[2023] UKUT 221 (AAC)

Under s1, the general right of access to information held by public authorities attaches to information of the description specified in the relevant request. In this case, it is reasonably clear that Ms Powell’s 3 May 2019 request was for the results of a “gender pay gap” analysis akin to that in EHRC’s Our gender gap report (snapshot date 31 March 2019). Those “results” comprised not a single piece of information, but several, including

Both Ms Powell’s rights (under s1), and the various exemptions (including that in s40), must be applied to each of the different pieces of information requested. Information within an exemption is exempt; information falling outside an exemption is not. If, hypothetically, Ms Powell’s request had been for 10 pieces of information, of which 9 were exempt information, that would not prejudice her s1 rights in relation to the single piece of non-exempt information.

[17] adequately explains why the FTT concluded that median pay information comprised information relating to an identifiable individual, and so was “personal data” (because it would be the salary of an actual employee in a small office); it does not, however, adequately explain why the other information requested (such as the mean pay, and the percentages produced by the “gender pay gap” analysis) comprise information relating to an identifiable individual; it does, however, refer to the IC information notice at paragraphs 31-35 as setting out the process for identifying the median and mean pay which, it says, “would allow for the identification of personal data”.

Those paragraphs of the IC decision notice (again) adequately explain why median pay information comprises information relating to an identifiable individual – see paragraphs 33 and 34 in particular. Paragraph 31 asserts that the “statistics” produced in the “gender pay gap” analysis could be “unravelled” to reveal the raw data (i.e. individuals’ pay). But it does not explain how. Paragraph 32 asserts that these “statistics”, together with pay band information, in the hands of someone aware of the gender split in the office, would lead to the working out of at least some individual salaries; but, again, it is not explained how this would be done.

IC’s counsel sought to fill these gaps in written and oral submissions: as set out in more detail at paragraph 29 above, IC’s counsel submitted that the “quartile” pay information (produced by the “gender pay gap” analysis), together with the pay band information, could lead to identifying someone’s salary; and, in a more complicated way, that the mean pay information could lead to identifying the pay of the other two women in the office, if Ms Powell knew the pay of at least one of the other women; and that this information could then be used to find the median pay for men.

These submissions do not, however, assist as regards the inadequacies of the reasons in the FTT decision identified above, because:

In the words of the dicta on inadequacy of reasons cited above, the flaw here is not discovered by narrow textual analysis; it is that the FTT decision does not do enough to show, as regards information other than median pay, that it applied the correct legal test (did that information relate to an identifiable individual?) and that the FTT has not, even in broad terms, explained its decision (that such information did relate to an identifiable individual). Nor can this gap in the reasons given be attributed to the FTT’s expertise: though s40 will have been familiar to the FTT, manipulating “gender pay gap” statistics, so as to identify individuals, is not an expertise of the FTT; on the contrary, [17] indicates, in its incorporation of paragraphs 31-35 of the IC decision notice by reference, that the FTT was relying on one of the parties (IC) for its understanding of how exactly this could be done.

I thus find ground a. to be made out; and that, because it is a material error, as regards the information requested apart from median pay, the FTT decision falls to be set aside.

I consider below, after considering the other two grounds of appeal, whether to re-make the decision or remit the case to the FTT.

IC’s submissions on ground b. were, in essence, that each piece of information in the requested information was information that related to an identifiable person – and so there was no way of limiting or re-framing the request so as to avoid disclosure of personal data.

Since I have found that ground a. to be made out, and consequently that the FTT decision falls to be set aside for material error of law, it seems to me that ground b. will be subsumed in the new decision. In other words, the new decision will decide whether any piece of the requested information was not personal data; and so, not exempt under s40(2); and this may affect consideration of s16.

I am satisfied that, reading [21] and [23] together and in context, the “legitimate interest” identified by the FTT was the legitimate interest in the gender pay gap position for EHRC as a whole (numbering about 160, per [17]), rather than for the Birmingham office (comprising just eight people) alone. The FTT decision says this expressly at [23]. I am satisfied that where the FTT decision at [21], in the last sentence, says that FTT accepted that Ms Powell has a legitimate interest in requesting “the information”, it was not expressing a different view (particularly as, in context, that sentence follows the FTT decision citing the IC decision notice to the effect that the legitimate interest related to “the body responsible for policing” equality law i.e. EHRC as a whole).

Ground c. is accordingly not made out.

IC’s counsel invited me to re-make the FTT decision, rather than remit the case to the FTT for reconsideration, on the basis of his detailed arguments that all the requested information (not just the information about median pay) related to identifiable individuals, was “personal data”, and fell within the rest of the FTT decision’s reasoning (as to which, I have not found there to be any error of law).

As I observe at paragraph 36 a. above, IC’s counsel’s arguments rest on factual assertions on which the FTT decision made no findings. More generally, and as was said in Common Services Agency, the question of whether information relates to an identifiable individual is a finding of fact to be made by the fact-finding body. An appropriate panel of the FTT is best placed to make the relevant necessary factual findings in this case. I have therefore decided that the case should be remitted to the FTT for reconsideration, with the directions as set out above.