Council loses appeal over FOI request for names of those who submitted consultation responses as part of their public-facing roles

Cambridgeshire County Council must release the names of individuals in a public-facing role, including councillors and officials, who submitted consultation responses on behalf of stakeholder groups, despite a promise in the consultation document that said the local authority would not publish any personal details unless specifically indicated, the First Tier Tribunal has ruled.

In Cambridgeshire County Council v The Information Commissioner & Anor [2024] UKFTT 269 (GRC), the tribunal dismissed an appeal by the council, concluding that any reasonable elected official or public-facing individual submitting a response "on behalf of a stakeholder group would assume that the data protection statement was only intended to apply to those who were submitting responses as private individuals". [emphasis in judgment]

The dispute centred around a consultation held by the council in 2021 on a number of active travel schemes around the county.

In a disclaimer attached to the consultation survey, the council said: "We will not publish any personal details you do give us unless specifically indicated, but we may publish your response and include it in public reports, with personal details removed."

According to the council, the consultation received responses from 27 people that were declared to be on behalf of electoral constituents or public bodies.

In October 2022, Simon Eden-Green requested the names of these respondents and details of their responses "in the public interest of transparency and accountability".

The council provided some information but not all of the information that was requested, citing 40(2) of the Freedom of Information Act 2000, which concerns personal information.

Eventually, Eden-Green complained to the Information Commissioner's Office.

After conducting its own investigation, the Commissioner found that the information constituted personal data but concluded that it should be disclosed as the public "have a right to know how their elected representatives conduct their roles and what views they may submit for a public consultation".

The decision notice added: "People in an elected position will also have an expectation of greater scrutiny than a normal member of the public."

It said that the public authority's application of section 40(2) of FOIA to this part of the request was, therefore, incorrect.

Cambridgeshire then appealed to the First-tier Tribunal, which heard the case on 11 March 2024, arguing that the Commissioner did not consider whether processing of the personal information via disclosure under FOIA would be fair and transparent under the first data protection principle.

It also argued that release of the personal information would not be fair and transparent.

The tribunal found that it needed to determine the following:

1, Would disclosure be lawful:

1.1 Is the data controller or a third party pursuing a legitimate interest or interests?

1.2 Is the processing involved necessary for the purposes of those interests?

1.3 Are the above interests overridden by the interests or fundamental rights and freedoms of the data subject?

2. Would disclosure be fair and transparent?

The tribunal concluded that there was a legitimate interest in knowing how elected officials or other publicly facing individuals had responded to such a consultation on behalf of those they represent.

It also accepted that there was a legitimate interest in knowing which representative has submitted those comments and views.

"In our view it is necessary for both those legitimate interests to disclose the names and identifying roles of those individuals responding as stakeholders. We do not accept that the legitimate aim could be satisfied by any less intrusive means," it said.

Considering the fundamental rights and freedoms of the data subjects, the tribunal concluded that: "In our view, any reasonable elected official or public facing individual submitting a response on behalf of a stakeholder group would assume that the data protection statement was only intended to apply to those who were submitting responses as private individuals. It is clearly, in the tribunal's view, not intended to apply to those submitting stakeholder responses and would not be read as such by a reasonable person."

It said: "....even in the light of the data protection statement there would be no reasonable expectation of privacy in these circumstances and that disclosure would have been within the reasonable expectations of those individuals".

On the fairness and transparency argument, the tribunal said it did not accept that the fact that some individuals had refused to provide consent "renders disclosure unfair or not transparent" as they should have been aware that when carrying out public tasks in a representative role their personal data might be published.

Ultimately, the tribunal concluded that the council was not entitled to withhold the requested information under section 40(2) or section 41 FOIA.

Adam Carey