Elizabeth Parker v The Information Commissioner

1. This Decision relates to an Appeal brought by Elizabeth Parker against the Information Commissioner’s (‘ICO’) decision notice (‘DN’) of 19 November 2024. The ICO opposes the appeal on the basis that the DN was correctly decided. Request

2. The Appellant submitted a request to the Council on 10 January 2024. She requested information in reference to flooding at her property in the following terms: ‘ All internal flooding investigations and reports following flooding event at [Appellant’s address] on 13 November 2023”

3. On 10 April 2024, the Council responded to the request. It refused the request on the basis of s.21 (Information accessible to the applicant by other means), on the basis that that the Appellant could access the information via the Civil Procedure Rules as an insurance claim had been made.

4. The Council upheld its decision following an Internal Review on 9 May 2024. Complaint to the ICO and the Council’s amendment

5. On 11 May 2024, the complainant contacted the ICO to complain that the Council had not provided its internal review.

6. Once the Appellant became aware that the council had conducted an internal review, the complaint became eligible for investigation on 30 May 2024. Council’s amended decision

7. During the investigation, the Council reconsidered the request. In correspondence dated 8 October 2024 it agreed with the ICO that it should have considered the request in accordance with the EIR, not FOIA. It amended its position and cited regulation 12(5)(b), namely that disclosure would adversely affect the course of justice and the ability of a person (the local authority) to receive a fair trial. It asserted: ‘ If a litigation case was made to the courts, placing this information into the public domain outside of the legal process would be unfair and is likely to undermine the court proceedings and a fair trial. Disclosing information under the EIR would undermine the court proceedings and a fair trial. Disclosing information under the EIR would undermine confidence in the judicial system and might prejudice an individual’s ongoing future case. The Council has considered the Public Interest Test and understands the importance of accountability and transparency which enables the public to understand decisions taken by local authorities, especially where a person has sustained damages. However, the Council considers that this case represents a private matter rather than a public interest. On the above basis, the Council believes that maintaining Regulation 12(5)(b) of the EIR outweighs disclosure of the withheld information’. Decision Notice (19 November 2024)

8. The ICO considered the withheld information which comprised one external and one internal report. He concluded that: a. The external report was not within scope as the request asked for “all ‘internal’ flooding investigations and reports’; b. The internal report was the complainant’s own personal data – this is exempt under regulation 5(3) of the EIR. The separate right of access provided by article 15 of the General Data Protection (GDPR) applies. c. The scope of the ICO’s investigation is therefore to consider whether regulation 5(3) applies to the information withheld by the Council.

9. The ICO concluded: ‘10. The duty to make environmental information available on request is imposed by regulation 5(1) of the EIR. Regulation 5(3) provides that where a request for information constitutes the personal data of which the applicant is the data subject, that regulation 5(1) does not apply. the applicant is the data subject, that regulation 5(1) does not apply.

11. Section 3(2) of the DPA defines personal data as: “any information relating to an identified or identifiable living individual”.

12. The two main elements of personal data are therefore that the information must relate to a living person, and that the person must be identifiable. identifiable.

13. An identifiable living individual is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data or an online identifier; or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of the individual. economic, cultural or social identity of the individual.

14. Information will relate to a person if it is about them, linked to them, has biographical significance for them, is used to inform decisions affecting them or has them as its main focus. affecting them or has them as its main focus.

15. In this case, the Commissioner has considered the withheld information which is a copy of an internal report following an investigation into flooding at the complainant’s own property. It is clear to the Commissioner that the complainant and the complainant’s address are identifiable from the information, and the information is significant and biographical to them. biographical to them.

16. Based on the above, the Commissioner is satisfied that this information constitutes the complainant’s own personal data and finds that the exception at regulation 5(3) of the EIR is engaged. The Council was not therefore obliged by the EIR to disclose the information in question.

10. The DN also stated: ‘Other matters

17. Although they do not form part of this decision notice the Commissioner wishes to highlight the following matters of concern: Correct access regime

18. In this case, the Council failed to recognise that the complainant had requested their own personal data and did not consider the request under the DPA. Whilst the Commissioner cannot require a public authority to take action under the DPA via an EIR decision notice, in view of his decision that the requested information is the personal data of the complainant, the Council should consider providing a response to the complainant under the DPA in respect of the information they requested. requested.

19. The Commissioner would point out that this does not necessarily mean that the complainant is entitled to receive this information. There are a number of reasons why a data controller may be entitled to withhold information from disclosure under a Subject Access Request (SAR). Inevitably therefore, there will be some information that the complainant is not entitled to receive either via the EIR or via a SAR’. Further Correspondence

11. On 19 November 2024, the Appellant asked the ICO to explain in plain English what the DN meant and whether it was a yes or a no.

12. On 21 November 2024, the ICO responded in the following terms: ‘ Thank you for your email of 19 November 2024. The decision notice means that as it is your personal information, it’s not suitable to be disclosed under the Freedom of Information Act 2000 (the FOIA) or the Environmental Information Regulations (the EIR) as they are disclosures to the world at large. That effectively means a ‘no’ under this legislation. However, following the decision notice, the Council may decide to proactively disclose it to you under the provisions of the Data Protection Act 2018 (the DPA). Alternatively you could submit a Subject Access Request (SAR) to the Council and it would then have to consider this information. However, as the decision notice stated, there are also exemptions under the DPA which may or may not apply to this information. So to put it in plain English, you’re not entitled to it under the FOIA or EIR, but you may be entitled to it under the DPA. I’m sorry I can’t be any more specific than that, but I hope it helps’. Grounds of Appeal

13. On 30 November 2024 ,the Appellant appealed against the decision on the following grounds: ‘I have asked for FOI request regarding a flood at my house in November 2023 caused by Storm Debbie. The council are to blame as the drain was blocked with a tree. This drain has never been maintained. I phoned emergency line that night, requested URGENT help for sandbags, was told would be a few hours. Fire brigade spoke to them, demanding sand bags, and they were delivered within 10 minutes, too late had been done!! I have lived in this property 33 years, and never seen them cleaning ‘the’ drain. This is the second time I have been flooded near enough to the same date but the last one was in December 2000. Where again I lost everything downstairs that time including my beloved pet dog. This was from a blocked culvert, which I would say is a good ¼ mile if not a bit further from my house. Obviously I got flooded then because the ‘said’ drain was blocked then, but they didnt [sic] look into it. I have picture and videos where they could not find the drain. My insurance has doubled in price due to the council neglect. I am only asking for MY own information and what the council have said and done. It didn’t affect anybody else in street, so I can’t see the reason why they are holding apart from the fact they know they are in the wrong! I had to have Christmas sat on a single dining chair, no flooring very cold, my animals suffered too. No electrical items (white goods etc) I finally managed to get a set settee and furnishings but it took a good 3 months, My mental health went down hill. Every time it rains heavy, I am on tenderhooks in case it happens again! I know they have said they have fixed drain, but my anxiety goes through the roof. I am checking drain constantly. My sons go on a regular basis and check the culvert when in [sic] rains, as they don’t maintain that very often. When questioned years ago, they didn’t know it ‘existed’ The Council should agree they are in the wrong. The need to maintain drains, to stop the flooding, we pay the council tax for them to do it, they are not providing the service they are claiming money for’.

14. In response to the question ‘ What outcome you are seeking from your appeal’, the Appellant wrote: ‘ I want MY information and I think the council should pay me compensation, they didn’t even other [sic] me any. I want them to admit they were in the wrong. I want regular checks done and kept informed that it has been done. This being the drains and the culvert’. ICO’s Response

15. In its response, the ICO requested a strike-out on the basis that the there are no reasonable prospects of success.

16. Alternatively, he asks for the appeal to be dismissed for the reasons in the DN and because the Appellant has not set out any ‘ cogent argument as to why the Commissioners Decision Notice is not in accordance with the law and/or why the Commissioner ought to have exercised any discretion differently’.

17. He further submits: ‘20. The Appellant has set out one paragraph in their grounds of appeal regarding the requested information: “I am only asking for MY own information and what the council have said and done. It didn't affect anybody else in street, so I can't see the reason why they are with holding apart from the fact they know they are in the wrong!”

21. Firstly, the Commissioner submits that the Appellant is acknowledging here that the information they are requesting is their own personal data, and therefore the Commissioner maintains that this is information that falls under Regulation 5(3) EIR.

22. Secondly, the Commissioner submits that the reason why the requested information has not been disclosed to the Appellant under EIR, has been explained: a) In the body of the Decision Notice; and b) In the post-Decision Notice emails between the Appellant and the Commissioner between 19 November 2024 and 21 November 2024 (see paragraphs 7-8 of this Response).

23. In any event, the Commissioner respectfully submits this paragraph of the grounds of appeal again does not provide any evidence that that the Commissioner’s Decision notice is not in accordance with law, or that he should of exercised his discretion differently....

25. The Commissioner submits that it is permissible, and indeed necessary, to consider the context in which the data appears (see Farrand v Information Commissioner & London Fire and Emergency Planning Authority [2014] UKUT 310 (AAC) [§18]).

26. In this case, if the withheld information is read in conjunction with the Appellant’s request, then it is clear that withheld information is personal data relating to the Appellant and therefore the Commissioner maintains that the Council were correct to apply Regulation 5(3) EIR to withhold the information’.

18. The ICO further submitted that in regard to section 8 of the notice of appeal, the Tribunal does not have jurisdiction to: a. Order the Council to pay compensation; b. Order the Council to admit that it is wrong; c. Order the Council to undertake regular checks of the drains and the culvert and inform the Appellant that those checks have been done. Tribunal Decision relating to the Strike Out

19. In Case Management Directions dated 24 July 2025, Judge Roper refused to strike out the appeal. Further Correspondence

20. The Tribunal has been provided with an email sent from the Council to the Appellant dated 23 January 2025: ‘I am writing to you regarding a decision notice the Council has received from the ICO regarding an Environmental Information Regulation request. The ICO has advised the Council that your request should not have been dealt with under these regulations but as a Subject Access Request (SAR) and has asked that we reassess your request. Therefore, your request has been passed to the Information Management Team as we process SARs on behalf of the Council. I can advise that your request was validated with effect from 23.12.2024, with a response due date of 23.01.2025 and your reference number is 217/2425. Having liaised with the Councils Insurance department about your request, they have informed us that they have applied an exemption to the information you require which is the Legal Professional Privilege exemption as it was compiled solely as a result of a claim being submitted. I appreciate this is not the answer you’re looking for however, should you have any queries regarding your response, please do not hesitate to contact the Information Management team via email ( [email protected] ) or telephone 01443 562289 or additionally, you have the right to raise a complaint with the Information Commissioner. However, I kindly request that you contact us in the first instance and allow us the opportunity to resolve any concern you may have’.

21. The Appellant responded in an email dated 23 January 2025 stating: ‘ Thank you for your reply. It is not what I wanted, can’t see why I can’t have MY own information, unless council are hiding something. I won’t be taking it to the ICO, as I have now contacted the first tier tribunal to look into the matter’. Legal Framework

17. Regulation 5(1) EIR states: ‘ Subject to paragraph (3) and in accordance with paragraphs (2), (4), (5) and (6) and the remaining provisions of this Part and Part 3 of these Regulations, a public authority that holds environmental information shall make it available on request’.

18. Regulation 5(3) states: ‘ To the extent that the information requested includes personal data of which the applicant is the data subject, paragraph (1) shall not apply to those personal data’ The Tribunal's Role

19. The Appeal is by reg. 18 EIR (which provides that the appeals provisions under Part V of FOIA shall apply as modified for the purposes of the EIR) and section 57(1) FOIA which provides that:- "Where a decision notice has been served, the complainant or the public authority may appeal to the Tribunal against the notice."

20. By section 58 FOIA the Tribunal’s role is to consider whether the DN is in accordance with the law or where the ICO’s decision involved exercising discretion, whether it should have exercised it differently. It is a full merits jurisdiction. The tribunal may receive evidence that was not before the ICO and may make different findings of fact from the ICO. If the Tribunal determines the DN was not in accordance with the law or that a discretion should have been exercised differently it can allow the appeal and/or substitute a different Notice that could have been served by the ICO. Unless these apply the Tribunal shall dismiss the Appeal.

21. For the purposes of determining this appeal, we have considered those documents contained within the open bundle consisting of 96 (electronic) pages, the closed bundle of 25 (electronic) pages and the oral submissions made by the Appellant during the course of the hearing – we do not set these out here. We note that the ICO did not send a representative to the hearing but instead relied on their written submissions. Discussion and Conclusions

22. The issues for the Tribunal are: a. Whether the external report fell outside the scope of the request for “internal” investigations and reports; b. Whether the internal report is the Appellant’s own personal data such that regulation 5(3) EIR applies; c. Whether the exception under Regulation 12(5) applies; d. Whether any matter arising from subsequent correspondence regarding a Subject Access Request (and Legal Professional Privilege) under the data protection regime alters the lawfulness of the DN; and e. The scope of the Tribunal’s jurisdiction given the nature of the relief sought by the Appellant.

23. We consider each of these below. (a) Did the external report fall outside the scope of the request for “internal” investigations and reports?

24. The request was expressly confined to “ internal ” flooding investigations and reports. For this reason, we find that the ICO was entitled to conclude, that an external report (ie one produced by a third party) was outside the scope of the request. As such, there was no obligation to disclose the external report. (b) Was the internal report the Appellant’s own personal data such that regulation 5(3) EIR applies?

25. The internal report concerns the investigation of flooding at the Appellant’s property and identifies the Appellant and her address. It is information that relates to the Appellant and has biographical significance for her. It is therefore her personal data for the purposes of section 3(2) Data Protection Act 2018 .

26. Section 3(2) Data Protection Act 2018 states: ‘ Personal data’ means any information relating to an identified or identifiable living individual’.

27. Section 3(3) Data Protection Act 2018 states: ‘ Identifiable living individual’ means a living individual who can be identified, directly or indirectly, in particular by reference to – (a) an identifier such as a name, an identification number, location data or an online identifier, or (b) one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of the individual’.

28. Where the requested information is the requester’s own personal data, regulation 5(3) EIR provides that the general duty to make environmental information available under regulation 5(1) does not apply. The correct route of access—if any—is a Subject Access Request under the data protection legislation (Article 15 UK GDPR / Data Protection Act 2018 ).

29. It follows that the ICO was correct to conclude that the Council was not obliged by the EIR to disclose the internal report to the Appellant. (c) Does Regulation 12(5)(b) apply

30. In correspondence dated 8 October 2024, the Council amended its original position and cited regulation 12(5)(b), namely that disclosure would adversely affect the course of justice and the ability of the local authority to receive a fair trial.

31. We find that regulation 5(3) applies in the specific facts of this appeal. As such Regulation 12 does not arise. We find the Decision Notice was right to dispose of the matter on the personal data point. (d) Whether any matter arising from subsequent correspondence regarding a Subject Access Request (and Legal Professional Privilege) under the data protection regime alters the lawfulness of the DN

32. Following the issuance of the DN, the Council stated that it would instead treat the matter as a SAR and sought to rely on the legal professional privilege exemption under data protection legislation. These later developments do not alter the Tribunal’s assessment of the lawfulness of the DN. Our remit is to consider the DN, and the circumstances surrounding it, as they existed at the date of the ICO’s decision on 19 November 2024.

33. In her response to the SAR outcome, the Appellant confirmed that she did not intend to challenge the Council’s position and that she had contacted the First-tier Tribunal about the issue. This Tribunal has no jurisdiction to consider any matter arising from the Council’s handling of the SAR. Any concerns relating to a SAR must be pursued under the data protection framework, including, where appropriate, by raising a complaint with the Information Commissioner. It is regrettable—indeed, markedly so given the history of this case—that the Appellant does not appear to have been informed of this by the Council. She was provided very little advice or assistance. (e) What is the scope of the Tribunal’s jurisdiction given the nature of the relief sought by the Appellant?

34. The Appellant seeks disclosure, compensation, an admission of wrongdoing by the Council, and operational orders for drain/culvert maintenance with ongoing reporting. In an EIR/FOIA appeal, the Tribunal’s function is confined to reviewing the lawfulness of the DN and, where appropriate, determining disclosure obligations under the information access regime. The Tribunal has no jurisdiction to award compensation, adjudicate upon civil liability or negligence, compel admissions, or mandate operational maintenance or inspection programmes. Conclusion

35. In conclusion, we find that the DN was in accordance with the law. The external report was out of scope, and the internal report comprises the Appellant’s own personal data so that regulation 5(3) EIR disapplies the duty to disclose. The appeal is therefore dismissed, and no steps are required of the Information Commissioner.

36. For the avoidance of doubt, nothing in this decision determines any Subject Access Request outcome or any question of civil liability or operational performance by the Council. Signed Date: Judge Kiai 20 February 2026