Geoffrey Marney v The Information Commissioner (IC) & Anor [2025] UKFTT 720 (GRC)

[2025] UKFTT 00720 (GRC)Case Reference: FT/EA/2024/0469
First-tier Tribunal
(General Regulatory Chamber)
Date 19 June 2025
Information Rights
Before
JUDGE HUGHESMEMBER CHAFERMEMBER TAYLOR
Between
GEOFFREY MARNEYAppellant– and –
Between
[1] THE INFORMATION COMMISSIONER (IC)Respondent[2] EPPING FOREST DISTRICTRespondentCOUNCIlRespondentAppearances:Appellent: In Person for in personFirst Respondent: did not attendSecond Respondent: Ms RokardDecision: The appeal is DismissedREASONS
[1]The Appellant has for some years been concerned about a summer house which was constructed in his neighbour’s garden some years ago and which he claims may present a fire safety hazard to his house. He has had many contacts with the Respondent local council (as well as complaining about its handling of the issues to Ombudsmen) and on 6 February 2024 sought information from the Respondent:
“Is it possible you can release the advice given to the tenant [the complainant’s neighbour], if any, in relation to the building? A quick question, you have sent me a copy of the job description for a service manager. I was discussing with [redacted] about [redacted] who holds the position of "service director". I am sure the job description of "service director for property and housing" was the one that was supposed to be sent? If such job description exists, is it possible to get a copy? EFDC's structure of management suggests service director and service manager are two different roles.”
[2]On 19 February 2024 the Respondent replied that the request was for third party information; it subsequently supplied job descriptions for service manager and service director. On 5 April, following a Local Government and Social Care Ombudsman decision not to investigate a complaint about an employee, the Respondent confirmed that it considered it had “fully responded” to the Appellant’s concerns.

The Decision of the Information Commissioner

[3]The Appellant complained to the First Respondent (the Information Commissioner) who investigated and issued his decision notice IC-305776-S9P3 on Bonfire Night 2024 which addressed the issue of whether the Council was entitled to rely on the exemption from disclosure in regulation 13(1) (personal information) of the Environmental Information Regulations to withhold the advice it had given to the neighbour.[4]He concluded that it was personal data as defined by the Data Protection Act s3(2):
“any information relating to an identified or identifiable living individual”
[5]He then considered whether it could be disclosed in accordance with Article 5(1) of the GDPR: “Personal data shall be processed lawfully, fairly and in a transparent manner in relation to the data subject”.[6]He then considered whether under Article 6(1)(f) it could be lawfully processed (disclosed): “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.[7]In considering the threefold test, the existence of a legitimate interest, whether the disclosure was necessary to achieve that interest and the balance between that interest and the rights of the data subject the Commissioner commented (DN paragraph 41): In this case, the specific interest being pursued is to understand whether specific advice was given to the complainant’s neighbour by the council. The Commissioner is unaware of any other avenue by which the complainant could obtain this information.[8]The Commissioner considered that there was no less intrusive means of achieving the legitimate objective and on the basis that the first two parts of the test were met then considered where the balance should be struck.[9]He then considered the reasonable expectations of the neighbour that the information would be disclosed, whether it could result in unjustified damage or distress to the neighbour, the possibility that it could be a tool in a neighbour dispute, where it could be misinterpreted (DN45-48). He found:49. It is also the Commissioner’s view that the data subject would have a reasonable expectation that their communications with the council would not be shared with any other party, particularly in view of the fact that disclosure under the EIR is not limited to only the requester, but to the world at large. The council does not appear to have sought the consent of the individual concerned; however, the Commissioner considers that it is unlikely to have been appropriate to do so in this case.50. The Commissioner also notes that whilst he does not consider the council and ombudsman complaints procedures to completely satisfy the specific legitimate interest identified in this case, they do go some way to satisfying the more general interests in planning laws being upheld.51. Based on the above factors, the Commissioner has determined that there is insufficient legitimate interest to outweigh the data subjects’ fundamental rights and freedoms. The Commissioner therefore considers that Article 6(1)(f) does not apply in this case, and so there is no Article 6 lawful basis that can be relied on to make the disclosure of the requested information lawful.52. Given the above conclusion that disclosure would be unlawful, the Commissioner does not need to go on to consider whether disclosure would be fair or transparent. The Appeal[10]In his grounds of appeal the Appellant explained that the Council fulfilled many roles related to this issue. It was the neighbour’s landlord (in which capacity it insured the property against fire), it was responsible for planning permissions and building control (and had retrospectively approved the erection of a large “summerhouse” in the neighbour’s garden next to his fence on the basis of what the Appellant claimed was misleading information as to the lack of need for building control approval) and it was the data controller.[11]Against this background he had sought information from the Council relating to its handling of the building control issue, safety inspections and related matters. He claimed:
“that the safety of the council's tenants, my family and home and the council's property portfolio are at risk and this needs to face great scrutiny. The available details are in the Buildings Control report and the expectations of the tenant must be diminished in light of their lack of willingness to take action”
[12]In support of his appeal he submitted a large number of documents (some supplied as a result of FOI requests) including much material sent by the Council to his neighbour on this subject, photographs and emails including one sent to him on 10 February 2023: Hi Mr Marney I understand that a recent [visit] was carried out by my colleague [name redacted] since the visit I have had confirmation from the property assets team that the summer house is fine with no concerns to alter, move or knock down. They have not given me specifics however given that the visit has been undertaken I am satisfied that there is nothing for team to do at this stage. I am hoping that this is sufficient to resolve your matter”[13]In resisting the appeal the Commissioner relied on his decision notice. The Second Respondent noted that the Appellant did not appear to challenge the contention that this material was personal data, but appeared to argue that the various capacities in which the Council operated had not been properly considered by the Information Commissioner in coming to his decision. The Second respondent contended that the Information Commissioner had taken cognisance of this, however the various capacities as landlord, building control authority, planning authority and data controller did not make the release the data lawful where it would otherwise not have been.[14]In his skeleton argument the Appellant argued that the issue was whether health safety and human rights outweighed the data protection rights. He stated that:
“the Appellant has been given good advice that the “summerhouse” in question is not compliant with building regulation and is a safety hazard for the council tenant who owns it, and the adjacent properties including the Appellant's.”
[15]He argued that he had tried every means of obtain the information, he was fact-checking, this was not a “nosy neighbour” issue. He argued that the tenancy agreement the neighbour had entered into gave him rights not to be adversely affected by the erection of the summer house and that neither those, nor questions of safety had been properly addressed when giving retrospective consent to the summer house. He argued that there had been maladministration and safety had not been properly considered and referred to a statement by the Equalities and Human Rights Commission relating the Inquiry into the Grenfell Fire.[16]In his oral presentation he emphasised the efforts he had gone to in seeking information from the Council, recognising that one of them had been termed vexatious[17]In closed session the tribunal questioned Counsel for the Second Respondent on the contents of the withheld material.[18]Counsel for the Second Respondent maintained the position set out in paragraph 12 of its reply: None of these allegations are either proven or properly put as allegations that the Appellant has any valid course of action in respect of the same or grounds for the information requested to be disclosed under the EIR. The simple fact that the appellant contends that the Counsel has committed some sort of legal fault is not sufficient in and of itself for the material requested (which is limited to “the advice given to the tenant the appellant’s neighbour, if any, in relation to the building”) to be disclosable under the EIR Consideration[19]The Appellant is aggrieved by the presence of a large summerhouse in his neighbour’s garden immediately adjacent to the fence separating the two properties. He has pursued many requests for information and lines of complaint. He has acquired a large amount of documentary material relating to the issue which he attached to his grounds of appeal.[20]The question for this tribunal is not whether there has been maladministration, but whether the Information Commissioner’s decision notice was correct in law; that the request was for personal information and the balance between his legitimate concerns weighs in favour of non-disclosure. The Appellant has not directly argued that the material would not be personal information; since what he requested was “the advice given to the tenant, if any” it is hard to see how it could not meet the definition of personal data.[21]Furthermore while the Appellant has a legitimate interest in understanding the how’s and why’s of the summer house near his fence he had accumulated a substantial amount of information on the issue before he formulated this specific request in the way he did. Any disclosure would not have added any meaningful information to that which he already held in February 2024. Although the Appellant has put a number of arguments strongly they lack substance, the issues have been explored in various ways by the Council and have been submitted to the Ombudsman and that has resulted in a significant degree of scrutiny.[22]The tribunal is entirely satisfied that the balance between his “legitimate interest” and the interests of his neighbour in the personal data are strongly, in favour of non-disclosure. The decision and reasoning of the Commissioner are clearly robust.[23]The Appellant has sought costs arising out of a miscommunication between the Second respondent and the tribunal as to the listing of the hearing. In all the circumstances the tribunal does not consider an award of costs appropriate.[24]The appeal is dismissed. Hughes 17 June 2025

Cited in 1 later judgment