[2024] UKUT 105 (AAC)

We agree that this aspect of the case was a live issue before the FTT for the reasons that Mr Pitt-Payne identified.

However, it is apparent from the terms of the EN (which we have summarised in this respect at [18] above) that the Information Commissioner’s case that the LIAs should be re-assessed rested on the propositions that Experian’s processing was intrusive, non-transparent and harmful. As we have already explained the FTT rejected each of these propositions. There is no challenge to their conclusion in terms of the relatively innocuous nature of the processing and we have dismissed the grounds of appeal that challenge the FTT’s findings on intrusiveness and on transparency.

Accordingly, it follows that the FTT’s decision did contain a reasoned rejection of the Information Commissioner’s case. Whilst it would have been clearer, and thus desirable, for the FTT to have spelt out expressly that given these findings they did not uphold Requirement C6, we consider that it can clearly be inferred that this conclusion was part of their statement at [181] that they had found no other material contravention.

We do not consider that we are assisted by the discrete issues that arose in relation to the residual cohort. The conclusions reached in relation to the residual cohort and the terms of the SEN are not in issue on this appeal (and Experian indicated through Ms Proops that they are willing to agree to a requirement to re-visit the LIAs in so far as they concern this group of data subjects). For present purposes, we are satisfied that the FTT engaged with the question and their reasons make it tolerably clear why the Information Commissioner was unsuccessful in relation to this part of her case as regards the main cohort of data subjects.