Geoffrey Marney v The Information Commissioner & Anor [2026] UKFTT 714 (GRC)

[2026] UKFTT 00714 (GRC)Case Reference: FT/EA/2025/0292
First-tier Tribunal
General Regulatory Chamber
Date 20 May 2026
Information Rights
Decided without a hearing
Before
TRIBUNAL JUDGE SOPhiE BUckleyTRIBUNAL MEMBER MIRIAM SCOTTTRIBUNAL MEMBER SUSAN WOLF
Between
GEOFFREY MARNEYAppellantThe Information commissionerRespondentEPPING FOREST DISTRICT COUNCILRespondentDecision:1.The appeal is dismissed.REASONS

Introduction

[1]The parties and the tribunal agreed that this appeal was suitable for determination on the papers.[2]This is an appeal against the Commissioner’s decision notice IC-353477-H2W4 of 7 July 2025 in which the Commissioner held that the Council should have considered the information under the EIR and that it was only partially correct to withhold information under regulation 13(1).[3]The Commissioner ordered the Council to take the following steps to ensure compliance with the legislation. 3.1. to carry out adequate and appropriate searches to locate any information falling within the scope of part 3 of the complainant's request for information, and to respond to this part of the request again as required by Regulation 5(1) of the EIR. 3.2. To respond to the request regarding whether the person named as a surveyor was a chartered surveyor or had professional qualifications.

Rule 14

[4]Under our continuing duty to ensure that no more than is necessary is withheld from the appellant, we have reviewed the rule 14 order in relation to the closed bundle. The only document in the closed bundle appears in full in the open bundle, subject to minor and irrelevant redactions (of names, signatures and telephone numbers). It is the letter to his neighbour dated 20 March 2019 plus the attachments, which the appellant refers to as ‘EV3’.[5]On that basis we are not satisfied that it is necessary for there to be a closed bundle. Accordingly, we have reached our decision on the basis of the open bundle.[6]Mr. Marney has applied for an index of the closed bundle. This is not necessary as the information is contained in the open bundle and it was not necessary for us to take account of the closed bundle in reaching our decision.

Factual background

[7]This appeal arises out of concerns that Mr. Marney has about a summerhouse built in the garden of a neighbouring residential property owned and let by the Council. Broadly, Mr. Marney’s view is that the Council should not have permitted or should have prevented the summerhouse from being built in its current form. Request, Decision Notice, and appeal The request and the response

Request, Decision Notice, and appeal

[8]This appeal deals with two requests.[9]Mr Marney made the first request on 19 November 2024 to the Council as follows:
“1) Can you please provide confirm if the Senior Property Surveyor carried out an appraisal at the council’s property [address redacted] relating to the large wooden summerhouse in the rear garden. 2) If the Senior Property Surveyor or similar person carried out a report can you please provide it. 3) If the Senior Property Surveyor did not carry out a review, can you please provide any advice provided by the council’s housing teams in relation to the previously mentioned structure at the property at all and any point in time.”
[10]Part 3 of this request is referred to as ‘the request for the advice’.[11]The Council responded on 11 December 2024 and answered the question asked in part 1. In relation to part 2 the Council said that no report was held. It refused the request for the advice under section 40(2) FOIA personal data.[12]Mr. Marney made the second request on 11 December 2024 in two parts as follows: Can you just confirm is the surveyor you are referring to is a “chartered surveyor” or is this someone/yourself/EFDC using the term “surveyor” but holds no professional qualifications and is not regulated by any “body”. Would you also name [the] person described as the ‘surveyor’.”[13]There are two parts to this second request. They are referred in this decision as ‘the request for the surveyor’s qualifications’ and ‘the request for the surveyor’s name’.[14]The Council replied, in the form of an internal review on 16 December 2024 and maintained its position in relation to section 40(2).[15]The Council indicated in that letter that it would rely on section 14(1) (vexatious requests) in relation to any future requests on the topic of the summerhouse.[16]In the course of the Commissioner’s investigation the Commissioner highlighted to the Council that the request should have been dealt with under EIR. The Commissioner asked the Council to confirm if they intended to rely on regulation 12(4)(b) (manifestly unreasonable requests) and they did not so confirm.

Decision notice

[17]In a decision notice dated to 7 July 2025 the Commissioner held that the EIR was the appropriate regime because the request was for environmental information.[18]The Commissioner held that there were two distinct requests for information rather than a request and an application for a review.[19]In relation to the request for the advice the Commissioner noted that it was a similar request to one he had considered in IC-305776-S9P3 in which he had determined that the information could be withheld under regulation 13 EIR (personal data). That decision was upheld by the First-tier Tribunal in FT/EA/2024/0469 (and is currently on appeal to the Upper Tribunal).[20]The Commissioner relied on the arguments he set out in that decision notice and the decision of the First-tier Tribunal. At the end of paragraph 25 he said ‘The Commissioner has therefore decided that the council was correct to apply Regulation 13 of the EIR to withhold it from disclosure in this case’.[21]However, the Commissioner decided that the request was wider that the request considered in IC-305776-S9P3 and therefore required the Council to carry out adequate and appropriate searches to locate any relevant information falling within the wider scope of the complainant's request for information, and to respond to this part of the request again as required by Regulation 5(1) of the EIR.[22]In relation to the request for the surveyor’s qualifications and the request for the surveyor’s name, the Commissioner held that the Council was entitled to withhold the surveyor’s name but not the professional qualifications under regulation 13 EIR. He required the Council to respond to that part of the request.

Notice of appeal

[23]In essence, the grounds of appeal in relation to the request for advice are that: 23.1. the Commissioner should have concluded that some of the information was Mr. Marney’s own personal data because he owns the adjacent property and therefore the advice had an impact on him. 23.2. his legitimate interests outweigh the rights and freedoms of the individual because: 23.2.1. he needs to see the advice to check the performance of a contract of which he has the benefit 23.2.2. the Council is a public body and the summerhouse is in the curtailment of a publicly owned social housing property 23.3. the information requested in IC-305776-S9P3 and FT/EA/2024/0469 was different because he said that request related to Buildings control inspection advice[24]In relation to the request for the name of the surveyor, the grounds of appeal in essence are that the Commissioner reached the wrong conclusion because Mr. Marney needs to know the name of the surveyor in order to raise concerns with a professional body.

The Commissioner’s response

[25]The Commissioner asserted that the appeal only relates to the request for the surveyor’s name. He asserted that he had not made any determination in relation to the request for the advice. He said that he had ordered the Council to carry out further searches and respond again to the request for the advice. He also said that the appeal cannot encompass issues that have already been determined in FT/EA/2024/0469.[26]On the request for the surveyor’s name he relied on his decision notice.

The Council’s response

[27]The Council submitted that: 27.1. the information was properly characterised as the tenant’s personal data; 27.2. the Commissioner applied Article 6(1)(f) correctly and his balancing exercise was lawful and reasonable; 27.3. the appellant’s contractual/third-party arguments do not convert the tenant’s personal data into the appellant’s own personal data or otherwise displace the privacy interests of the tenant; and 27.4. disclosure of the name of the surveyor would be disproportionate — the Commissioner was right to require only disclosure of professional status. The appeal should be dismissed.[28]The Council stated as follows: “the Council would invite the Tribunal to make a finding of fact supportive of the Council’s determination that the Appellant is a vexatious and repetitive applicant in FOI / EIR matters”.[29]The Council submitted that the tribunal should give proper weight to the previous decision in FT/EA/2024/0469.

The appellant’s reply

[30]We have taken account of Mr. Marney’s arguments in his reply.

Legal framework

[31]The relevant provisions of the EIR are regulations 5(3) and 13(1) and (2A):
“Duty to make available environmental information on request 5-(1) 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. … (3) To the extent that the information requested includes personal data of which the applicant is the data subject, paragraph (1) shall not apply to those personal data. Regulation 13 Personal data 13-(1) To the extent that the information requested includes personal data of which the applicant is not the data subject, a public authority must not disclose the personal data if— (a) the first condition is satisfied, or (b) the second or third condition is satisfied and, in all the circumstances of the case, the public interest in not disclosing the information outweighs the public interest in disclosing it.

(a) would contravene any of the data protection principles, or…”

Regulation 13 Personal data

[32]Personal data is defined in s 3(2) of the Data Protection Act 2018 (DPA) as: Any information relating to an identified or identifiable living individual[33]‘Identifiable’ means a living individual who can be identified, directly or indirectly. It must be possible to identify an individual using all the information that is reasonably likely to be used, including information that would be sought out by a motivated inquirer. Identifying a pool that contains or may contain a person is insufficient. It is not sufficient to say that a person is reasonably likely to be covered by the data (NHS Business Services Authority v Information Commissioner and Spivak[2021] UKUT 192 (AAC)).[34]Article 5(1) GDPR states that personal data must be processed ‘lawfully and fairly’. In order to be lawful, one of the lawful bases of processing in article 6(1) GDPR must apply. The only potentially relevant basis here is article 6(1)(f): 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 requires protection of personal data, in particular where the data subject is a child.[35]The case law on article 6(1)(f)’s predecessor established that it required three questions to be answered, which we consider are still appropriate if reworded as follows: 1. Is the data controller or a third party pursuing a legitimate interest or interests? 2. Is the processing involved necessary for the purposes of those interests? 3. Are the above interests overridden by the interests or fundamental rights and freedoms of the data subject?[36]The public interest test under the EIR requires us to analyse the public interest. The starting point is the content of the information in question, and it is relevant to consider what specific harm might result from the disclosure (Export Credits Guarantee Department v Friends of the Earth[2008] EWHC 638 paragraphs 26-28). The public interest (or various interests) in disclosing and in withholding the information should be identified; these are “the values, policies and so on that give the public interests their significance” (O’Hanlon v Information Commissioner [2019] UKUT 34 at paragraph 15). “Which factors are relevant to determining what is in the public interest in any given case are usually wide and various”, and will be informed by the statutory context (Willow v Information Commissioner and the Ministry of Justice[2018] AACR 7 paragraph 48)

The task of the Tribunal

[37]The tribunal’s remit is governed by s.58 FOIA. This requires the tribunal to consider whether the decision made by the Commissioner is in accordance with the law or, where the Commissioner’s decision involved exercising discretion, whether she should have exercised it differently. The tribunal may receive evidence that was not before the Commissioner and may make different findings of fact from the Commissioner.

Issues

[38]The issues that arise under regulation 13 are: 38.1. Is the requested information the personal data of a third party? 38.2. If so, are the conditions in article 6(1)(f) met i.e. 38.2.1. Is the data controller or the third party or parties to whom the data is disclosed pursuing a legitimate interest or interests? 38.2.2. Is the processing involved necessary for the purposes of those interests? 38.2.3. Are the above interests overridden by the interests or fundamental rights and freedoms of the data subject?

Evidence and submissions

[39]We have taken account of an open and a closed bundle of documents and a skeleton argument from the appellant. Discussion and conclusions The request for the advice

Discussion and conclusions

[40]Paragraphs 22 to 25 of the decision notice read as follows:
“The Commissioner notes that this is a request for information similar to that which was requested by the complainant in a request dated 6 February 2024 which the Commissioner considered in case IC-305776S9P3. This request was for: “Is it possible you can release the advice given to the tenant [the complainant’s neighbour], if any, in relation to the building?” 23. The Commissioner’s decision was that the information was personal data relating to the complainant's neighbour, and that the council was correct to withhold this under Regulation 13 of the EIR. That decision was subsequently appealed in FT/EA/2024/0469, however the First-tier Tribunal upheld the Commissioners decision on 19 June 2025. 24. The Commissioner does not intend to reiterate the same arguments as stated in case IC-305776-S9P3, but relies upon them in this case. Additionally, he relies upon the reason for the decision of the Tribunal outlined in appeal decision FT/EA/2024/0469. 25. In short, the Commissioner recognises the requested advice to the tenant to be personal data belonging to the complainant's neighbour. He considers that the complainant does have a legitimate interest in having access to the information, and that its disclosure would be necessary in order to meet this legitimate interest. However, in conducting the balancing test between the legitimate interests and the data subject’s interests or fundamental rights and freedoms, he finds that these legitimate interests are outweighed by the neighbour’s rights and freedoms under the DPA. This is because its disclosure would be unexpected and an unwarranted intrusion into the neighbour’s rights. The Commissioner has therefore decided that the council was correct to apply Regulation 13 of the EIR to withhold it from disclosure in this case.”
[41]We reject the Commissioner’s submission that he did not make a determination in relation to the request for advice. In relation to the advice that the Council had decided fell within the scope of the request, he noted that the same advice had been considered in FT/EA/2024/0469 and, adopting the reasons in his earlier decision notice and the reasons of the tribunal in that appeal he said: The Commissioner has therefore decided that the council was correct to apply Regulation 13 of the EIR to withhold it from disclosure in this case’.[42]That is a determination which can be appealed and which the appellant has appealed in this case.[43]We exercise a full merits review. We have not adopted the reasoning of the Commissioner in the previous decision notice nor of the tribunal in FT/EA/2024/0469 but we have reached the same conclusion as the Commissioner did namely that the Council was entitled in this appeal to rely on regulation 13 to withhold the advice.[44]We do not need to determine whether the information in the advice is Mr. Marney’s personal data. We are not considering an appeal against a refusal to supply information in response to a subject access request. If we were to conclude that the information was also or in part Mr. Marney’s own data that would not assist him in this appeal, because, to the extent that the information requested includes personal data of which the applicant is the data subject, the duty to supply information under EIR does not apply. This argument is therefore not material, because, even if the tribunal agreed with Mr. Marney, it could not result in any different outcome.[45]Mr Marney already has a copy of the withheld information. He has produced it for the purposes of these proceedings. It is the letter to his neighbour dated 20 March 2019 plus the attachments. Mr. Marney’s version redacts the occupier’s full name, telephone number and signature, but otherwise it is identical to the withheld version. No substantive content has been redacted.[46]Whether or not that information is also or includes Mr. Marney’s personal data, we conclude that it is the personal data of his neighbour. The neighbour is identifiable both from the details included in the information and from the terms of the request The information was used to inform decisions about the neighbour, it has a potential impact on them and is obviously ‘about’ them, because it concerns a decision in relation to the building by them of a summerhouse.[47]We accept that Mr. Marney has a legitimate interest in understanding why his neighbour was able to build a summerhouse near his fence. As Mr. Marney already has a full copy of the substantive content of the withheld information, it is not reasonably necessary for that information to be disclosed under EIR for the purposes of that legitimate interest. Disclosure would not add any meaningful information to that which he already holds. Nor do we accept that there is any other legitimate interest for the purposes of which it is necessary to publish this correspondence more widely.[48]For those reasons the appeal in relation to the request for the advice is dismissed.

The request for the name of the surveyor

[49]There is no dispute that the name of the surveyor is personal data.[50]We accept that the appellant has a legitimate interest in wishing to make a complaint to a relevant professional body. We do not accept that there is any other legitimate interest in the surveyor’s name.[51]In response to an order from the tribunal the Council confirmed that the surveyor in question is not a member of nor regulated by any professional body. For those reasons we find that it is not reasonably necessary for the name to be disclosed to the appellant because there is no legitimate interest in knowing this surveyor’s name.

Overall conclusion

[52]For those reasons we find that the Council was entitled to withhold the name of the surveyor and the advice and the appeal is dismissed. Signed Date: Sophie Buckley 12 May 2026