EA-2023-0405 - [2024] UKFTT 00700 (GRC)

The Commissioner stated that he does not consider that, in practice, there is any real difference between the concept of a ‘balancing test’ and the question of whether the rights and freedoms of Mr Sunak or other data subjects override the legitimate interests in disclosure. In any case, the Commissioner considered that the result is the same.

In relation to the personal data of junior officials, the Commissioner argued that he was correct to place reliance on the reasonable expectations of those data subjects that the information would not be disclosed.

In relation to the personal data of Mr. Sunak, the Commissioner submitted that the fact that and purposes for which Mr. Sunak originally held a green card, alongside any decisions concerning that card are by their nature personal. That does not prevent correspondence relating to the trip itself being official in nature.

The Commissioner submitted that the alternative ground of public interest relied on in the decision notice is not incompatible with earlier references and only benefits the appellant’s case.

The Commissioner submitted that he did not place excessive weight on the reasonable expectations of the data subjects and primarily relied on this ground in relation to the personal data of junior officials.

In so far as the Commissioner’s conclusion that legitimate interests in disclosure were met by Lord Geidt’s report, the Commissioner invited the Tribunal to consider the withheld information and the contents of that report. The Commissioner agreed with the Treasury’s submissions (summarised at DN [50]) that disclosure would not meaningfully increase public understanding and that (per DN [52-53]) Mr Sunak’s interests in not having the data disclosed, which engage his rights and fundamental freedoms under the UK’s data protection legislation, override the public interest in disclosure.

In relation to section 27, the Commissioner noted that he is constrained in what he can say about the withheld information and invited the tribunal to examine the information and form its own conclusions. The Commissioner noted that the material raises a number of issues that concern the UK’s relationship with US officials, and that disclosure of that information would, in the Commissioner’s view, be likely to prejudice relations with the US, and in particular the smooth functioning of communications when coordinating or arranging ministerial trips to the US. The Commissioner considered that, in the circumstances of this case, he reached the correct conclusion on the balance of public interests.