Council loses appeal over FOI request for
names of those who submitted consultation
responses as part of their public-facing roles
April 15, 2024
Cambridgeshire County Council must release the names of individuals in a public-facing
role, including councillors and officials, who submitted consultation responses on behalf of
stakeholder groups, despite a promise in the consultation document that said the local
authority would not publish any personal details unless specifically indicated, the First Tier
Tribunal has ruled.
In Cambridgeshire County Council v The Information Commissioner & Anor [2024] UKFTT
269 (GRC), the tribunal dismissed an appeal by the council, concluding that any reasonable
elected official or public-facing individual submitting a response "on behalf of a stakeholder
group would assume that the data protection statement was only intended to apply to those
who were submitting responses as private individuals". [emphasis in judgment]
The dispute centred around a consultation held by the council in 2021 on a number of active
travel schemes around the county.
In a disclaimer attached to the consultation survey, the council said: "We will not publish any
personal details you do give us unless specifically indicated, but we may publish your
response and include it in public reports, with personal details removed."
According to the council, the consultation received responses from 27 people that were
declared to be on behalf of electoral constituents or public bodies.
In October 2022, Simon Eden-Green requested the names of these respondents and details of
their responses "in the public interest of transparency and accountability".
The council provided some information but not all of the information that was requested,
citing 40(2) of the Freedom of Information Act 2000, which concerns personal information.
Eventually, Eden-Green complained to the Information Commissioner's Office.
After conducting its own investigation, the Commissioner found that the information
constituted personal data but concluded that it should be disclosed as the public "have a right
to know how their elected representatives conduct their roles and what views they may
submit for a public consultation".
The decision notice added: "People in an elected position will also have an expectation of
greater scrutiny than a normal member of the public."
It said that the public authority's application of section 40(2) of FOIA to this part of the
request was, therefore, incorrect.
Cambridgeshire then appealed to the First-tier Tribunal, which heard the case on 11 March
2024, arguing that the Commissioner did not consider whether processing of the personal
information via disclosure under FOIA would be fair and transparent under the first data
protection principle.
It also argued that release of the personal information would not be fair and transparent.
The tribunal found that it needed to determine the following:
1, Would disclosure be lawful:
1.1 Is the data controller or a third party pursuing a legitimate interest or interests?
1.2 Is the processing involved necessary for the purposes of those interests?
1.3 Are the above interests overridden by the interests or fundamental rights and freedoms of
the data subject?
2. Would disclosure be fair and transparent?
The tribunal concluded that there was a legitimate interest in knowing how elected officials
or other publicly facing individuals had responded to such a consultation on behalf of those
they represent.
It also accepted that there was a legitimate interest in knowing which representative has
submitted those comments and views.
"In our view it is necessary for both those legitimate interests to disclose the names and
identifying roles of those individuals responding as stakeholders. We do not accept that the
legitimate aim could be satisfied by any less intrusive means," it said.
Considering the fundamental rights and freedoms of the data subjects, the tribunal concluded
that: "In our view, any reasonable elected official or public facing individual submitting a
response on behalf of a stakeholder group would assume that the data protection statement
was only intended to apply to those who were submitting responses as private individuals. It
is clearly, in the tribunal's view, not intended to apply to those submitting stakeholder
responses and would not be read as such by a reasonable person."
It said: "....even in the light of the data protection statement there would be no reasonable
expectation of privacy in these circumstances and that disclosure would have been within the
reasonable expectations of those individuals".
On the fairness and transparency argument, the tribunal said it did not accept that the fact that
some individuals had refused to provide consent "renders disclosure unfair or not transparent"
as they should have been aware that when carrying out public tasks in a representative role
their personal data might be published.
Ultimately, the tribunal concluded that the council was not entitled to withhold