Information Rights Tribunal orders council to disclose information on noise dispute

The Royal Borough of Kensington & Chelsea (RBKC) has been given 35 days to disclose information in a lengthy dispute about noise from a piano.

Resident Annette Carrabino took the matter to the First-tier Tribunal (General Regulatory Chamber) Information Rights after the council refused disclosure and the
Information Commissioner agreed with it.

Judge Neville explained the dispute concerned noise from piano practice by Ms Carrabino’s son James, who was a Young Musician of the Year finalist in 2015.

A Mr Baptista, who lives next door, gained a noise abatement notice from RBKC but the Carrabinos successfully appealed, and District Judge Roscoe in the Magistrates Court ordered RBKC to pay the Carrabinos’ costs of £61,509.86 on the basis that the council had behaved unreasonably in refusing to accept alternative solutions to the noise dispute.

Ms Carrabino was concerned as to why RBKC had pursued the matter with such vigour.

In her written submission to the tribunal, she said: “At the highest levels of RBKC, elected members and senior executives responded to the Appellant and her husband’s requests for assistance against the abusive behaviour of lower level officers, with a ‘doubling down’ and a hardening of the council’s position.

She told the tribunal Mr Baptista had “extraordinary authority” over council officers against whom she alleges dishonesty and corruption.

“We should make clear to anyone reading this decision that no one has been given any opportunity to respond to Mrs Carrabino’s allegations, and it is neither necessary nor appropriate for us to decide whether they are well founded”, the tribunal said.

It said the specific dispute before it now was an email from a council officer Keith Mehaffy to Cllr James Husband, in which he said colleague Georgian Seraphim would update him on the case.

The email was also copied to someone whose name was redacted by RBKC and said Ms Seraphim “can update you and [redacted] on the matter”.

Ms Carrabino asked the identity of the redacted name but RBKC refused on the basis this was third party data.

She complained to the commissioner, who upheld RBKC’s refusal to provide this.

Judge Neville’s judgement said: “On necessity, and whether the rights of the data subject are outweighed by the legitimate interest, Mrs Carrabino’s point is simple: the context of the email means that the unidentified individual must either be one of the Baptistas or an as-yet-unknown third party who RBKC wished to keep informed of its progress.

“If the former, then their identity as complainants is already well-known and widely reported. Identification would have no adverse effect whatsoever on their interests or rights. If the latter, then no open basis has been provided why their rights or interests should be protected against fulfilling the legitimate interest of exposing whether RBKC may have been influenced by a third party.”

Judge Neville said the redacted name was not necessarily that of the Baptistas or an unknown person whose involvement was inappropriate and in some circumstances the public interest in transparency may support debunking undue influence as well as exposing it.

The tribunal decided disclosure of the information was necessary to meet Ms Carrabino’s legitimate interest, and that this overrode the legitimate interests or fundamental rights and freedoms of the data subject.

It said the prohibition at regulation 12(3) did not apply, and the presumption of disclosure at regulation 12(2) meant the information should be provided.
Judge Neville added: “Our reasons for those conclusions cannot be stated without revealing the withheld information.

“We have therefore set them out in a confidential schedule which will initially be provided only to the commissioner and to RBKC.

“If there is no in-time application for permission to appeal this decision to the Upper Tribunal then the confidentiality of that schedule will lapse and it will form part of our open reasons.”

Mark Smulian