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Can the name of a local councillor who has defaulted on Council tax properly be withheld from disclosure under the exemption for personal data in s.40 FOIA? That was the issue for the Upper Tribunal (“UT”) in Haslam v (1) Information Commissioner (2) Bolton Council [2016] UKUT 0139 (AAC), 10 March 2016. Mr Haslam, a journalist on the Bolton News, had submitted a FOIA request to Bolton Council for disclosure of names of councillors who had received reminders for non-payment of Council tax since May 2011. The Council refused to name names, citing the exemption in s.40 FOIA. The Information Commissioner and First-Tier Tribunal (“FTT”) upheld the Council’s decision. The UT (Judge Markus QC) has now reversed the FTT’s decision, and held that the name of the individual councillor concerned should be released.

The UT held that releasing the name would not contravene the data protection principles, because processing was necessary for the purposes of legitimate interests pursued by Mr Haslam, and was not unwarranted because of prejudice to the councillor’s rights/legitimate interests. In substance, this involved carrying out an Article 8/Article 10 ECHR balancing exercise. It is apparent from the UT’s decision that the critical element in that balancing exercise was the councillor’s status as an elected official with public responsibilities, to which non-payment of council tax was directly and significantly relevant. In particular, a councillor is barred from voting on the Council’s budget if he has an outstanding council tax debt of over two months. So Council tax default, per the UT, “strikes at the heart of the performance of a councillor’s functions”. Voters would want to know whether the councillor was carrying out his duties. That in turn meant that (i) a councillor could not have any expectation that his name would be withheld, even if his identification intruded significantly into his private life; and (ii) on the other side of the balance, there was a compelling legitimate interest in the public knowing his name. Judge Markus QC said that there might be exceptional cases in which the personal circumstances of a councillor were “so compelling” that their name should be protected; but these were not such circumstances – even though disclosure might cause some distress to the councillor, and damage to his reputation. In short, elected officials are not in the same position as other members of the public when it comes to disclosure of their names. They can expect their names to be disclosed in circumstances where ordinary members of the public might expect the opposite.

 

Two other points of interest arise from the decision:

1. The UT said that the relevant “legitimate interests” of the third party to whom data is disclosed were the interests of the requester, not the public at large. The fact that FOIA, in general, is “motive-blind”, and disclosure under FOIA is to the world, did not mean that the “third party” in question had to be treated as if it were the public as a whole, rather than the requester. However, in the present case, that made no practical difference, because Mr Haslam was a journalist, and his own interests elided with those of the public.
2. The issue arose whether Mr Haslam should receive a gist of the closed material in the case. The closed material concerned the personal mitigating circumstances of the councillor in question. The UT applied the principle in Browning v Information Commissioner [2014] 1 WLR 3848 that information should not be withheld unless strictly necessary; but considered that nevertheless, it was not possible to provide a gist. Giving a gist would materially increase the risk of the councillor being identified, and that would defeat the purpose of the appeal.

Anya Proops QC of 11KBW acted pro bono for Mr Haslam; Robin Hopkins of 11KBW for the Information Commissioner, and Christopher Knight of 11KBW for the Council.