Masterman v Information Commissioner

Factual and Procedural Background

An individual ("Appellant") submitted a Freedom of Information Act 2000 ("FOIA") request on 10 March 2023 to a local authority ("the Council") for licence conditions of a House in Multiple Occupation ("HMO") at a specified address. The Council confirmed holding the information but refused disclosure, citing the exemption under section 40(2) FOIA concerning third party personal information. The Information Commissioner ("the Commissioner") upheld the Council's reliance on this exemption in a decision notice dated 20 September 2023. The Appellant appealed this decision to the Tribunal, which agreed to decide the matter on the written papers without an oral hearing. The Appellant challenges the refusal, asserting that the licence conditions should be disclosed in plain English to allow public scrutiny and protect neighbouring property interests.

Legal Issues Presented

1. Whether the requested HMO licence conditions constitute personal data under the Data Protection Act 2018 ("DPA").
2. Whether disclosure of the licence conditions would contravene data protection principles, specifically under Article 5(1)(a) and Article 6(1)(f) of the UK General Data Protection Regulation ("UK GDPR").
3. Whether the Information Commissioner erred in applying the FOIA regime rather than the Environmental Information Regulations ("EIR") regime to the request.
4. Whether the Commissioner properly exercised discretion in balancing the legitimate interests of the requester against the rights and freedoms of the data subject (the licence-holder).
5. Whether the Council complied with the statutory requirement under the Licensing and Management of Houses in Multiple Occupation and Other Houses (Miscellaneous Provisions) (England) Regulations 2006 ("the 2006 Regulations") to publish a summary of licence conditions.

Arguments of the Parties

Appellant's Arguments

• The Council's responsibilities extend beyond the HMO itself to nearby properties and the local community, justifying disclosure.
• The Council improperly refused to provide a summary of licence conditions, instead publishing only coded headings, contrary to the 2006 Regulations which require publication of a summary in plain English.
• The HMO is regarded by the government as a business, and the information sought relates to commercial regulation rather than personal data.
• The Appellant’s own property adjoins the HMO and is being damaged due to the HMO’s condition and use, creating a legitimate interest in disclosure.
• Disclosure would enable tenants and the public to assess compliance and safety, promoting better regulatory outcomes and public scrutiny.
• The Council’s argument that disclosure would reveal prosecutions or fines is unsubstantiated, as such information is not contained within the licence conditions requested.
• The Council has overstepped its authority by not fully disclosing required information and using FOIA exemptions to avoid scrutiny.
• The Appellant requests that the licence conditions be disclosed in plain English as required by law.

Commissioner's Arguments

• The Commissioner acknowledged the legitimate public interest in disclosure but accepted the Council’s position that the licence conditions constitute personal data about the licence-holder.
• The Council treats HMOs as private residences, and the detailed licence conditions reveal personal information about the condition and layout of private property occupied by multiple individuals.
• The licence-holder’s name and address are public, but the detailed conditions are not publicly available and remain personal data.
• Disclosure could reveal whether the licence-holder had been fined or prosecuted, which raises privacy concerns.
• The Commissioner concluded the licence-holder has a reasonable expectation of privacy regarding the detailed licence conditions, and this outweighs the legitimate interests in disclosure, making the exemption under s.40(2) FOIA applicable.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The Tribunal first considered whether the information requested was environmental information under the Environmental Information Regulations ("EIR") and concluded it was, given that HMO licence conditions affect conditions of human life and elements of the environment such as land and water. Although the Commissioner applied FOIA, the Tribunal found this to be an error of law but noted that the legal analysis under FOIA and EIR is largely similar except for EIR's presumption in favour of disclosure.

The Tribunal accepted that the licence conditions constitute personal data because they relate to a specific property owned by an identifiable individual (the licence-holder). The Tribunal agreed with the Commissioner’s framework for assessing lawful processing of personal data under UK GDPR, including the legitimate interest test, necessity test, and balancing test.

However, the Tribunal disagreed with the Commissioner’s exercise of discretion. It found the landlord must reasonably expect that a summary of licence conditions would be published on the Council’s register, as required by the 2006 Regulations. The Tribunal rejected the Council’s argument that the detailed conditions should remain private because they relate to a private residence and might reveal information about prosecutions or fines. The Tribunal found these arguments to be tenuous and unsubstantiated.

The Tribunal emphasized the public interest in protecting tenants, neighbouring properties, and the wider community by ensuring transparency about HMO licence conditions. It concluded that the legitimate interests in disclosure outweigh the privacy interests of the licence-holder in this context.

Holding and Implications

The Tribunal ALLOWED the appeal.

The Tribunal held that the Commissioner’s decision notice was wrong in law to apply FOIA rather than EIR, and erred in balancing the interests in favour of the data subject. The Tribunal substituted a decision requiring the Council to disclose the requested licence conditions summary within 35 days. The information remains confidential under Tribunal rules until disclosure or the outcome of any further appeal.

The direct effect is that the Council must provide the requested information in compliance with the 2006 Regulations and the Tribunal’s order. No new precedent was established beyond the specific findings regarding the application of EIR and the balancing of interests in this case.