FOI Request Review of Landlords and Housing Benefit
Original Request and Response http://www.moray.gov.uk/moray_standard/page_117523.html
Thanks for this response but it is incomplete because you haven't included the names of individuals (see the ICO ruling on a previous request which I referenced).
" I would like to draw your attention to an ICO ruling on the use of the Section 40 exemption in this context. It ruled in favour of the disclosure of the names of individual landlords: https://ico.org.uk/media/action-weve-taken/decision-notices/2015/1043296/fs_50547446.pdf"
Following your request for a review of our response to the FOI you submitted, 101001716870 a review meeting was held at the council offices on Monday 5th February 2018. In attendance were the Records and Heritage Manager, Senior Solicitor, Benefits Manager and the Information Coordinator.
The review meeting considered the application of the exemption at Section 38(1)(b) of the Freedom of Information (Scotland) Act 2002 (personal information) to withhold the names of private individuals on the list. The review meeting considered the information to be personal data exempt from disclosure under that section of the act. Section 38(1)(b) is not subject to a public interest test and, as such, not public interest test was carried out.
The review request cited a decision (reference: FS50547446) made previously by the ICO in respect of the application of Section 40(2) of the Freedom of Information Act 2000. The review meeting considered the ICO’s judgement in this case and notes that the ICO required the disclosure of the withheld landlord names. The review meeting considered the ICO’s position, and ultimate decision, to be an advisory factor in considering the review request.
The review meeting noted the application of Schedule 2 Condition 6 of the DPA in the ICO’s decision notice. The review meeting also considered the application of Schedule 2 Condition 6 in the Supreme Court judgement in the case of South Lanarkshire Council v The Scottish Information Commissioner with regard to the Freedom of Information (Scotland) Act 2002 (http://www.bailii.org/uk/cases/UKSC/2013/55.html). The review meeting considered Section 2 condition 6 relevant in this case, that condition being;
“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.”
Under the Freedom of Information (Scotland) Act 2002, requests for information do not need to be accompanied by an explanation of the legitimate interest pursued by the requester. The council has considered the request ‘blind’ with regard to the requester’s motivation to seek, or interest in, the requested information. The review meeting, therefore, has limited insight into the interest pursued of the requester and cannot fairly consider the legitimacy of the interest pursued or the necessity of disclosing the withheld information for the purpose of that interest. Further, this lack of information means that the review meeting cannot consider fairly whether the processing would be unwarranted in this particular case.
The review meeting acknowledge there may appear to be legitimate interest, in very general terms, for the public to know how public money is spent we have disclosed details of the sums, which satisfies that interest. We have not disclosed details of individual names as we can see no legitimate interest in knowing the names of individuals in receipt of those sums.
The review meeting, therefore, cannot be satisfied that Schedule 2 Condition 6 of the DPA is met and, as a result, continues to consider the withheld information exempt under section 38(1)(b) of the Freedom of Information (Scotland) Act 2002.
The review meeting considers that the lack of information provided regarding the requester’s legitimate interest should not be used to conclude, finally, that Schedule 2 condition 6 of the DPA is not met. The review meeting considers it appropriate to invite the requester to provide information about the legitimate interests pursued and why disclosure of the withheld information is necessary for pursuing those interests. The Council also considers it appropriate to seek the views of the data subjects (subjects of the withheld information) as such submissions were considered relevant in the ICO’s decision notice (reference: FS50547446) as this will help to inform the decision on whether such disclosure would be unwarranted.
If some or all of the above information is provided the council will convene a new review meeting to consider the review again with this information. The council will reconsider the information provided to test if Schedule 2 Condition 6 of the DPA is met. The council will use the three questions for applying Schedule 2 Condition 6 as described in the Supreme Court judgment (http://www.bailii.org/uk/cases/UKSC/2013/55.html) (paragraph 18):
“[Schedule 2] condition 6 requires three questions to be answered:
(i) Is the data controller or the third party or parties to whom the data are disclosed pursuing a legitimate interest or interests?
(ii) Is the processing involved necessary for the purposes of those interests?
(iii) Is the processing unwarranted in this case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject?”