IN THE UPPER TRIBUNAL			Case No: GIA/2041/2014
ADMINISTRATIVE APPEALS CHAMBER

DECISION BY THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)

The DECISION of the Upper Tribunal is to dismiss the appeal. 

The decision of the First-tier Tribunal (General Regulatory Chamber) dated 7 February 2014 does not involve an error on a point of law. The appeal is therefore dismissed.

This decision is given under section 11 of the Tribunals, Courts and Enforcement Act 2007.

REASONS

Introduction

1.	The principal point of interest in this appeal lies in whether the First-tier Tribunal [“the FTT”] failed to examine carefully the reasoning behind the Information Commissioner’s Decision Notice as to whether data was or was not the personal data of the Appellant [Mr Smith] and thus erred in law by reaching a conclusion on the basis of inadequate and indeed inaccurate reasoning. In this case, the Information Commissioner [“the IC”] had decided that the requested information did not constitute the Appellant’s personal data and thus his Decision Notice focussed on the reliance by the public authority - Essex Police – on section 40(5)(b)(i) of the Freedom of Information Act 2000 [“FOIA”] as a basis for its refusal of information to the Appellant. During the course of this appeal the IC conceded that the requested information did in fact constitute the personal data of the Appellant in addition to that of a third party. If the information was the Appellant’s personal data all along, was the tribunal in error of law in reaching the decision it did?

2.	It is clear that the ownership of this data was an issue upon which the two Respondents were at odds in this appeal. Essex Police maintained that the data requested was entirely unconnected to the Appellant and thus reliance alone on section 40(5)(b)(i) of FOIA was entirely accurate. The requested data was the activations of Essex Police’s Automatic Number Plate Recognition [“ANPR”] system in relation to a particular vehicle during the entirety of 28 February 2008. 

3.	I conclude that, first, the data requested did constitute the Appellant’s personal data along with that of a third party. However, this had no material impact on the outcome of this appeal before the FTT since the tribunal correctly concluded that it would be unfair to process the same by way of confirmation or denial. The fact that the information would also be personal data of the Appellant would only have provided a further and more absolute basis – namely reliance on section 40(5)(a) of FOIA – to refuse the appeal. 

4.	I gave permission to appeal on other grounds but these are of less significance. I deal with these grounds toward the conclusion of these Reasons. None of them founds the basis for a successful appeal against the tribunal’s decision.

5.	The Appellant, Mr Terence Smith, represented himself. The IC was represented by Mr Rupert Paines of counsel and the Chief Constable of Essex Police (acting in the interests of that force) was represented by Mr Christopher Knight of counsel. I am grateful to all of them for their written arguments which I have found enormously helpful. With the agreement of the parties, it has not been necessary for me to hold an oral hearing of this appeal.

6.	I have read the First-Tier Tribunal and the Upper Tribunal bundle carefully before coming to my conclusions. 

Background

7.	What follows is a summary pertinent to this appeal. The requester and Appellant was Mr Terence Smith.  Mr Smith is a serving prisoner having been convicted of conspiracy to rob following trials in 2009 and 2010. He maintains his innocence of the charges on which he was convicted and states that the activities which led to his arrest – following a cash transit van – represented research for a book which he was writing. I should mention that Mr Smith was, prior to his conviction, a writer specialising in stories of true crime focussed on professional armed robbery.  He had published a number of books and had also made media appearances in connection with his writing.

8.	On 28 February 2008 Mr Smith claimed that he was conducting research for a book and that, as part of that research, he was the driver of a Vauxhall Vectra car number plated R529VLH and was following an old type Mercedes Loomis cash-in-transit van in Basildon, Essex.  The owner and registered keeper of the Vauxhall Vectra was Mr Smith’s passenger. Mr Smith claimed to have followed the Loomis van through Basildon and then along the A127 towards London. He said he eventually stopped following that vehicle, having turned off the A127 towards Brentwood. Mr Smith and his passenger were later arrested and charged with conspiracy to rob. It was Mr Smith’s case that Essex Police tampered with the evidence at his trial by substituting details of a newer van model for the old Loomis van he says he was following. When he sought disclosure of archive CCTV footage and ANPR data to support his version of events, he claimed that Essex Police suppressed the evidence and fabricated ANPR data via the police “Holmes” computer system. In short, he said he was deprived of a fair trial as part of a police “fit-up”.

9.	Mr Smith made a FOIA request on 11 April 2012 to Essex Police. The request [“the Request”] was in these precise terms:
a) According to the National ANPR Data Centre [NADC – my addition], all ANPR data which is generated by automatic number-plate readers in Essex, belongs to and is owned by the Chief Constable to Essex Police. The NADC are merely the “controllers” of the data.
b) On that basis, please can you provide me with the archive national ANPR details for all activations in relation to Vauxhall Vectra (index R529VLH) in Essex on 28 February 2008, in which it was confirmed by Essex Police that I was a passenger on that particular day.
c) Should it be the case that this ANPR data has become deleted from the NADC database, please can you inform me, on whose authority was the data deleted and the precise date of the deletion.
d) Just so there is no ambiguity or confusion as to the correct registration of the vehicle and the precise date of the information required. It is Vauxhall Vectra “Romeo-five-two-nine-Victor-Lima-hotel” on the Twenty-eighth of February Two-thousand-and-eight (see page 01 in the bundle attached).
 
10.	Essex Police refused to confirm or deny whether it held this information. In refusing this Request, Essex Police relied on section 40(5)(b)(i) of FOIA, namely that confirming or denying would contravene the data protection principles.

11.	Mr Smith contacted the IC on 31 July 2012 to complain about the way his request for information had been handled. For the reasons set out in his Decision Notice dated 27 June 2013, the IC found that Essex Police were entitled to rely on the exemption in section 40(5)(b)(i) of FOIA. Mr Smith appealed to the FTT on 9 July 2013.
 
The Tribunal Decision

12.	The FTT considered the appeal on the papers alone as had been 	agreed by Mr Smith and the IC, Essex Police playing no part in the 	proceedings. On 7 November 2014 the FTT dismissed the appeal, 	agreeing with the IC that the refusal by Essex Police to confirm or 	deny whether information was held in reliance on section 40(5)(b)(i) of 	FOIA was lawful since to do so would contravene the 	data protection 	principles in relation to the personal data of a third party.

13.	The FTT noted the background to the Request and Mr Smith’s belief 	that the information would assist him to demonstrate that he was the 	victim of a miscarriage of justice. It noted that Mr Smith appeared to 	have, in fact, obtained the requested information during the course of 	the criminal proceedings against him. On 24 April 2009 the Crown 	Prosecution Service had informed Mr Smith’s solicitors that Essex 	Police had no ANPR records for a vehicle registered as R529VLH 	travelling on 28 February 2008. The FTT noted that, even if this were 	so, Mr Smith 	was still properly entitled to make the Request as 	disclosure in 	response to a Request was disclosure to the world at 	large.

14.	The FTT identified that the issue was whether confirming or denying 	if the information was held would breach the data protection	principles 	because the information would reveal personal data of the registered 	keeper of the vehicle. The IC had held that disclosure would 	be unfair 	and thus would breach the first data protection principle. The FTT ruled 	that fairness required a balance of the interests at play but the interests 	of the data subject required a high degree of protection [see paragraph 	28 of the FTT’s Reasons]. 

15.	The FTT considered whether the information was already in the public 	domain by reason of the criminal trial and concluded that it was not. 	The personal data of the third party was not specifically referred to in 	any of the newspaper reports about both trials and was not mentioned 	in the Indictment. The FTT found that there was “nothing to suggest 	that the allegation that the vehicle in question was being driven in 	Essex on that day was so fundamental to the charge against Mr Smith 	and the third party that the fact of the trial and the convictions can be 	said to have put that information into the public domain” [paragraph 29, 	FTT Reasons]. There would thus be some harm to the third party if the 	information were to be disclosed in response to a FOIA request though 	that harm – an invasion of privacy - would be relatively minor given that 	the information had been part of a criminal trial. 

16.	The FTT endorsed the general expectation that information of this 	nature, being personal data, would not be disclosed by a public 	authority without a strong competing public interest in favour of 	disclosure.  Each case had to be considered on its particular facts in 	order to determine whether disclosure would be fair in relation to the 	subject of any personal data [paragraph 32, FTT Reasons]. 

17.	Having regard to the competing interests in favour of disclosure, Mr 	Smith stated that the requested information would help him challenge 	his conviction and expose the wrong-doing of Essex Police. The FTT 	accepted that, if Mr Smith had been wrongfully convicted, this would be 	a matter of considerable public interest. However the FTT held that it 	was beyond its remit to make findings on such an issue and that there 	was no proper evidence before it which would support such a finding. 	There were other and more appropriate channels for Mr Smith to seek 	redress of any miscarriage of justice in relation to his conviction. It 	observed that “the mere allegation that he has been wrongfully 	convicted is not enough to outweigh the interest of the data subject” 	[paragraph 33, FTT Reasons].

18.	The FTT concluded that, although on the particular facts the invasion of 	privacy would not be considerable, disclosure would not be fair. It was 	thus not necessary to consider whether any conditions in Schedule 2 of 	the Data Protection Act 1998 [“the DPA”] were met.

  The Appeal to the Upper Tribunal

19.	The First-tier Tribunal refused permission to appeal on 24 March 	2014. Mr Smith then applied to the Upper Tribunal for permission to 	appeal on 15 April 2014 and Upper Tribunal Judge Jacobs refused 	permission to appeal on the papers on 22 May 2014. As provided for 	by rule 22(4)(a), Mr Smith applied for his application to be reconsidered 	at an oral hearing. His request was granted by Upper Tribunal Judge 	Lloyd-	Davies on 12 August 2014 and a hearing was listed to take 	place before me on 29 January 2015. Unfortunately that hearing had 	to be postponed because of problems transporting Mr Smith from 	prison to court. 

20.	Having reviewed the papers in preparation for the hearing I directed 	some written submissions from the IC on a legal issue which had not 	hitherto been contentious. I observed that Mr Smith, the IC and the 	FTT had all accepted that the information which might be revealed by 	Essex Police constituted the personal data of a third party. What did 	not appear to have been considered is whether that information would 	also constitute personal data belonging to Mr Smith because either (a) 	that information was processed by Essex Police during the course of 	an investigation in order to learn something about both the third party 	and Mr Smith and/or (b) the third party’s personal information was 	personal data affecting another individual. 

21.	In response to that direction, the IC filed submissions which accepted 	that the information requested by Mr Smith did in fact constitute both 	his personal data and the personal data of the third party. In those 	circumstances he stated that the exemption in section 40(5)(a) of FOIA 	would also apply, since the requested information was personal data of 	which Mr Smith was the data subject. If that exemption did apply, the 	IC said it would have been more appropriate for Mr Smith to seek it by 	means of a subject access request pursuant to section 7 of the DPA.

22.	At my invitation, Mr Smith made written submissions in response to the 	IC’s concession. In summary these made reference to a subject 	access request he had made to Essex Police in July 2012 for his 	personal data. He said that he never formally made that application 	since Essex Police told him on 31 July 2012, “before you submit your 	application, that Essex Police will 	not provide you with any information 	that relates to Automatic Number 	Plate Recognition (ANPR) systems 	under the Subject Access Process” [Upper Tribunal bundle (UTB), 	page 51]. Mr Smith interpreted the response to his Subject Access 	Request as sinister and suggested that his Request for information had 	been re-routed down the wrong processing pathway by Essex Police in 	order to provide sufficient time for the data to be automatically 	deleted. I note that the automatic weeding facility for ANPR data was 	enabled in April 2012 and prior to this date police forces were given the 	opportunity to request the extraction of any data they required to be 	retained [UTB, page 52].

23.	Unfortunately, for a variety of logistical reasons, it was not possible to 	arrange a hearing other than by way of telephone until 26 November 	2015. The IC indicated that he did not wish to participate in that hearing 	and so I heard from Mr Smith alone. I granted permission to appeal 	limited to the grounds set out in my ruling and reserved my position as 	to whether Essex Police should be joined as a party to the proceedings 	until I had read the submissions of the IC. Having considered those 	submissions and with the consent of both Mr Smith and the IC, I joined 	Essex Police as a party to this appeal on 22 April 2016.

24.	After setting out the legislative framework, I will deal with the main 	grounds of appeal in order of importance.

The Legislative Framework 

25.	Section 1(1)(a) of FOIA states that a person making a request for 	information is entitled to be told in writing whether the public authority 	holds that information. Section 1(6) refers to this as the public 	authority’s duty to confirm or deny. If the information is held and none 	of the exemptions in FOIA apply, the public authority should 	communicate the information to the requester. The issue was whether 	Essex Police was required to confirm or deny that it held the 	information requested or whether it was exempt from the duty to do so 	by reason of the provisions of section 40 of FOIA.

  26.	Section 40(1) provides that 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. Section 40(5) reads as 	follows:
	“The duty to confirm or deny -
	(a) does not arise in relation to information which is (or if it were held by 	the public authority would be) exempt information by virtue of 	subsection (1) and
	(b) does not arise in relation to other information if or to the extent that 	either –
	(i) the giving to a member of the public of the confirmation or denial that 	would have to be given to comply with section 1(1)(a) would (apart 	from this Act) contravene any of the Data Protection Principles or 	section 10 of the Data Protection Act 1998 or would do so if the 	exemptions in section 33A(1) of the Act were disregarded, or
	(ii) by virtue of any provision of Part IV of the Data Protection Act 1998 	the information is exempt from section 7(1)(a) of that Act (data 	subject’s right to be informed whether personal data being processed).” 

27.	The effect of section 40(5)(b)(i) is that if, by simply confirming or 	denying that it holds the information, any of the data protection 	principles or section 10 of the DPA (processing likely to cause damage 	or distress) would be contravened, the public authority is exempt from 	the duty to do so.

28.	The first data protection principle provides that personal data shall be 	processed fairly and lawfully and in particular shall not be processed 	unless at least one of the conditions in Schedule 2 of the DPA is met. 	The term “process” is defined in section 1 of the DPA and includes 	disclosure to a third party or to the public at large. 

29.	Finally, the definition of personal data is set out in section 1(1) of the 	DPA. It is:
	“data which relates to a living individual who can be identified -
	(a) from those data, or
	(b) from those data and other information which is in the possession of, 	or is likely to come into the possession of the data controller,
	and includes any expression of opinion about the individual and any 	indication of the intentions of the data controller or any other person in 	respect of the individual.” 
	That definition imposes two requirements: identifiability and the 	relation between the individual and the data.

Grounds 4 and 5

30	When giving permission to appeal, I noted that the FTT had jurisdiction 	to undertake a full review of the merits of the IC’s decision and to 	substitute its own view if it considered that the IC’s decision was wrong. 	The IC’s Decision Notice determined that the requested information did 	not constitute Mr Smith’s personal data. Given that the IC had 	conceded that the information did constitute Mr Smith’s personal data, I 	considered it arguable that the FTT failed in its inquisitorial function 	to 	examine carefully the reasoning behind the Decision Notice about the 	nature of the data in question. It simply failed to address it. That had 	some relevance since the FTT might have found the information should 	have been sought via a Subject Access Request pursuant to section 7 	of the DPA and Mr Smith could have been advised accordingly. If that 	were the case, the FTT might also have made enquiry as to whether 	Essex Police had provided appropriate assistance and advice to Mr 	Smith when he made his request for information in accordance with its 	duty under section 16(1) of FOIA.

The Parties’ Arguments

31.	The IC conceded that the requested information was also Mr Smith’s 	own personal data. In so doing, he had regard to the context of the 	Request; noted that the Request specifically stated that Mr Smith was 	a passenger in the vehicle at the relevant time; considered that 	confirmation or denial would reveal (a) the precise times at which Mr 	Smith and the third party were at specific locations and (b) that Essex 	Police were or were not investigating the activities of the vehicle; and 	considered that, in the light of this, the information was indeed the 	personal data of Mr Smith as well as the third party. He submitted that, 	in those circumstances, section 40(5)(a) of FOIA also applied so as to 	exempt Essex Police from the duty to confirm or deny. 

32.	Further he submitted that the FTT had not erred in law by not 	investigating the matter since there was a well-established convention 	that, where a matter is not in issue, a tribunal has no obligation to go 	behind the parties’ agreement on that matter. Mr Smith’s Notice of 	Appeal disclaimed any reliance as to whether or not the DPA regime 	was more appropriate than the FOIA regime. Indeed, The IC said this 	was not a case where the applicability of the DPA was obvious. 	Confirmation or denial of the fact that Essex Police held a licence plate 	number would on its own only identify personal data of the 	registration holder. It was only in combination with the Request, stating 	that Mr Smith was a passenger in the car at the relevant time, that it 	was apparent that confirmation or denial might also reveal Mr Smith’s 	personal data. Finally, given that both sections 40(5)(a) and 40(5)(b)(i) 	were absolute exemptions, Mr Smith would not have been assisted in 	obtaining the information by an FTT decision either that section 	40(5)(a) applied or any consideration whether Essex Police had 	complied with its duty to provide advice or assistance to him. The 	chronology	showed that Essex Police had in fact given Mr Smith 	information about the possibility of a Subject Access Request under 	the DPA and had expressed its view about the likely outcome of such a 	request.

33.	Essex Police accepted that it had not found it easy to determine 	whether the requested information was Mr Smith’s personal data at all.  	It was accepted that, where Mr Smith was identifiable from the context, 	that context also revealed something about him but it was submitted 	that this link might not be sufficient to warrant classification as 	biographical information in a significant sense (applying the leading 	authority of Durant v Financial Services Authority [2003] EWCA Civ 	1746). If the IC’s concession was correct, this had no material impact 	on the outcome of the appeal.

34.	Essex Police submitted that the information would be mixed personal 	data – of Mr Smith and the third party – and, in those circumstances, 	the data controller was not obliged to attempt an analysis as to which 	of them was the more significant and then to recognise that person’s 	right to protection. Upholding the exemption by reference to the 	information being the personal data of a third party was a complete 	answer to Mr Smith’s appeal. The fact that it was also his data would 	only have provided a further lawful basis on which to refuse the appeal. 

35.	Finally Essex Police agreed with the IC that the FTT was not obliged to 	go behind the manner in which the appeal was put by the parties. 	There was no need to consider this matter where the issue which the 	parties did want determining had the effect of resolving both issues. 	There was no error of law or alternatively none which was material to 	the outcome.

36.	For the avoidance of doubt, Essex Police denied any police 	wrongdoing.

37.	Mr Smith’s submissions focussed in considerable detail on the process 	whereby he came to be convicted and on what he considered to be a 	less than adequate response to requests for information made by both 	him and by his legal team of Essex Police during the course of the 	criminal trial. He averred that Essex Police had failed to fulfil its 	statutory function to provide advice and assistance to him pursuant to 	s.16(1) of FOIA. Essex Police had sent him down the wrong data 	request access pathway – that was a means to stall him so that it could 	expunge the ANPR data relating to his case.

The Upper Tribunal’s Analysis

38.	It is no part of my role to pass an opinion on the overall conduct of 	Essex Police towards Mr Smith nor to venture any opinion on either the 	merits of or the circumstances surrounding his conviction.  

39.	Was Mr Smith’s Request for his own personal data? In determining 	whether information constituted personal data, Mr Knight referred me 	helpfully to the relevant case law. When determining whether 	information constitutes personal data because of the likelihood of 	identification, the tribunal’s approach should be to take account of “all 	the means likely reasonably to be used either by the controller or by 	any other person to identify the said person”. This is the wording of 	recital 26 of directive 95/46/EC which formed the basis for the DPA and 	which was adopted by Judge Mullan in Information Commissioner v 	Magherafelt District Council [2012] UKUT 263 (AAC) at paragraphs 	63,79, and 86.  It is also necessary for the FTT to consider the context 	in which the data appears (see paragraph 18 of the decision of Judge 	Jacobs in Farrand v Information Commissioner & London Fire and 	Emergency Planning Authority [2014] UKUT 310 (AAC)). It must also 	follow that the Request itself forms part of the context against which 	identification takes place.

40.	Durant v Financial Services Authority [2003] EWCA Civ 1746 continues 	to be the leading authority on whether data “relates” to an individual so 	that it is personal data. To summarise: first, the information must be 	biographical in a significant sense and second, it must have the 	putative data subject as its focus. Thus it must be possible to identify a 	living individual and that person must either be among the focuses of 	the information or the information must be biographical in a significant 	sense [see the analysis of Auld LJ in paragraph 28 of Durant]. Mr 	Knight suggested that another way of thinking about this test was to 	consider (a) if the information said anything non-anodyne about an 	individual or (b) if the individual was merely incidental to or a bit-part in 	that information.

41.	In this case, Essex Police accepted that Mr Smith was identifiable from 	the context and that the context also revealed something about him. 	However, it submitted that the link was insufficient to warrant 	classification as biographical in a significant sense. At most 	confirmation or denial might tell the public that Mr Smith was in a 	vehicle in Essex on a particular day which was picked up on ANPR 	camera(s). Where the car did not belong to Mr Smith and there was 	nothing to suggest how long he was inside the vehicle, Essex Police 	submitted that “it was something of a stretch” to say that confirmation 	or denial could affect his privacy in a material sense. 

42.	The IC submitted that confirmation or denial of whether the information 	was held at the time of the Request would effectively reveal the precise 	times at which Mr Smith and the third party were at specific locations 	and, importantly, that the police were or were not investigating the 	activities of the vehicle and who was travelling in it at the relevant time. 	This was because it was likely that the information would have been 	deleted if the police 	had not been processing that information for 	investigatory purposes. 

43.	Mr Smith submitted that the requested material was clearly his 	personal data as well as that of the third party. He emphasised the 	fact that he was actually the driver of the vehicle rather than the 	passenger but I have decided nothing material turns on that issue 	when considering if 	the requested information was also his personal 	data.

44.	On this issue, I accept in large part the submissions of the IC. The 	Request made clear that Mr Smith was an occupant of the named 	vehicle on the date in question. He was thus identifiable from the 	context. Confirmation or denial that, at the time of making the 	Request [my emphasis], Essex Police held the ANPR data requested 	would have revealed that the police were or were not investigating the 	activities of the vehicle and by implication, the activities and identities 	of both of its occupants. Given those circumstances, it is difficult to 	envisage that the requested information was not biographical about 	Mr Smith in a significant sense. To use Mr Knight’s suggested test, Mr 	Smith was not merely incidental to the information and it said 	something non-anodyne about him, namely that he might or might not 	be the subject of a police investigation. The context and the timing of 	the Request are the two crucial factors which drive my analysis, in the 	circumstances of this case, towards the conclusion that the requested 	data was also Mr Smith’s own data. However, I find that the IC goes 	too far in suggesting that confirmation or denial would effectively 	reveal the precise times at which Mr Smith and the third party were 	at 	specific locations since the Request makes reference only to 	presence in 	Essex in a vehicle on a particular date.

45.	What is the effect of that analysis on the FTT’s decision? There are 	two 	issues to consider: (a) the way in which the FTT approached its task on 	appeal and (b) the effect in law of a finding that the requested 	information also constituted the personal data of Mr Smith.

46.	I have been referred to case law about the function of the FTT and 	accept that this is at least, in part, investigatory rather 	than adversarial 	[see paragraph 33 of Browning v Information Commissioner and the 	Department for Business, Innovation and Skills	[2014] EWCA Civ 	1050]. I also accept that it is the task of the FTT to decide the 	case before it unless it sees reason to investigate further. 

47.	In this case Mr Smith did not dispute that the requested information 	would constitute the personal data of a third party. His Notice of Appeal 	disclaimed reliance on any issue as to whether or not the DPA regime 	was more appropriate than the FOIA regime. The IC also submitted 	that this was not a case where the applicability of the DPA was obvious 	since it was only apparent that confirmation or denial might also reveal 	Mr Smith’s personal data when considering the information requested 	in combination with the Request itself. 

48.	Mr Smith contended that the FTT erred in law on this issue and he 	relied on what he said was the FTT’s failure to address the evidence of 	alleged police wrong-doing. Unfortunately that submission does not 	grapple with the issues of law I have to address. The FTT had to 	consider the applicability of section 40(5) to the requested information 	– the complex history of dealings between Mr Smith and Essex Police 	was not a matter on which it was necessary for the FTT to either find 	facts or to express a conclusion. 

49.	I disagree with the IC that the applicability of the DPA was not obvious. 	In coming to that view I accept that the Farrand decision - relating to 	the context in which the requested data appears - post-dated the 	decision under appeal. However, I note that the tribunal asked itself the 	following in paragraph 26 of its Reasons:
	“In our view, the proper starting point is to identify what personal data 	would be disclosed if the Public Authority were to confirm or deny 	whether it holds the requested information”.
	The tribunal went on to analyse what the ANPR data might reveal but it 	is clear that its conclusions were shaped by the parties’ agreement that 	the information was the personal data of the registered owner. I find it 	very surprising that the FTT did not, when undertaking the task it had 	set itself, ask whether the requested data also constituted the personal 	data of Mr Smith. It knew he was an occupant of the vehicle and had 	clear evidence before it to that effect. The test in Durant would have 	been well known to it. Identifying what personal data might be 	disclosed also, as a matter of logic, engages consideration of whose 	personal data that might be. 

50.	Ultimately, however, I observe that the manner in which the FTT 	approached its task 	will be of no consequence unless the effect in law 	of a finding that the 	requested data was also Mr Smith’s data would 	have altered the tribunal’s ultimate conclusion, namely that Essex 	Police did not have 	to disclose the information.

51.	There can be no doubt that the data was both that of Mr Smith and of 	the third party, that is, mixed personal data. Fenney v Information  	Commissioner (EA/2008/0001) supports the proposition that if 	information incorporates the personal data of more than one person, 	the data controller is not required to attempt an assessment as to 	which of them is the more significant and then to recognise the rights to 	protection of that individual and ignore the rights of the other data 	subjects. Thus, applying Fenney, the presence 	of Mr Smith’s data in 	the requested information made no difference to the FTT’s 	conclusion that the exemption in rule 40(5)(b)(i) should apply as the 	information was personal data of a third party. 

52.	Further, if the requested data was also the personal data of Mr Smith, 	the FTT could also have lawfully dismissed the appeal on the basis that 	the exemption in section 40(5)(a) applied. Thus, I conclude that any 	error of law on the part of the FTT about the nature of the 	information was immaterial to the outcome of this appeal.

53.	Finally, in my grant of permission I suggested that, if the requested 	data was also personal data which should have been the subject of a 	Subject Access Request, Mr Smith could have been advised 	accordingly and enquiry might have been made by the FTT as to 	whether Essex Police had provided appropriate advice to him in 	accordance with its duty under section 16(1) of FOIA when he made 	the Request.

54.	Having reviewed the material in the FTT bundle, I have come to the 	conclusion that Essex Police did, for example, provide advice to Mr 	Smith 	about requesting his personal data under the DPA in its letter 	dated 19 July 2012. Indeed, the lengthy correspondence between all 	three parties 	prior to the FTT appeal concerned whether the request 	was made under the DPA or FOIA and thus which was the appropriate 	approach to the appeal. It is also clear that Mr Smith had in the past 	made a number of Subject Access Requests to Essex Police and 	clearly knew of this 	parallel route as a means to obtain information.

55.	Given my conclusion set out in paragraph 52, there is nothing of 	substance in ground 5 of my permission grant. I hereby dismiss 	grounds four and five of my permission grant.

Grounds 1 and 2

56.	I considered that it was arguable that the FTT had failed to apply the 	test of “reasonable necessity” in condition 6(1) of Schedule 2 to the 	DPA and had instead applied a public interest test and, further, that it 	had erred either (a) in failing to apply the test set out in Goldsmith 	International Business School v the Information Commissioner and the 	Home Office [2014] UKUT 563 or (b) by providing inadequate reasons 	for its decision.

57.	Section 40(5)(b)(i) engages consideration as to whether the data 	protection principles would be contravened by disclosure of the 	requested information. As previously noted, the First Data Protection 	Principle sets out three requirements for the processing of non-	sensitive personal data. Processing must be fair, lawful and must not 	be done unless at least one of the conditions in Schedule 2 is met. If 	processing is not fair or lawful, the first data protection principle is 	breached regardless of whether a Schedule 2 condition is satisfied.

58.	Here both the IC and the FTT considered the question of whether 	disclosure of the personal data would be fair and concluded it would 	not. The FTT considered the merits when reaching its conclusion and 	thus stated that it did not need to consider whether any conditions in 	Schedule 2 were met. 

59.	I accept the submissions made by the IC and Essex Police that the 	FTT’s review of the merits on the issue of fairness and its conclusion in 	that regard was a decision properly open to it and not erroneous in law. 	In those circumstances, it was not necessary for it to consider 	Schedule 2 or the test in Goldsmith. I also accept that the FTT did not 	err in applying a form of public interest balance when deciding the 	question of fairness. It considered the harm to the third party; that 	party’s reasonable expectations; and the countervailing public interest, 	all of which were proper matters for it to take into account.

60.	I note that Mr Smith did not make detailed submissions on these 	grounds. 

61.	I dismiss grounds one and two.

Ground Three

62.	I questioned whether the FTT could have been improperly influenced 	by its belief that Mr Smith had other more appropriate channels 	available to him to seek redress for a claimed miscarriage of justice. I 	was unclear about the evidential foundation for that finding.

63.	 The FTT noted that Mr Smith had set out at length his arguments in 	favour of disclosure which he said would help him challenge his 	conviction and expose police wrong-doing. It also noted the view of the 	IC that challenging his conviction was a personal interest and exposing 	police wrong-doing was speculative.

64.	The FTT accepted that there was a public interest in reversing wrongful 	convictions but it had no jurisdiction to determine whether Mr Smith 	had been wrongfully convicted. It went further by stating that there was 	no proper evidence before it that could support the proposition that Mr 	Smith had been wrongfully convicted. There were other more 	appropriate channels for Mr Smith to seek redress for any miscarriage 	of justice. The mere allegation that he had been wrongfully convicted 	was insufficient to outweigh the interest of the data subject given 	that there might be some harm to the data subject flowing from 	disclosure.

 65.	I accept that the FTT would have been aware of the routes whereby 	miscarriages of justice might be challenged. The IC supported by 	Essex Police, drew my attention to the FTT’s finding that, despite the 	public interest in reversing wrongful convictions, there was no evidence 	before it to support the proposition that Mr Smith had 	been wrongfully 	convicted. I agree those were findings which he says the FTT were 	entitled to make on its review of the material before it and were 	sufficient to found 	its conclusion that Mr Smith’s beliefs did not 	constitute a public interest 	in disclosure that could outweigh the 	interests of the third party.

66.	On reflection, I accept those submissions. I have considered carefully 	the submissions made by Mr Smith which centre on his bluntly 	expressed belief that Essex Police have behaved wrongfully by “fitting 	him up”. I reiterate that I express no view on that allegation and nor am 	I in a position to make findings on it. I can only consider whether the 	FTT erred in law in its approach to the balancing exercise on this 	issue.  For the reasons set out in paragraph 65, I have come to the 	clear conclusion that this ground of appeal has no merit and 	accordingly I dismiss it.

Conclusion

67.	I have determined that the FTT did not materially err in law when 	reaching its decision in this appeal and I dismiss this appeal for the 	reasons I have given.

Gwynneth Knowles QC
Judge of the Upper Tribunal
11 October 2016.

[signed on original as dated]