Schedule 2 condition
for processing the information in question. The Commissioner has
therefore decided that the council was entitled to withhold the name and
contact details of the person making the allegation against the
complainant under the exception at regulation 13(1).
Is further information held?
30. Regulation 5(1) of the EIR states that:
“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.”
31. In cases where a dispute arises over the extent of the recorded
information that was held by a public authority at the time of a request,
the Commissioner will consider the complainant’s evidence and
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argument. He will also consider the actions taken by the authority to
check that the information is not held and he will consider any other
reasons offered by the public authority to explain why the information is
not held. He will also consider any reason why it is inherently likely or
unlikely that information is not held. For clarity, the Commissioner is not
expected to prove categorically whether the information was held, he is
only required to make a judgement on whether the information was held
on the civil standard of the balance of probabilities.
32. In his complaint to the Commissioner, the complainant said ‘Of course
information is held otherwise the Planner’s action to date could not have
occurred’.
33. In its response to the complainant, the council said that it is not
enforcing action on the allegations made and therefore there is no such
'evidence' regarding the matter and that this was confirmed in an email
to the complainant from the Assistant Director of Planning and
Environmental Health on 18 July 2014.
34. The Commissioner asked the council to confirm whether further
information within the scope of the request is held. He noted that the
council said that it is not enforcing action on the allegations made as
there is no such 'evidence' regarding this matter and provided his
opinion that part of the request could be interpreted to include ‘evidence
of the alleged breach’ as provided by the person making the allegation
or otherwise held by the council.
35. The council explained to the Commissioner that there is no evidence of
the breach alleged by the complainant. It provided the only case note
held on planning files in relation to this allegation as evidence that the
allegations are not founded. It clarified that an allegation was
submitted, but no further information to accompany the allegation was
received, and that it holds no further information.
36. The Commissioner understands that the council has a duty to
investigate any planning enforcement reports that it receives and
considers that this explains why the planners had to take some action,
that being an investigation into the matter.
37. In the circumstances, the Commissioner does not consider that there is
any evidence that would justify refusing to accept the council’s position
that it does not hold any information relevant to this request. The
Commissioner is therefore satisfied that on the balance of probabilities,
the information is not held by the council. Accordingly, he does not
consider that there was any evidence of a breach of regulation 5(1) of
the EIR.
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Right of appeal
38. 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: [email protected]
Website: www.justice.gov.uk/tribunals/general-regulatorychamber
39. 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.
40. 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 ………………………………………………
Andrew White
Group Manager
Information Commissioner’s Office
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF
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