Gerry Woodhouse v Information Commissioner [2025] UKFTT 638 (GRC)

[2025] UKFTT 00638 (GRC)Case Reference: FT/EA/2024/0287
First-tier Tribunal
(General Regulatory Chamber)
Date 04 June 2025
Information Rights
Before
JUDGE HUGHESMEMBER COSGRAVEMEMBER SIVERS
Between
gerry woodhouseAppellantINFORMATION COMMISSIONERRespondentCases:OFCOM v Morrissey and the Information Commissioner [2011] UKUT 116 (AAC)Lampert v Information Commissioner: [2019] UKUT 60 (AAC)Town Investments Ltd. and Others v Department of the Environment [1978] A. C. 359Decision: The appeal is DismissedREASONS
[1]The Appellant has for some years been interested in the actions of a parish council in Yorkshire. He has made information requests and has pursued some of these with the Respondent. He has recently pursued two issues relating to contact between the Respondent and the parish council.[2]In the course of correspondence with an officer of the Respondent on 20 November 2023 he wrote:
"I also wish to thank you for 'flagging' concerns to your 'Group Manager' and I would also be most grateful to receive a copy of whatever advice was sent to Potto council…. see excerpt below from its October 2023 minutes. ‘Email from ICO commissioner. Discussed policy from ‘What do they know’ and ‘FOI’ about pseudonyms.’”"
The minutes of the meeting of the parish council of 17 October 2023 under “Matters arising” record - ICO - Freedom of information requests and reviews • Discussed the meeting with the ICO. • Discussed requests for internal reviews, it was noted that the requests have been received from persons outside the parish. • A review of the responses to these requests was undertaken, it was agreed that the original responses were correct. Email from ICO commissioner. Discussed policy from ‘What do they know’ and ‘FOI’ about pseudonyms. The minutes for 21 November 2023 record very similar points under “Matters Arising” 4.8 ICO - Freedom of information requests and reviews • Discussed the meeting with the ICO. Discussed policies from ‘What do they know’ and ‘FOI’ about pseudonyms. • Discussed requests for internal reviews, it was noted that the requests have been received from persons outside the parish. • A review of the responses to these requests was undertaken, it was agreed that the original responses were correct.[3]On 26 November the Appellant made a further request for information from the Respondent by reference to the minute of the meeting of the parish council in October 2023: “Please can you send me information confirming the nature and detail of this “meeting” including the advice or Recommendations made by the ICO[4]On 8 December the Respondent Information Commissioner confirmed his understanding of both requests; that the first request was for advice the ICO had provided to the Parish Council which had been referred to in the 17th October minutes and the second request was for any advice or recommendations given in a meeting of 23 October. He refused to provide the requested information on the basis of a statutory prohibition on disclosure.[5]On 22 July 2024 the Information Commissioner in decision notice IC-297000-T5M8 maintained that position. The decision relied on s44 of the Freedom of Information Act, which provides (so far as is relevant): 44 Prohibitions on disclosure.

(a) is prohibited by or under any enactment,

[6]The statutory prohibition which the Information Commissioner relied upon is set out in the Data Protection Act 2018 which in PART 5 (sections 114 – 141) provides for the existence of the Information Commissioner and sets out much of the legal framework within which he operates; including most relevantly s132 which provides:- 132 Confidentiality of information(1) A person who is or has been the Commissioner, or a member of the Commissioner's staff or an agent of the Commissioner, must not disclose information which— (a) has been obtained by, or provided to, the Commissioner in the course of, or for the purposes of, the discharging of the Commissioner's functions, (b) relates to an identified or identifiable individual or business, and (c) is not available to the public from other sources at the time of the disclosure and has not previously been available to the public from other sources, unless the disclosure is made with lawful authority.(2) For the purposes of subsection (1), a disclosure is made with lawful authority only if and to the extent that— (a) the disclosure was made with the consent of the individual or of the person for the time being carrying on the business, (b) the information was obtained or provided as described in subsection (1)(a) for the purpose of its being made available to the public (in whatever manner), (c) the disclosure was made for the purposes of, and is necessary for, the discharge of one or more of the Commissioner's functions, (d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (e) the disclosure was made for the purposes of criminal or civil proceedings, however arising, or (f) having regard to the rights, freedoms and legitimate interests of any person, the disclosure was necessary in the public interest.(3) It is an offence for a person knowingly or recklessly to disclose information in contravention of subsection (1)[7]In responding to the arguments Mr Woodhouse advanced for the disclosure of the information; the Commissioner in DN paragraph 11 stated: The ICO went on to explain that section 132(2) of the DPA lists circumstances in which a disclosure can be made with lawful authority but that none of them applied in this case. As a result, the information was exempt from disclosure.[8]In his grounds of appeal Mr Woodhouse gave an account of the parish council; his criticisms of it and made certain criticisms of the Information Commissioner’s handling of his concerns and the Commissioner’s approach to the problems of the parish council. He further argued that:• The Commissioner should publish the advice he had given since it was in the public interest so to do; it was “perverse… applying s44(1) to my request is inappropriate – it is plain wrong”.• The information was provided by the Commissioner not to the Commissioner; accordingly it did not fall within s132(1)(a)• It related to a parish council not an individual or a business therefore not within s132(1)(b)• The information was discussed during a public meeting of the council and accordingly should have been published in the council minutes but wasn’t; affectively it had been disclosed at the time• The Commissioner could have published the information on his website as “Regulatory Action” and it would then have been published “with lawful authority”• One of the functions of the Commissioner is to promote good practice (s47 FOIA) accordingly it should have been published to achieve this.• He submitted that s132(2) c and f applied to the publication – the discharge of the Commissioner’s functions by and the public interest in the disclosure. These gateways to disclosure applied and the Commissioner was incorrect in his conclusion that they did not.[9]In resisting the appeal the Commissioner contended:• There is a significant difference between formal notices he issues during an investigation and advice he may give in the normal course of day-to-day activities. The criminal sanctions for unauthorised disclosure were another significant distinction which affected the decision about disclosure.• The information in the advice was largely based on the information provided to the Commissioner• Relying on the Upper Tribunal decision in Lampert, the Commissioner argued that a public authority was a business “I turn to the context. If the word “business” in section 59 (1) of DPA 1998 were to be given the limited interpretation for which Mr Lampert contended, it would mean that a very considerable number of the public authorities covered by schedule 1 of FOIA, namely, those which are governmental or not for profit organisations would not be caught be section 59(1). The requester would therefore be enabled to obtain by the back door (i.e. from the Information Commissioner) what he could not obtain by the front door (i.e. from the public authority directly). Such a result gives rise to a nonsense and cannot be what Parliament intended. Furthermore, as Mr Metcalfe pointed out, if this was the true construction of section 59, this would mean that public authorities would become reluctant to reveal to the Commissioner information, which could subsequently become disclosed by what I have described as “the back door”. I am satisfied for the above reasons that the word “business” in section 59 cannot be limited to bodies which are engaged in commercial activity but encompasses anybody engaged in regular professional activities, including all those bodies listed or included in schedule 1 to FOIA which are not-for-profit organisations.”• Noting the statement that the contents of the advice were not recorded in the minutes of the Parish council meeting “the Commissioner is confident in maintaining s132(1)(c) that the withheld information has not been made available to the public at the time of disclosure and has not previously been available to the public from other sources”.• In dealing with the claims that s132(2) (c) and (f) applied the Commissioner argued that the Upper Tribunal decision in Ofcom v Morrissey, Information Commissioner established that the exercise of a discretion by a public authority in the exercise of its functions was not something that the Information Commissioner and therefore the tribunal in considering an appeal, could review.• He further argued that a decision that was “necessary in the public interest, with the potential for a criminal sanction for an unauthorised disclosure, was distinct from the decision on the balance of public interest which was the more usual matter for consideration under FOIA. This presented a high bar which Mr Woodhouse’s arguments did not approach. c[10]In his reply Mr Woodhouse maintained the position set out in his grounds of appeal. There was no statutory bar on disclosure since 132 (2) (c) and (f) provided a gateway to disclosure, the Commissioner had incorrectly conflated the confidential discussions he had had with the parish council, the disclosure of which was not sought, with the advice he had given, which should be disclosed. He dwelt at length on his concerns about the parish council and argued “furthermore, it is a really BIG public interest matter that information requesters are treated with respect by Potto council”. He argued the Commissioner was wrong in claiming that the council had not made the information available since it had been discussed at several public meetings.

Consideration

[11]One feature of this case which has caused some confusion for Mr Woodhouse is that the Commissioner has had two roles; as a public authority of which an information request is made, and as the public authority responsible for regulating the discharge of their responsibilities under FOIA of public authorities (including itself). These functions are distinct. The failure to appreciate this has led Mr Woodhouse into error. How the Commissioner acts as a public body holding information and how it provides guidance to other bodies are distinct questions.[12]Mr Woodhouse has argued that he is seeking the advice provided, not the information sent to the IC and as such the request is not caught by s132 (1)(a) as it was not provided to the Commissioner. The difficulty with this approach is the intimate relation between a question and an answer. Outwith certain political processes (where answers have little relation to questions) an answer provides substantial information about the question. An examination of the withheld material confirms this. If the answers were to be disclosed then information about the questions would be disclosed and the confidentiality protected by s132 would be set aside.[13]The argument that a parish council does not fall within the protection of s132 is equally unsound. One of the definitions of a business given by the Oxford English Dictionary is “a task appointed or undertaken; a person’s official duty, part or province; function, occupation.” As Lord Diplock said in Town Investments;- “The word “business” is an etymological chameleon; it suits its meaning to the context in which it is found. It is not a term of legal art and its dictionary meanings, as Lindley LJ pointed out in Rolls v Miller (1884) 27Ch.D. 71 at 88, embrace ‘almost anything which is an occupation, as distinguished from a pleasure – anything which is an occupation or duty which requires attention is a business.’ “[14]The decision in Lambert, which follows Town Investments is binding authority on the interpretation of this provision of FOIA for the tribunal.[15]S132 (1) c provides for protection for material which “is not available to the public from other sources at the time of the disclosure and has not previously been available to the public from other sources”. The “time of disclosure” is the date the request was made; as two distinct requests were made on dates in late November. While the existence of the information was disclosed, the assertion, “The fact that Potto council DID MAKE the withheld information available to the public during four council meetings that each were open to and some attended by, the public. The fact is that Potto council failed to record a summary of the withheld information in the meeting minutes for each of those meetings.” is an overstatement. While the existence of the information was disclosed, the detail of the “recorded information” appears not to have been made available to the public at the meetings or subsequently; accordingly the tribunal is satisfied that the material has not been available to the public.[16]The decision of whether, and if so how, to publish a version of advice he has given in a way which does not breach confidentiality obligations is a matter for the Commissioner. This would involve reviewing and developing his current guidance publications including considering the value of such publication and the existence of any gaps in published advice. In essence these are editorial matters for the Commissioner, not subject to the jurisdiction of the tribunal. The decision in Ofcom clearly identifies a limit to the power of the tribunal in this regard. The disclosure of the material is not necessary for the Commissioner’s functions 132(2) c, nor is there meaningful public interest in disclosure.[17]The tribunal is satisfied that there is no merit in this appeal and the decision of the Commissioner is clearly correct. Signed Date: 4 June 2025 Hughes

Cited in 1 later judgment