[2024] UKUT 245 (AAC)

In accordance with the parties’ wishes, the Tribunal (Judge Findlay, sitting with members) heard the appeal on the papers. The Tribunal dismissed his appeal.

At [12]-[18] of the decision, the Tribunal set out the relevant provisions of FOIA, and also the relevant provisions of the Data Protection Act 2018 (“DPA”) to which the exemption in section 40(2) of FOIA for personal information refers. In summary, the particular questions that the Tribunal identified it had to address in relation to the information requested by the appellant were:

At [19]-[21] the Tribunal directed itself as to the principles to apply in deciding whether the information constitutes personal data.

At [22]-[29] the Tribunal directed itself as to the relevant principles to apply in deciding whether or not disclosure of the information would contravene the data protection principles.

The Tribunal then set out the parties’ respective submissions.

At [57]-[66] it expressed its conclusions as follows:-

57.

The Tribunal’s remit is governed by section 58 of the 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 that discretion should have been exercised differently. The Tribunal may consider evidence that was not before the Commissioner and may make different findings of fact from the Commissioner.

58.

In reaching its decision the Tribunal took into account all the evidence before it whether or not specifically referred to in this Decision. The Tribunal applied the legislation and case law as set out above.

59.

The Tribunal found that the requested information constitutes the personal data of the students, and did not accept the Appellant’s argument that students could not be identifiable. The Appellant argues that s.40(2) FOIA is not engaged on the basis that the information is not personal data.

60.

The Tribunal found that an individual is reasonably likely to be identifiable. This could be done by a person combining the requested information with other information. The Tribunal found that as a disclosure under the FOIA is a disclosure to the world at large not only would the Appellant be able to identify individuals but this would be possible by others.

61.

In reaching this decision the Tribunal has taken into account that the requested information is categorised according to year, subject and ethnicity against the performance in examinations and against the assessments recorded and that identification of individuals could be made by considering public information known about the students of the school community. The Tribunal considered it likely that some parents and some other students would have knowledge of the personal characteristics of students including their ethnicity, the subjects they were studying and their abilities in each subject.

62.

The Tribunal found that it was reasonably likely that individual students and their grades could be identified by studying the requested information and comparing it with known information about individual students’ strengths or weaknesses in particular subjects and their ethnic origin. Not all students could be identified but it is enough that some individuals could be identified. In addition, students would be able to identify themselves.

63.

The Tribunal found that there was public interest in the information requested as it would show how the School approached grading and, if it were the case as alleged, whether there was an anomaly correlating to ethnicity. However, the Tribunal was satisfied that the School’s statistical analysis demonstrates that public interest would not be advanced by disclosure of the information. In reaching this decision the Tribunal has taken note of the conclusion that the “Ethnicity groups are too small to establish statistical significance.” The Tribunal found that the School provided detailed analysis about whether there was a statistical anomaly relating to ethnicity, and other characteristics, and this was done without disclosing personal data. The Tribunal found that the disclosure of the information would simply be a repetition of that statistical analysis which is unnecessary.

64.

Having found that disclosure is unnecessary the Tribunal is not required to consider the overall balance test namely whether the interests relating to show racial discrimination and other misconduct by the School overrides the legitimate interests of fundamental rights and freedoms of the data subject. Had the Tribunal been required to consider this issue the Tribunal would have found that the public interests did not outweigh the rights of the data subjects.

65.

In view of the findings of the Tribunal above it is not necessary to deal with the points raised by the Appellant in paragraphs 34 to 42 above.

66.

The Tribunal recognises that each case must be determined on its merits. Having considered all the evidence the Tribunal found that the Commissioner carried out a comprehensive investigation into the complaint, the Decision Notice was in accordance with the law, and the Tribunal accepts and endorses the reasons provided for the findings in the Decision Notice for the reasons as stated above.