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United Kingdom Information Tribunal including the National Security Appeals Panel


You are here: BAILII >> Databases >> United Kingdom Information Tribunal including the National Security Appeals Panel >> House of Commons v Information Commissioner and Norman Baker MP [2007] UKIT EA_0006_0015 (16 January 2007)
URL: http://www.bailii.org/uk/cases/UKIT/2007/EA_0006_0015.html
Cite as: [2007] UKIT EA_0006_0015, [2007] UKIT EA_6_15

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Appeal Number: EA/0006/0015 and 0016
Appeal Number: EA/2006/0015 and 0016
FS50072319
FS50071194
Freedom of Information Act 2000 (FOIA)
Heard at Procession House, London
Date 7th December 2006
Decision Promulgated
16th January 2007
BEFORE
INFORMATION TRIBUNAL CHAIRMAN
John Angel
And
LAY MEMBERS
Jacqueline Clarke and Roger Creedon
Between
THE CORPORATE OFFICER OF THE HOUSE OF COMMONS
Appellant
And
INFORMATION COMMISSIONER
Respondent
And
NORMAN BAKER MP
Additional Party
Representation:
For the Appellant:               Ms Eleanor Grey
For the Respondent:            Mr. Tim Pitt-Payne
For the Additional Party: In person
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Appeal Number: EA/0006/0015 and 0016
The Tribunal upholds both Decision Notices dated 22nd February 2006 (the
Decision Notices) and dismisses both appeals. This means that the Appellant
must now comply with the Decision Notices within 30 days of the promulgation
date of this decision.
Reasons for Decision
The requests for information
1.   There are two consolidated appeals before the Tribunal. Both are brought by
the Corporate Officer of the House of Commons (the House), and both arise
out of decisions by the Information Commissioner (the Commissioner)
requiring the disclosure of information relating to MPs’ travel expenses. The
original requests for information under FOIA were made by Norman Baker
MP (Mr Baker) and by Jonathon Carr-Brown on behalf of The Sunday Times
(Mr Carr-Brown).
2.   Mr. Baker’s request gave rise to the appeal in EA/2006/0015.
3.   On 20th January 2005 Mr. Baker made a written request (addressed to a Mr.
Castle of the Department of Finance and Administration, House of Commons)
for a breakdown of the already published aggregate figure for travel claims by
MPs, for the most recent year for which figures were available. He asked for
the information “in a format which would show for each MP the amount
claimed by mode of travel, and therefore giving specific figures for rail, road,
air and bicycle.”
4.    On 15th February 2005 the request was refused on the ground that certain
information as to MPs’ travel expenses was already disclosed under the
House’s publication scheme (Publication Scheme), and disclosure of the
additional information sought by Mr. Baker would breach the data protection
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Appeal Number: EA/0006/0015 and 0016
principles and that the information sought was exempt from disclosure, under
section 40 FOIA.
5.   Mr. Baker sought an internal review on 25th February 2005, but the original
decision was confirmed on 24th March 2005 Mr. Baker complained to the
Commissioner on 6th April 2005. Following correspondence between the
Commissioner and the House, the Commissioner issued a preliminary
decision notice on 24th January 2006 followed by a final decision notice on
22nd February 2006 (the Decision Notice). He upheld Mr. Baker’s complaint
and ordered disclosure of the information sought. The Commissioner
considered that the exemption under section 40 FOIA did not apply, on the
basis that the disputed information could be disclosed without contravening
any of the data protection principles.
6.   The House appealed to this Tribunal by notice dated 17th March 2006.
7.   The Sunday Times’ request gave rise to the appeal in EA/2006/0016.
8.   On 4th January 2005 Mr Carr-Brown made a request for information in similar
terms to that made by Mr. Baker (except that he sought figures for the
previous three years, not just for the most recent year and did not request
expenses relating to bicycles). The request was refused on 31st January 2005.
A review was requested on 10th February 2005 but the refusal was maintained
on review, by letter dated 24th March 2005. There was then a complaint to
the Commissioner on 8th April 2005 and eventually a preliminary decision
notice was issued on 24th January 2006. The decision notice was issued on
22nd February 2006 and the Commissioner upheld the complaint and required
disclosure of the information sought, for similar reasons to those in Mr.
Baker’s case.
9.   The House appealed to this Tribunal on 17th March 2006.
10. As will become apparent in this decision the issues raised in both appeals are
similar.
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Appeal Number: EA/0006/0015 and 0016
Factual Background.
11. Andrew John Walker (Mr. Walker), the House of Commons’ Director of
Finance and Administration, in very largely uncontested evidence before the
Tribunal, explained the background to and details of MPs’ allowances,
including travel allowances. There are various categories of travel and
transport for which allowances are claimable, including rail, air, car, taxi,
bicycle and motorcycle.
12. The House of Commons Commission was tasked with preparing for the
introduction of FOIA and the extent to which it was appropriate to make
details of allowances claimed by individual Members available on the
Parliamentary website as part of the Publication Scheme under FOIA. In a
letter sent to Members on 16th December 2002 the view taken was that “the
House should publish the total sum for each allowance which each Member
has used for each financial year. This approach meets our Freedom of
Information obligation and provides transparency and accountability, whilst
respecting the reasonable personal privacy of Members and their staff.”
13. On 17th June 2003, the Speaker sent a second letter to all Members confirming
arrangements for the publication of information in the autumn of 2004 giving
Members clear notice of the nature and extent of the disclosure which is now
currently made under the Publication Scheme.
14. Details of the sums paid to each MP in respect of each of the allowances
claimed for the three years up to 2003/2004 were published, for the first time,
on 21st October 2004. Since then, the information has formed part of the
Publication Scheme, and information relating to two subsequent years has
been published in October 2005 and October 2006.
15. The information requested in both cases is largely readily available. In fact
each MP is provided with his or her own breakdown of travel expenses on an
annual basis for, among other things, verification purposes. The breakdown is
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Appeal Number: EA/0006/0015 and 0016
under the following headings: car/taxi, European, bicycle, air, season, rail,
extended and other. However there are three elements of travel expenses
relating to the requests which require further explanation.
16. European Travel is an item of travel allowance which is recorded but which is
not broken down into the categories required under the requests. We
understand it also includes some subsistence costs and is collected in
aggregated form and would be very difficult to provide in the form set out in
the request. Also we are informed that the underlying paperwork for years
2001/02 and 2002/03 has been destroyed and is no longer held by the House.
17. Extended Travel is another item of travel allowance which is recorded but
again not broken down further. Extended travel largely relates to travel
undertaken by MPs in the UK which is other than travel undertaken within his
or her constituency or standard travel which covers journeys between three
points: the constituency, Westminster and the MP’s main home. This item
contains elements of the items requested by Mr Baker and Mr Carr-Brown
e.g. rail and air, which we understand is available.
18. Details of the allowances that MPs can claim, including travel, are found in
what is known as “The Green Book” on Parliamentary Salaries, Allowances
and Pensions. The Green Book makes it clear that MPs must satisfy
themselves that “any expenditure claimed from the allowances has been
wholly, exclusively and necessarily incurred for the purposes of performing
your Parliamentary duty.”
19. Family travel is not included in any of the travel allowances. However Mr
Walker explained that MPs’ public and private lives are sometimes closely
entwined and that the mode of travel chosen by an MP may be influenced by a
family need, say to travel together by car where it would be the most suitable
means of travel although not necessarily the most suitable if the MP had been
travelling alone.
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Appeal Number: EA/0006/0015 and 0016
20. Mr Walker stated that the House had received approximately 167 requests for
information about Members’ allowances, since FOIA came into effect. These
have covered most aspects of the travel allowance system. Each of these
requests has been considered individually on a case by case basis by himself
or one of his officers. The usual process is to consult with the Members
Estimate Committee (MEC), which replaced the House of Commons
Commission, on a request before replying. He would then consider the request
in the light of the views of the MEC and any legal advice from the House’s
legal advisors.
21. The MEC is a representative body of Members, as described in Part IV of the
Code of Practice published under section 45 FOIA, which is able to express
views on behalf of MPs on issues arising under the Act. The MEC is chaired
by the Speaker. It is the MEC which finally approved the extent of the
disclosures of allowances generally under the Publication Scheme.
22. Mr Walker is not involved personally in internal reviews and could not recall
whether the MEC was involved in any way at the review stage.
23. According to Mr Walker all of the requests for a more detailed breakdown of
travel expenses so far considered by him and his team have been refused on
similar grounds to the current appeals. However he made it clear that there
was no blanket policy in relation to such requests and that every request was
considered on an individual basis.
24. Mr Walker accepted that it was the duty of every MP to use public money
carefully. Part of the objective of the annual verification exercise was to draw
MPs’ attention to the details of travel expenditure so they could understand
how they were using allowances and if appropriate review their modes of
travel in the light of this duty. Also since 2005 his department had informed
those Members whose expenditure was in the top range both of overall
expenditure and for individual items of travel and other allowable expenses
that they were in this category, again with the purpose of bringing the duty to
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Appeal Number: EA/0006/0015 and 0016
Members’ attention. The travel agency used by MPs also draws to MPs’
attention cost effective means of travel.
25. Mr Walker said there had been a reduction in overall expenditure on MPs’
travel since the publication of the annual aggregate travel figure.
26. Mr Walker was aware that the Scottish Parliament discloses more information
than Westminster and that it discloses the sort of information requested by Mr
Baker and Mr Carr-Brown under their publication scheme. He was also aware
that some individual MPs, like Mr Baker, disclose the detailed breakdown of
their own travel expenses on their own web site but that as far as he was
aware this practice was not widespread and certainly not the practice of
anything like a majority of MPs.
Relevant statutory provisions
27. Section 1 FOIA creates a general right of access on request to information in
recorded form held by public authorities. Public authorities are under a duty to
confirm or deny whether they hold the information sought (section 1(1)(a)
FOIA), and to disclose the information if it is held (section 1(1)(b) FOIA).
Part II of FOIA confers a number of exemptions from both duties, including
the section 40 exemption claimed by the House in the present appeals. In
these cases, exemption is claimed only in respect of the duty to disclose, under
section 1(1)(b). So far as is relevant to these appeals section 40 reads as
follows:
40. - (1) Any information to which a request for information relates is
exempt information if it constitutes personal data of which the
applicant is the data subject.
(2) Any information to which a request for information relates is
also exempt information if-
(a) it constitutes personal data which do not fall within subsection
(1), and
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Appeal Number: EA/0006/0015 and 0016
(b) either the first or the second condition below is satisfied.
(3) The first condition is-
(a) in a case where the information falls within any of
paragraphs (a) to (e) of the definition of "data" in
section 1(1) of the Data Protection Act 1998, that the
disclosure of the information to a member of the public
otherwise than under this Act would contravene:
(i) any of the data protection principles …
(b) in any other case, that the disclosure of the information
to a member of the public otherwise than under this Act
would contravene any of the data protection principles
if the exemptions in section 33A(1) of the Data
Protection Act 1998 (which relate to manual data held
by public authorities) were disregarded.
28. Mr Pitt-Payne on behalf of the Commissioner provides a useful summary of
these provisions as follows. If A makes a request under FOIA for personal
data about B, and the disclosure of that personal data would breach any of the
data protection principles, then the information is exempt from disclosure
under the Act: this follows from section 40(2) read in conjunction with
section 40(3)(a)(i), or (when applicable) section 40(3)(b) which does not a
apply in these appeals. This is an absolute exemption - section 2(3)(f)(ii)
FOIA. Hence the Tribunal is not required to consider whether the public
interest in maintaining the exemption outweighs the public interest in
disclosure under section 2(2). However he says the application of the data
protection principles does involve striking a balance between competing
interests, similar to (though not identical with) the balancing exercise that
must be carried out in applying the public interest test where a qualified
exemption is being considered. We consider this application of the principles
later in this decision.
29. The mention of the data protection principles in section 40(3)(a)(i) requires
reference to section 4 of the Data Protection Act 1998 (DPA) as follows:
(1) References in this Act to the data protection principles are to the
principles set out in Part I of Schedule 1.
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Appeal Number: EA/0006/0015 and 0016
(2)  Those principles are to be interpreted in accordance with Part II of
Schedule 1.
(3)  Schedule 2 (which applies to all personal data)… set out conditions
applying for the purposes of the first principle…
(4)  Subject to section 27(1), it shall be the duty of a data controller to
comply with the data protection principles in relation to all personal
data with respect to which he is the data controller.
30. The data protection principles are set out in Part 1 of Schedule 1 DPA. There
are eight principles in all, but only the first and second are relevant to this
appeal. So far as material, they read as follows.
1.          Personal data shall be processed fairly and lawfully and, in
particular, shall not be processed unless-
(a) at least one of the conditions in Schedule 2 is met …
2.          Personal data shall be obtained only for one or more specified
and lawful purposes, and shall not be further processed in any
manner incompatible with that purpose or those purposes.
31. Part II of Schedule 1 to the Act contains further material as to the
interpretation of the data protection principles. Paragraph 2 of Part II relates
to the circumstances in which data are treated as being processed fairly for the
purposes of the first data protection principle. So far as relevant to this
appeal, it reads:
(1) Subject to paragraph 3, for the purposes of the first principle
personal data are not to be treated as processed fairly unless-
(a) in the case of data obtained from the data subject, the
data controller ensures so far as practicable that the
data subject has, is provided with, or has made readily
available to him, the information specified in sub-
paragraph (3).
(3) The information referred to in sub-paragraph (1) is as follows,
namely-
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Appeal Number: EA/0006/0015 and 0016
(a)       the identity of the data controller,
(b)       if he has nominated a representative for the purposes of
this Act, the identity of that representative,
(c)        the purpose or purposes for which the data are intended
to be processed, and
(d)       any further information which is necessary, having
regard to the specific circumstances in which the data
are or are to be processed, to enable processing in
respect of the data subject to be fair.
32. Additionally in order to satisfy the first data protection principle, it is
necessary for processing to satisfy one of the conditions in Schedule 2 to the
DPA. The condition that is potentially relevant in these appeals is in
paragraph 6(1) of Schedule 2:
The processing is necessary for the purposes of legitimate interests
pursued by the data controller or by the third party or parties to whom
the data are disclosed, except where the processing is unwarranted in
any particular case by reason of prejudice to the rights and freedoms
or legitimate interests of the data subject.
The Tribunal’s powers
33. The Tribunal’s general powers in relation to appeals are set out in section 58
of the Act. They are in wide terms. Section 58 provides as follows.
(1) If on an appeal under section 57 the Tribunal considers-
(a) that the notice against which the appeal is brought is not in
accordance with the law, or
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Appeal Number: EA/0006/0015 and 0016
(b) to the extent that the notice involved an exercise of discretion
by the Commissioner, that he ought to have exercised his
discretion differently,
the Tribunal shall allow the appeal or substitute such other
notice as could have been served by the Commissioner; and in
any other case the Tribunal shall dismiss the appeal.
(2) On such an appeal, the Tribunal may review any finding of fact
on which the notice in question was based.
34. The question whether the exemption in section 40 applies is a question of law
or (alternatively) of mixed fact and law. The Tribunal may consider the
merits of the Commissioner’s decision that this exemption does not apply, and
may substitute its own view if it considers that the Commissioner’s decision
was erroneous. The Tribunal is not required to adopt the more limited
approach that would be followed by the Administrative Court in carrying out
a judicial review of a decision by a public authority.
Issues before the Tribunal
35. The evidence is very largely agreed and therefore the only matters at issue are
interpretations of the law.
36. The Tribunal finds that the detailed travel claims the subject of these appeals,
which we shall call “the disputed information”, is both data, and personal
data
, under section 1(1) DPA for the purposes of section 40 FOIA.
37. For the purposes of these appeals it does not matter whether the information is
held on computer or in manual (i.e. paper) records. Either way, it amounts to
data within DPA and thus within section 40 FOIA. If it is held on computer
then it comes within limb (a) of the definition of data in section 1 DPA. If it
is held on paper, it comes within limb (e) of that definition. Although there
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Appeal Number: EA/0006/0015 and 0016
are various exceptions to the data protection principles in relation to data
coming within limb (e) (see section 33A DPA), for the purposes of these
appeals these exceptions are to be disregarded - section 40(3) (b) FOIA.
38. The information sought is also personal data under section 1 DPA and hence
under section 40 FOIA if it is relates to living individuals (the MPs to whom it
relates) whose identity can be ascertained from those data. In Durant v
Financial Services Authority
[2003] EWCA Civ 1746 the Court of Appeal
held that whether data is personal data depends on whether it has an
individual as its focus, and whether it is biographically significant in relation
to that individual (Durant at paragraphs 26-31). In our view this test is
satisfied in relation to the disputed information.
39. The main issue before this Tribunal is whether disclosure of the disputed
information would breach any of the data protection principles. The House
contends that disclosure of the disputed information would breach those
principles because it would:
(1)  contravene the fairness requirement in the first data protection
principle;
(2)  constitute the processing of personal data in circumstances where no
Schedule 2 condition was satisfied, contrary to the first data protection
principle; and
(3)  contravene the second data protection principle, although it is accepted
by Ms Grey on behalf of the House that the appeal would be unlikely
to succeed on this issue alone.
40. However before considering these matters we need to consider a preliminary
issue in relation to the interplay between the FOIA and the DPA.
Application of the data protection principles to section 40 FOIA
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Appeal Number: EA/0006/0015 and 0016
41. Ms Grey on behalf of the House submits that FOIA requires the Tribunal to
consider the information requests made as if they were requests made under
the DPA. This is because the information sought is personal data within the
meaning of the DPA, and therefore section 40(2) and (3) FOIA apply. This
requires the case for disclosing information to be tested with reference to the
principles established by the DPA, rather than those set out under FOIA.
42. Mr Pitt-Payne agrees with this submission but with a qualification. He
contends that section 40(3)(a)(i) (and section 40(3)(b)) requires a
consideration of whether disclosure of the information to a member of the
public otherwise than under this Act would contravene the data protection
principles.
43. Mr Pitt-Payne submits that it does not follow that the test in section 40(3)(a)(i)
must be applied as if FOIA itself simply did not exist. He continues that this
would be a wholly artificial approach and one that would go beyond the
requirements of the statute. The existence of FOIA in itself modifies the
expectations that individuals can reasonably maintain in relation to the
disclosure of information by public authorities, especially where the
information relates to the performance of public duties or the expenditure of
public money. This is a factor that can properly be taken into account in
assessing the fairness of disclosure.
44. Ms Grey does not accept this qualification. She refers us to Guidance on
section 40 from the Department for Constitutional Affairs (DCA). She
contends that in determining whether disclosure to a member of the public
would be fair, no regard can be had to FOIA. In effect once the section 40(2)
exemption is engaged, only the DPA can be applied, and the threshold set
under the DPA is not changed by FOIA.
45. Mr Pitt-Payne responds that this Guidance does not take into account the
culture change of openness which FOIA introduces and this should be taken
into account when assessing fairness under the DPA.
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Appeal Number: EA/0006/0015 and 0016
46. One of the reasons for Ms Grey’s and Mr Pitt-Payne’s respective submissions
on this issue is to avoid what otherwise could be a loop in the internal logic of
FOIA. There is a tension between DPA and FOIA because the former is about
privacy whereas the latter is about openness. Unless it is clearly established
under which statute a section 40 matter is considered then the loop effect
could result in an absurd position or at the very least ambiguity as to which
statute prevails.
47. In order to help the Tribunal with the issue Ms Grey refers us to Hansard in
support of her above proposition so as to avoid an unacceptable loop in the
internal logic of FOIA. The Parliamentary Under-Secretary of State at the
Home of Office during a House of Commons Standing Committee debate on
1st February 2000 in relation to the words “otherwise than under this Act” in
section 40(3) FOIA and in italics at paragraph 43 above, said “it would be
nonsense for the Freedom of Information Bill to provide that information is
exempt if release of the information would contravene the data protection
principles and, at the same time, to allow the fact that disclosure is required
under the….Bill, unless the information is exempt, to influence consideration
of whether disclosure would contravene the data protection principles.”
48. Until Pepper v Hart [1993] AC 593, the courts denied themselves reference to
Hansard for the purposes of interpreting legislation. That case permitted
reference but only subject to strictly controlled conditions which are set out in
the speech of Lord Browne Wilkinson which is reported at page 634. He said:
“ My Lords, I have come to the conclusion that, as a matter of law,
there are sound reasons for making a limited modification to the
existing rule (subject to strict safeguards) unless there are
constitutional or practical reasons which outweigh them. In my
judgment, subject to the questions of the privileges of the House of
Commons, reference to Parliamentary material should be permitted as
an aid to the construction of legislation which is ambiguous or obscure
or the literal meaning of which leads to an absurdity. Even in such
cases references in court to Parliamentary material should only be
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Appeal Number: EA/0006/0015 and 0016
permitted where such material clearly discloses the mischief aimed at
or the legislative intention lying behind the ambiguous or obscure
words. In the case of statements made in Parliament, as at present
advised, I cannot foresee that any statement other than the statement of
the Minister or other promoter of the Bill is likely to meet these
criteria.”
49. The Tribunal finds that there is both ambiguity and absurdity in the
application of the words “otherwise than under this Act” as demonstrated by
the arguments of counsel set out above. As a result the Tribunal finds that it is
able to consider the passages from Hansard under the doctrine in Pepper in
order to help us interpret the way section 40(2) should be applied.
50. The Tribunal finds that once section 40(2) FOIA is engaged that Parliament
intended that the request be considered under the DPA, without further
consideration of FOIA. This means that information which is protected under
the DPA may not be disclosed under FOIA.
Fairness of processing
The House’s arguments
51. Ms Grey contends that when assessing the requirements of the fair processing
requirements under the DPA the first and paramount consideration must be
given to the interests of the data subject. She refers us to paragraph 3.1.7 of
the Information Commissioner’s “Legal Guidance” on the DPA, citing CCN
Systems Ltd v The Data Protection Registrar
(DA/90 25/49/8, paragraphs 48 –
51) and Infolink Ltd v The Data Protection Registrar (DA/90 25/49/6,
paragraphs 62 - 65). In CNN “paramount” does not mean that the interests of
the data subject are the only consideration, “but rather the most important
single consideration.”(paragraph 52) As the Tribunal put it in Infolink, “in
other words, we are to weigh the various considerations, and do so, but are
entitled to give more weight to the interests of the individual about whom the
credit reference enquiry is being made” (paragraph 65) or in these appeals, Ms
Grey argues, the interests of MPs, details of whose travel arrangements are
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Appeal Number: EA/0006/0015 and 0016
being sought. She contends the reason for this focus is the purpose of the
DPA and she again refers us to the decision in CNN which finds “It is quite
clear, from the Act as a whole and in particular from the data protection
principles set out in Schedule 1, that the purpose of the Act is to protect the
rights of the individual about whom data is obtained, stored and processed or
supplied, rather than those of the data user” (paragraph 51). In enacting
section 40 FOIA, Ms Grey argues, Parliament has quite deliberately required
that this approach must still be applied when dealing with requests under
FOIA for personal data held by public authorities.
52. Ms Grey then argues that this required focus is missing from the decisions
under challenge. She submits that this general error of approach on the part of
the Commissioner flaws his consideration of these appeals generally, and is
reflected in other errors she contents have been made in the Decision Notices.
Ms Grey asks the Tribunal to restore this focus, and to bear in mind the
“paramount interest” of MPs.
53. Moreover she contends, compliance with the first data protection principle,
and fair processing, generally require that data subjects are informed of the
purpose or purposes for which the data are intended to be processed. It is
generally necessary to ensure that data subjects are informed of the
disclosures that may be made of the data. Paragraph 2 of Part II of Schedule 1
of the DPA advises what information should be given by the data controller to
the data subject at the time when information is obtained from them. The
information should include “the purpose or purposes for which the data are
intended to be processed.”
54. Ms Grey observes that in paragraphs 3.1.7.2 – 3.1.7.3 of the Commissioner’s
“Legal Guidance” he advises that, when data is obtained directly from data
subjects, this information should be provided at the time when the data is
obtained (paragraph 3.1.7.7). Ms Grey argues that it is apparent from the
Legal Guidance that subsequent “widening” of the anticipated disclosure is
generally regarded as unfair ( paragraph 3.1.7.3 at the top of page 33 of the
“Legal Guidance”):
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“Where the data controller already holds information obtained
for a specific purpose, it can only be used for a different purpose
that would not have been envisaged by the data subject at the
time of the collection of the information if the data controller has
the consent of the data subject.”
55. Ms Grey notes from the Legal Guidance that the Second Principle is not met
simply by notification (paragraph 3.2 of the Legal Guidance pages 35 – 36).
56. Ms Grey continues that since the development of the Publication Scheme, the
purposes for which the information is gathered and “processed” have included
publication according to the terms of the Scheme - but no more. In these
appeals, she argues, the Commissioner has failed to give any or sufficient
weight to MPs’ legitimate expectations that the Scheme defined the proper
limits of the use of the data supplied. MPs were advised of the scope of the
Scheme in December 2002, and, since then, have been entitled to assume that
the purposes for which data relating to their expenses has been provided to the
House has been both to enable claims for parliamentary expenses to be
verified and met, as appropriate, and to inform the public of the allowances
awarded, to the extent set out in the Scheme. The Speaker’s letter of 16th
December 2002 did not advise Members that wider disclosure would or might
be afforded. In these circumstances, she argues, disclosure of information
beyond that which is already included in the House’s Publication Scheme
would be unfair.
57.  Ms Grey refers to the Commissioner’s Statement of Reasons in the Decision
Notices which note that no assurances were given that further disclosure
would not be afforded, if individual requests were made under FOIA.
However, Ms Grey argues it is plain that no such assurance could ever –
lawfully – have been given, whether by the House or by any other data
controller which is subject to FOIA, when setting out the uses which it
anticipated making of information. In those circumstances, it is inappropriate,
she contends, to rely on this fact as a reason for undermining the weight to be
attached to the Scheme. Ms Grey argues that it would undermine the weight
that any member of the public should be entitled to give to a statement from a
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data controller (who is also a public authority) upon the uses to be made of
data supplied, and fails to give weight to the prohibition on “retrospective
widening” of the purposes for which data are processed.
58. Ms Grey again notes that in the Commissioner’s Statement of Reasons in the
Decision Notices, it is suggested that publishing figures for different modes of
transport amounts to no more than “dividing total figures for annual transport
expenses into figures for four separate categories of transport”. Ms Grey
contends that the House maintains that the publication of new categories of
information represents significant additional disclosure of personal data. It
means that information about modes of travel, as well as overall expenditure
on travel, has been released into the public domain. The former are matters of
personal choice on the part of an MP (and, to an extent, his or her family as
explained by Mr Walker) and their publication will reveal significant
information about aspects of their way of life.
59. Furthermore, Ms Grey submits, it is inappropriate to argue that, if information
requested differs only a little from information already released, its disclosure
is fair. If this approach is consistently applied, no boundaries can be set or
defended. There would be an incremental erosion of the Publication Scheme,
justified by the argument that each fresh disclosure was minor in nature -
albeit that the overall effect would soon be substantial. The argument that
there has been only a minor modification to the Scheme ignores the fact that
the Scheme may already represent a voluntary disclosure of information that
goes beyond the House’s legal obligations, rather than solely making available
information which the House was legally obliged to publish. The Scheme
should not, therefore, she argues, be taken as the basic “legal minimum”
required to comply with FOIA, and upon which additional requirements to
disclose may readily be super-imposed.
60. As a central part of his reasoning Ms Grey notes that the Commissioner
distinguishes between information relating to an MP in his official capacity,
and in his private capacity. However, Ms Grey argues this is not a distinction
found in the DPA, which distinguishes only between information which is
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Appeal Number: EA/0006/0015 and 0016
outside the scope of the Act because it is not “personal data” and “sensitive
personal data”. She submits that the effect of the distinction drawn is to erode
the protection afforded to personal data, but is not one justified by the terms of
the DPA, which covers information relating to an individual in his “personal
or family life, business or professional capacity” (Durant at paragraph 28).
Further, the argument that the disclosure of this additional information would
not impinge on the personal privacy to which individual MPs are entitled in
their private lives is erroneous, because MPs need to undertake travel which at
times must take into account their families.
The Commissioner’s arguments
61. Mr Pitt-Payne refers us to the Commissioner’s published guidance on the
interpretation of section 40 (Freedom of Information Act Awareness Guidance
No 1).
62. The Guidance deals with the issue of fairness under the first data protection
principle (page 4). It gives the following examples of questions that may need
to be considered in assessing fairness.
    Would the disclosure cause unnecessary or unjustified
distress or damage to the person to whom the information
relates?
    Would that person expect that his or her information might be
disclosed to others?
    Had that person been led to believe that his or her information
would be kept secret?
    Has that person expressly refused consent to the disclosure of
the information?
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Appeal Number: EA/0006/0015 and 0016
63. In an important passage, he says, the guidance suggests that in assessing
fairness it is likely to be helpful to ask whether the information relates to the
private or public life of the person to whom it relates. Information which is
about the home or family life of an individual, or his or her personal finances,
or which consists of personal references, is likely to deserve protection. By
contrast, information which is about someone acting in an official or work
capacity should normally be provided on request unless there is some risk to
the individual concerned.
64. Mr Pitt-Payne points out that in order to meet the fairness requirement in the
first data protection principle, it is necessary to comply with the specific
provisions of Schedule 1 Part II paragraph 2. The data subject must be
provided with or have made readily available to him certain information in
relation to the processing of his data, specified in paragraph 2(3).
65. However, he continues, the provisions in paragraph 2 are not intended to be an
exhaustive definition of what amounts to “fairness” for this purpose. Even
where there is compliance with paragraph 2 then the processing may still be
unfair on general grounds (Johnson v Medical Defence Union [2006] EWHC
321(Ch), paragraph 114 onwards).
66. He contends that disclosure of the disputed information in the present appeals
would not breach the specific requirements of paragraph 2. There would be
no change as to the identity of the data controller (compare paragraph 2(3)(a))
or his representative (compare paragraph 2(3)(b)). Nor would there be any
change to the purpose for which the data was intended to be processed
(paragraph 2(3)(c)). MPs have known since they were informed about the
Publication Scheme on 16th December 2002 that one of the purposes for
which data about their travel expenses was processed was the release of that
data to the public. The release of the disputed information would involve a
somewhat wider disclosure than is contemplated under the Publication
Scheme, but it does not follow he contends that the release of the disputed
information would involve the introduction of a fresh purpose for which MPs’
data was processed. Finally, there has been no suggestion that disclosure of
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Appeal Number: EA/0006/0015 and 0016
the disputed information would be unfair because it would necessitate the
disclosure of further information to MPs under paragraph 2(3)(d).
67. He argues that the principal thrust of the appeals in relation to fairness appears
to be that disclosure would be unfair in general terms rather than that it would
be unfair for breach of Schedule 1 Part II paragraph 2.
68. Mr Pitt-Payne submits that in assessing fairness in general terms, it is helpful
to consider the factors set out in the Commissioner’s Guidance (referred to at
paragraphs 63 above).
69. He argues that there is no evidence that MPs would or might be caused
unjustified distress or damage if the disputed information were to be
disclosed. No specific potential harmful consequences have been identified
by Mr. Walker or elsewhere. Nor is there any evidence of a specific refusal
by MPs generally or by any individual MPs to permit the disclosure of this
information. It is true, he says, that the Publication Scheme does not provide
for the disclosure of the disputed information; but no assurances were given
that information going beyond what was included in the Publication Scheme
would never be disclosed, and indeed no such assurances could lawfully have
been given. In any event disclosure of the disputed information, in his view,
is no more than a modest extension of what is provided for by the Publication
Scheme.
70. Mr Pitt-Payne submits that the Commissioner’s Guidance is correct to draw a
distinction between personal data related to an individual’s public and his
private life. This distinction has been reflected in other decisions by the
Commissioner relating to section 40 FOIA (see e.g. Corby Borough Council
25th August 2005 FS 50062124; Calderdale Council 24th November 2005, FS
50068973).
71. He argues that although this distinction is not specifically made in the DPA, it
is a proper consideration to take account when making the generalised
assessment of fairness that is required under the first data protection principle.
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Appeal Number: EA/0006/0015 and 0016
The disputed information relates to expenses which MPs are able to claim
only because they hold public office and fulfil certain public functions. They
cannot reasonably have the same expectation that such information will not be
made public as they would have in relation to information about their personal
lives.
72. Mr Pitt-Payne continues that the very existence of FOIA means that MPs must
have been aware of a risk that information other than that specified in the
Publication Scheme might be disclosed. However, he argues that even if the
existence of FOIA is to be wholly disregarded in assessing whether disclosure
would be fair, the answer is still the same: there is no unfairness in these
cases.
Tribunal’s finding on fairness
73. We have recited the arguments of the parties on this issue of fairness because
we believe it is the first time this Tribunal has been called upon to consider
the issue in detail since acquiring its new FOIA jurisdiction.
74. We consider there are three principal matters that we need to decide at this
stage in relation to fairness, namely;
(1)  Whether MPs were provided with the information specified under sub-
paragraph 3 of the second paragraph of Part II to Schedule 1 of DPA?
(2)  Whether the first and paramount consideration must be given to the
interests of data subject, namely MPs in these appeals? and
(3)  Whether it is correct to draw a distinction between personal data
related to an individual’s public and his private life?
75.  In relation to the first matter we accept Mr Pitt-Payne’s arguments on behalf
of the Commissioner in paragraph 67 above that the requirements of
paragraph 2(1) of Part II to Schedule 1 DPA have been met. We are
particularly able to make this finding as the wording of paragraph 2(1)(a) only
requires that the data controller “ensures so far as practicable” that data
subjects are provided with the information in sub-paragraph (3), so there is no
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Appeal Number: EA/0006/0015 and 0016
absolute requirement. We would refer to our findings in relation to the second
data protection principle below which further substantiates this finding.
76. We wish to comment on Ms Grey’s contention in paragraph 57 above. Ms
Grey appears to be submitting that if the draftsman of a publication scheme
misunderstands the law and fails to give proper warning that disclosure to a
third party might not contravene the data protection principles, that itself gives
rise to a ground for not disclosing on the grounds of fairness. This seems to us
to be wrong otherwise a situation could be faced whereby disclosure could be
appropriate under paragraph 6 of Schedule 2, considered below, but is
effectively blocked by the data controller (in this case arguably the servant of
the data subjects) arranging the data collection in such a way as to render
disclosure unfair processing.
77. In relation to the second and third matters we have considered the decisions of
differently constituted Tribunals in the CNN and Infolink cases. These cases
did not involve data controllers who were public authorities or data subjects
who were public officials. We accept the approach of the Commissioner’s
Guidance which recognises that in determining fair processing regard can be
had as to whether the personal data relates to the private or public life of the
data subject to whom it relates. The purposes here are to enable allowances to
be paid and to publish details of allowances in accordance with the House’s
compliance obligations under FOIA. These allowances are claimed by and
paid to public officials in respect of the performance of their public duties.
This public function is why the data is being processed and this is why we
find that we can have regard to it.
78. We therefore find that the CNN and Infolink decisions, which in any case are
not binding on us, can be distinguished where public officials are concerned
where the purposes for which data are processed arise through the
performance of a public function. As a result we find that when assessing the
fair processing requirements under the DPA that the consideration given to the
interests of data subjects, who are public officials where data are processed for
a public function, is no longer first or paramount. Their interests are still
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Appeal Number: EA/0006/0015 and 0016
important, but where data subjects carry out public functions, hold elective
office or spend public funds they must have the expectation that their public
actions will be subject to greater scrutiny than would be the case in respect of
their private lives. This principle still applies even where a few aspects of
their private lives are intertwined with their public lives but where the vast
majority of processing of personal data relates to the data subject’s public life.
79. Therefore in respect of the second and third matters in paragraph 75 above in
relation to the general application of fairness under the first data protection
principle we find:
(2)  the interests of data subjects, namely MPs in these appeals, are not
necessarily the first and paramount consideration where the personal data
being processed relate to their public lives; and
(3) it is possible to draw a distinction between personal data related to an
individual’s public and private life, particularly in the case of MPs.
80. Having answered the questions in paragraph 75 we find that none of the
general factors that might have rendered the processing unfair have been
shown to be present in these appeals. We now turn to examine whether any of
the particular factors in Schedule 2 DPA apply, and by common agreement
between the parties it is accepted that only paragraph 6 is of relevance to these
cases.
Schedule 2, paragraph 6
The House’s arguments
81. Ms Grey argues that the application of this condition requires a balance to be
struck between the “legitimate interests” pursued by, in these appeals, the data
requestors, and “prejudice to the rights and freedoms of or legitimate interests
of the data subject.” The disclosure must be “necessary”; as set out at
paragraph 3.1.6 of the Legal Guidance, this “requirement is an important
safeguard for the rights of data subjects.”
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Appeal Number: EA/0006/0015 and 0016
82. Ms Grey recognises on behalf of the House that public scrutiny of the use of
public funds by elected office-holders is a “legitimate interest”. However, the
strength of that interest has to be assessed against the background of the
extensive information that has already been put in the public domain about
MPs’ expenses, including their travel expenses, and requires a judgment on
whether or not it is necessary to require further disclosure.
83. She argues that MPs have a legitimate interest in (a) preserving the
confidentiality of information which relates to an individual’s choice of mode
of travel, and (b) the maintenance of reasonable expectations as to the use to
which data supplied by them would be put by the House of Commons
Authorities. They are entitled to be able to regulate their affairs without
‘retrospective amendments’ being made to the scope of disclosure made; and
to make such changes would amount to prejudice.
84. In these circumstances, she submits that it is not “necessary” to supplement
the extensive information already placed in the public domain, with the
further information about modes of travel now sought. Any legitimate public
interest in this information does not outweigh the legitimate interests of the
data subjects sought to be preserved, and/or the prejudice caused by such
disclosure.
85. She invites the Tribunal when assessing whether the requirements of
paragraph 6 of Schedule 2 have been met, to bear in mind that the “paramount
consideration” is that of the data subject and refers us to paragraph 3.1.1 of
the Legal Guidance -
“The Commissioner takes a wide view of the legitimate interests
condition and recommends that two tests be applied to establish
whether this condition may be appropriate in any particular test.
The first is the establishment of the legitimacy of the interests
pursued by the data controller or the third party to whom the data
are to be disclosed and the second is whether the processing is
unwarranted in any particular case by reason of prejudice to the
rights and freedoms or legitimate interests of the data subject
whose interests override those of the data controller”
- or, she argues, those of the third party to whom the data are to be disclosed.
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Appeal Number: EA/0006/0015 and 0016
The Commissioner’s arguments
86. Mr Pitt-Payne argues that the application of Paragraph 6 of the DPA involves
a balance between competing interests broadly comparable to the balance that
applies under the public interest test for qualified exemptions. The balancing
exercise is not however precisely identical under Paragraph 6 and under the
public interest test: for instance under paragraph 6 what is for consideration is
the rights and freedoms and legitimate interest of individual MPs, rather than
the public interest in maintaining an exemption.
87. He further argues that paragraph 6 requires a consideration of the balance
between: (i) the legitimate interests of those to whom the data would be
disclosed which in this context is a member of the public (section 40 (3)(a));
and (ii) prejudice to the rights, freedoms and legitimate interests of the data
subjects.
88. As to the interests of those to whom the data would be disclosed, he contends
that there is clearly a legitimate interest in understanding the way in which
MPs’ travel expenses are used. The interest in ensuring that those who use
public money are properly accountable for the way in which it is spent is an
important one and can properly be taken into account under paragraph 6.
89. As to the interests of the data subjects (i.e. the MPs to whom the disputed
information relates), he argues that there is no prejudice to their rights or
freedoms in disclosing this information, although it is suggested by Ms Grey
that they have a legitimate interest in resisting its disclosure, any such interest
should be very limited.
The Tribunal’s findings
90. The Tribunal finds that the application of Paragraph 6 of the DPA involves a
balance between competing interests broadly comparable, but not identical, to
the balance that applies under the public interest test for qualified exemptions
under FOIA. Paragraph 6 requires a consideration of the balance between: (i)
the legitimate interests of those to whom the data would be disclosed which in
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Appeal Number: EA/0006/0015 and 0016
this context are members of the public (section 40 (3)(a)); and (ii) prejudice to
the rights, freedoms and legitimate interests of the data subjects which in this
case are MPs . However because the processing must be ‘necessary’ for the
legitimate interests of members of the public to apply we find that only where
(i) outweighs or is greater than (ii) should the personal data be disclosed.
91. The main legitimate interests of the requesters or members of the public raised
in these appeals can be summarised as follows:
    understanding the way in which MPs’ travel expenses are used;
    ensuring that MPs’ use of public monies is properly accountable for in the
way in which it is spent by providing public scrutiny of the use of public
funds by elected office holders - greater transparency helps ensure the
proper use of public funds and helps guard against their misuse;
    encouraging MPs to take better value for money choices in the mode of
transport used and hopefully producing savings to the public purse - the
public have a right to know whether value for money is being obtained in
MPs’ travel arrangements;
    being more aware of the environmental or ‘green’ choices made by MPs
as demonstrated by their mode of travel;
    being aware of MPs’ choices of mode of travel in the light of their
involvement in debating and legislating on transport and environmental
matters.
92. The main prejudices to the rights, freedoms and legitimate interests of the
MPs as data subjects raised in these appeals can be summarised as follows:
    publishing of detailed travel expenses could lead to questions in relation to
an MP’s private life;
    the complexity of their lives, including travel arrangements is influenced
by family/private considerations;
    such requests are a diversion from other parliamentary business;
    the House has already determined that the Publication Scheme meets the
House’s obligations under FOIA;
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Appeal Number: EA/0006/0015 and 0016
    MPs’ consent for disclosure has only been sought for aggregate figures for
travel expense and not for more detailed disclosure;
    the information sought is personal data relating to personal choice and
therefore should not be disclosed;
    further disclosure of a breakdown of expenses would give rise to
opportunities for further invasion of the privacy of MPs from the media;
    MPs are already subjected to close scrutiny, a consequence of which is
that their role has become increasingly pressurised due to increased
attention from the media which detracts from them effectively carrying
out their role;
    the existing rigorous scrutiny of expenses has already resulted in a
reduction in expenditure, and this is reflected in the year on year
comparative financial reports produced for the House;
    a breakdown of travel by mode of transport can be provided to monitor
use of environmental friendly transport and therefore, it is unnecessary to
provide the information for individual MPs.
93. Having considered all these interests we find that the legitimate interests of
members of the public outweigh the prejudice to the rights, freedoms and
legitimate interests of MPs. We consider our decision will only result in a
very limited invasion of an MP’s privacy considered in the context of their
public role and the spending of public money. In coming to this decision we
have noted that the Scottish Parliament has for some years disclosed the
detailed travel claims of MSPs supporting mileage, air travel, car hire and
taxis. Also we note that in the Scottish Information Commissioner’s Decision
033/2005 in Paul Hutcheon, The Sunday Herald and the Scottish
Parliamentary Corporate Body
(SPCB) the Scottish Commissioner went
further and ordered the release of the destination points of taxi journeys of an
MSP.
The second data protection principle
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Appeal Number: EA/0006/0015 and 0016
94. The Tribunal notes that there is no specific reference to the second data
protection principle in the grounds of appeal in either case.
95. Ms Grey however in her submissions before the Tribunal points out that the
widening of the purpose to require the disclosure of details of travel
expenditure could amount to a new purpose and therefore result in a breach of
this data protection principle. However Ms Grey does not rely on this
argument alone.
96. Mr Pitt-Payne argues that the second principle does not assist the House.
Disclosure of the disputed information would not involve the processing of
MPs’ personal data for a novel purpose, still less for a purpose incompatible
with those for which the data was obtained. Prior to the making of these
requests, one of the purposes for which MPs’ personal data was processed was
the making of disclosures to the public, and this is the very purpose for which
the information would be disclosed if the requests by Mr. Baker and the
Sunday Times were answered.
97. The Tribunal finds that the specified purpose of the House was to publish data
on allowances in order to comply with FOIA. The House’s Publication
Scheme on its web site sets out a breakdown of these allowances. We do not
find that publishing the details of mode of travel or other breakdown is
incompatible with this purpose and is certainly not a new purpose.
98. We note that most data controllers comply in part with this data protection
principle by notifying the Commissioner of the purposes for processing
personal data under broad heads, which the House has done under its
registration number Z8887540.
The Tribunal’s decision
99. In view of the above findings the Tribunal upholds the Commissioner’s
Decision Notices and dismisses the appeals. This means that the House must
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Appeal Number: EA/0006/0015 and 0016
now comply with the Decision Notices within 30 days of the promulgation
date of this decision. In order to comply with the Decision Notices the House
will need to provide details of Extended Travel – see paragraph 17 above.
Signed
John Angel
Chairman                                                                           16th January 2007
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