[2023] UKUT 130 (AAC)

Upper Tribunal Judge Macmillan (as she then was) gave Mr Pereira permission to appeal against the First-tier Tribunal’s decision on 22 August 2022. She did so for the following reasons.

“12 Mr Pereira proposes two grounds of appeal. Both relate to the FTT’s conclusions in relation to [the requests asking to be informed of the steps the Insolvency Service took the investigate the DRO application of the third party] and both, in essence, concern the approach taken to balancing Mr Pereira’s legitimate interests against the 3rd party’s rights and interests. The first proposed ground is that the FTT should have afforded less weight to the 3rd party’s rights and interests because the 3rd party signed a fraudulent declaration in order to obtain the DRO. Mr Pereira asserts in addition that a great deal of information relating to the 3rd party’s DRO application is already in the public domain and, by inference, that ‘the cat is already out of the bag’.

13.

The second proposed ground is that there is a strong public interest in publishing the information, because the steps IS took to investigate the 3rd party’s DRO application were clearly inadequate. Mr Pereira submits that he was initially informed by IS that it had carried out an “extensive investigation” of the 3rd party’s application. However, Mr Pereira was able to identify evidence available online of the 3rd party’s financial assets which led to the DRO being withdrawn.

14.

The FTT’s decision provides a sufficient outline of the process it has followed when reaching its decision in relation to s.40(2). The FTT reminded itself of relevant guidance provided by the Upper Tribunal in Goldsmith International Business School v IC and the Home Office [2014] UKUT 0563 (AAC), and of the eight propositions identified in this decision from previous authorities. The FTT noted that the first proposition, derived from the Supreme Court’s decision in South Lanarkshire Council v Scottish Information Commissioner [2013] UKSC 55, is that the test for lawfulness of processing as set out in article 6(1)(f) may be distilled into the following pertinent questions:

(i)

Is the data controller or the third party or parties to whom the data are disclosed pursuing a legitimate interest or interests?

(ii)

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

(iii)

Is the processing unwarranted in this case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject?”

15.

The FTT approached these questions as follows [Judge Macmillan then set out paragraphs 41-44 of the First-tier Tribunal’s decision].

16.

It is arguable that the FTT may have made an error in its approach to question (i), namely by attaching weight to Mr Pereira’s legitimate interest in seeking disclosure of the personal data rather than treating this question as a binary issue. (See, by way of contrast, the approach taken by the Upper Tribunal to the issue in Farrand v Information Commissioner [2014] UKUT 310 (AAC) at paragraphs 23 – 25.) Further, and potentially in the alternative, the FTT may arguably have made an error by considering issues relevant to question (ii) – whether disclosure was reasonably necessary for the purposes of Mr Pereira’s interests given that he had already accessed various remedies – when determining the answer to question (i).

17.

Although it does not follow that either error (if made) was necessarily material to the outcome of Mr Pereira’s appeal, on the face of it the proposed ground of appeal may have some force, albeit only in relation to the overall approach taken by the FTT to the balance of interests.” I therefore grant permission to appeal.

18.

The Information Commissioner is now invited to address the appeal. The Information Commissioner’s views are also sought on whether, in the context of an article 6(1)(f) balancing exercise, any distinction should be drawn between the existence of a positive expectation by the data subject that personal data will not be disclosed, and a more neutral position whereby the data subject had no expectation that it would be disclosed. (See paragraphs 33 & 34 of Corporate Officer of the House of Commons v Information Commissioner and Ors, [2008] EWHC 1084 (Admin).) Both approaches are taken interchangeably in the Information Commissioner’s Decision Notice.”