Jamie Bryson v The Information Commissioner & Anor

Preliminary matters

1. In this decision , we use the following terms to denote the meanings shown: Appellant: Jamie Bryson. Balancing Test: The last limb of the Legitimate Interests Test, as referred to in paragraph 36. Call-In Requisition: The ‘call-in’ requisition which was the subject of the Request. Commissioner: The Information Commissioner (the First Respondent). Council: Ards and North Down Borough Council (the Second Respondent). Councillors: The councillors who were signatories to the Call-In Requisition. Decision Notice: The Decision Notice of the Commissioner dated 20 February 2025, reference IC-319497-X0D9 , relating to the Request. DPA: The Data Protection Act 2018. Duty to Disclose: The duty of a public authority to communicate requested information which it holds, pursuant to section 1(1)(b) (set out in paragraph 24). FOIA: The Freedom of Information Act 2000. Ground 1: The first of the Appellant’s grounds of appeal, as specified in paragraph 14.a. Ground 2: The second of the Appellant’s grounds of appeal, as specified in paragraph 14.b. Legitimate Interests Basis: The basis for lawful processing of personal data specified in Article 6(1)(f), as set out in paragraph 32. Legitimate Interests Test: The three-part test for establishing the Legitimate Interests Basis, referred to in paragraph 35. LGA: The Local Government Act (Northern Ireland) 2014. Public Interest Test: The test, pursuant to section 2(2)(b) (set out in paragraph 27), as to whether, in all the circumstances of the case, the public interest in maintaining the exemption to the Duty to Disclose outweighs the public interest in disclosing the information. Request: The request for information made to the Council by the Appellant dated 25 April 2024, as set out in paragraph 5. Requested Information: The information which was requested by way of the Request. UK GDPR: The General Data Protection Regulation (EU) 2016/679, as it forms part of domestic law in the United Kingdom by virtue of section 3 of the European Union (Withdrawal) Act 2018. Withheld Information: The names and signatures of the Councillors on the Call-In Requisition .

2. Unless the context otherwise requires (or as otherwise expressly stated), references in this decision : a. to numbered paragraphs are references to paragraphs of this decision so numbered; b. to any section are references to the applicable section of FOIA; c. to any Article are references to the applicable Article of the UK GDPR; d. to the Commissioner’s “investigation” mean the Commissioner’s investigation of the Council’s complaint, pursuant to section 50, relating to the Council’s response to the Request. Introduction

3. This was an appeal against the Decision Notice, which (in summary) decided that the Council was entitled to rely on section 40(2) (personal information) to withhold the names and signatures of the Councillors from its disclosure of the Requested Information. Background to the Appeal

4. The background to the appeal is as follows. To provide some context, it may be helpful to quote from paragraphs 4 to 7 (inclusive) of the Decision Notice: “ The ability to “call in” decisions developed within Northern Ireland councils is a mechanism by which council decisions can be reconsidered or reviewed before they are implemented. It is designed to ensure accountability and safeguard minority interests, promoting democratic decision-making. The process is provided for under s41 of the Local Government Act (Northern Ireland) 2014 (LGA 2014). The Council received a Call-In requisition under s41(1)(b) of the LGA 2014 to ‘amend its Flag Policy to include the flying of the Union flag at every war memorial all year round as agreed at a Council meeting on the 20 December 2023’. The Council believed that the Call-In requisition met the requirements, accepted it, and sought legal advice on the requisition as required by s41(1)(b) of the LGA 2014. The Commissioner is aware that Call-In requisitions are not normally made public but discussed ‘in confidence’ especially when legal advice has been sought (Schedule 6 to the LGA 2014) refers. This item was listed to be discussed in confidence under s43(2) and Schedule 6 to the LGA 2014 at the Council meeting on the 24 April 2024. At this meeting the Council agreed to accept a proposal by Councillors that the Call-In requisition should be discussed in public session as opposed to committee (in confidence). The Chair explicitly stated at the meeting that the legal advice should not be referenced. The legal advice directly addressed the points raised in the Call-In requisition. The Call-In requisition received the valid number of votes required to overturn the previous Council decision. The decision was subsequently the subject of a Judicial Review and during this process Council accepted that the Call-In requisition was out of time when submitted and therefore became invalid. The initial Council decision of the 20 December 2023 was reinstated. ”. The Request

5. On 25 April 2024, the Appellant contacted the Council and requested information in the following terms: “ Please provide a full copy of the call-in requisition lodged by the Alliance Party and SDLP in relation to the matter of flying the Union flag 365 days a year from war memorials across the Borough ”.

6. The Council responded on 28 May 2024. It stated that it was refusing to provide the Requested Information, citing section 41 (information provided in confidence).

7. The Appellant contacted the Council on 12 June 2024, requesting an internal review. The Council responded on 28 June 2024 The D ecision Notice erroneously recorded this as 27 June

2024. , upholding its previous decision.

8. On 15 July 2024, the Appellant complained to the Commissioner about the Council’s response to the Request.

9. During the course of the Commissioner’s investigation, it was identified that the Council had been relying on section 41 to protect information which was in the public domain at the time of the Request. The Council therefore withdrew its reliance on section 41 and instead sought to rely on section 40(2) in order to withhold the names and signatures of the Councillors.

10. The Commissioner subsequently issued the Decision Notice. The Decision Notice

11. The Commissioner considered that the scope of his investigation was to establish whether the Council was entitled to rely on section 40(2) in respect of the Withheld Information.

12. In the Decision Notice, the Commissioner concluded (in summary) that: a. the Withheld Information comprised the personal data of the Councillors; b. the Legitimate Interests Basis was the applicable basis to consider for the processing of their personal data; c. in respect of the Legitimate Interests Test, the Appellant was pursuing a legitimate interest in seeking the Requested Information and that disclosure of the personal data would be necessary to satisfy that legitimate interest, but (in respect of the Balancing Test) the Councillors had a reasonable expectation that their personal data would not be disclosed and therefore that disclosure of it would not be lawful; d. accordingly, the Council was entitled to rely on section 40(2) to refuse to disclose the Withheld Information.

13. The Decision Notice did not require the Council to take any further steps. The appeal The grounds of appeal

14. The Appellant’s grounds of appeal related to two issues which, in summary, were as follows: a. The Commissioner’s investigation should have considered whether the Council was entitled to rely on section 41 in respect of the Requested Information, as the Appellant’s complaint to the Commissioner was to determine whether the initial reliance on section 41 was lawful. However, the Decision Notice did not address the lawfulness of the Council’s reliance on section 41. We refer to this below as “Ground 1”. b. The Commissioner was wrong to find in the Decision Notice that the Council could reply on section 40(2) in respect of the Withheld Information. In particular, the Commissioner erred in concluding, with regard to the Balancing Test, that protecting the rights and freedoms of the Councillors, as elected representatives, outweighed the public need to know their identity. We refer to this below as “Ground 2”.

15. We comment below on the material aspects of the Appellant’s grounds of appeal, as well as other relevant submissions of his in respect of the appeal. The Tribunal’s powers and role

16. The powers of the Tribunal in determining this appeal are set out in section 58, 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 (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. ”.

17. In summary, therefore, the Tribunal’s remit for the purposes of this appeal was to consider whether the Decision Notice was in accordance with the law. In reaching its decision, the Tribunal may review any findings of fact on which the Decision Notice was based and the Tribunal may come to a different decision regarding those facts. Essentially, the Tribunal is empowered to undertake a ‘full merits review’ of the appeal before it (so far as the Decision Notice is concerned). Mode of hearing

18. The proceedings were held by the cloud video platform. The Tribunal Panel, the Appellant and Mr McAteer (for the Council) joined remotely. The Tribunal was satisfied that it was fair and just to conduct the hearing in this way. The Commissioner did not appear and was not represented.

19. There were no interruptions of note during the hearing. The evidence and submissions

20. The Tribunal read and took account of an open bundle of evidence and pleadings, as well as separate written skeleton arguments from the Appellant and the Council. We also had a copy of the judgment in the case of Raymond McCord v The Legal Services Agency For Northern Ireland [2024] NIKB 66, which was provided by the Appellant.

21. During the hearing, the Tribunal held a closed session where we explored with Mr McAteer whether the Councillors were identifiable without disclosure of the Withheld Information and issues regarding the views which the Councillors had provided about the potential disclosure of the Withheld Information. A gist of the closed session was provided to the Appellant at the resumed open hearing.

22. We heard oral submissions from the Appellant and from Mr McAteer on behalf of the Council.

23. All of the contents of the bundle and the parties’ submissions (including the submissions of the Appellant and Mr McAteer during the hearing) were taken into account, even if not directly referred to in this decision. The relevant statutory framework We acknowledge the Practice Direction dated 4 June 2024 ( https://www.judiciary.uk/guidance-and-resources/practice-direction-from-the-senior-president-of-tribunals-reasons-for-decisions/ ) and particularly paragraph 9, which refers to the First-tier Tribunal not needing to specifically refer to relevant authorities. We include references to the applicable legislative framework, to provide relevant context, but (apart from the reference to the Legitimate Interests Test) have accordingly not referred to the applicable case law. and legal principles General principles

24. Section 1(1) provides individuals with a general right of access to information held by public authorities. It provides: “ Any person making a request for information to a public authority is entitled— (a) to be informed in writing by the public authority whether it holds information of the description specified in the request, and (b) if that is the case, to have that information communicated to him. ”.

25. In essence, under section 1(1), a person who has requested information from a public authority is entitled to be informed in writing whether it holds that information. If the public authority does hold the requested information, that person is entitled to have that information communicated to them. However, those entitlements are subject to the other provisions of FOIA, including some exemptions and qualifications which may apply even if the requested information is held by the public authority. Section 1(2) provides: “ Subsection (1) has effect subject to the following provisions of this section and to the provisions of sections 2, 9, 12 and 14. ”.

26. Accordingly, section 1(1) does not provide an unconditional right to be told whether or not a public authority holds any information, nor an unconditional right of access to any information which a public authority does hold. The rights contained in that section are subject to certain other provisions of FOIA, including section 2.

27. Section 2(2) addresses potential exemptions to the Duty to Disclose. That section provides: “ In respect of any information which is exempt information by virtue of any provision of Part II, section 1(1)(b) does not apply if or to the extent that— (a) the information is exempt information by virtue of a provision conferring absolute exemption, or (b) in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information. ”.

28. The effect of the above is that some exemptions which are set out in Part II of FOIA are absolute and some are subject to the Public Interest Test. Section 2(3) explicitly lists which of those exemptions are absolute (and, pursuant to that section, no other exclusions are absolute). Section 40(2) is included in that list, so far as relating to cases where the first condition referred to in that section is satisfied.

29. Accordingly, in summary, the exemption to the Duty to Disclose in section 40(2) is an absolute exemption only in cases where that first condition is satisfied, otherwise the exemption is subject to the Public Interest Test. Section 40 – personal information

30. So far as is relevant for the purposes of the appeal, section 40 provides: “… (2) Any information to which a request for information relates is also exempt information if— (a) it constitutes personal data which does not fall within subsection (1), and (b) the first, second or third condition below is satisfied. (3A) The first condition is that the disclosure of the information to a member of the public otherwise than under this Act — (a) would contravene any of the data protection principles… ”.

31. Section 40(7) sets out applicable definitions for the purposes of section 40, by reference to other legislation, the applicable parts of which are as follows: a. Section 3(2) of the DPA defines “personal data” as “ any information relating to an identified or identifiable living individual ”. The “processing” of such information includes “ disclosure by transmission, dissemination or otherwise making available ” ( section 3(4) (d) of the DPA) and so includes disclosure under FOIA. b. The “data protection principles” are those set out in Article 5(1) and section 34(1) of the DPA. c. The first data protection principle, in Article 5(1)(a), is that personal data shall be: “ processed lawfully, fairly and in a transparent manner in relation to the data subject ”. d. A “data subject” is defined in section 3 of the DPA and means “ the identified or identifiable living individual to whom personal data relates ”.

32. To be lawful, the processing must meet one of the bases for lawful processing set out in Article 6(1). One such basis is where “ processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child ” (Article 6(1)(f)).

33. Article 6(1) goes on to include an exception to the Legitimate Interests Basis, stating that it does not apply to processing carried out by public authorities in the performance of their tasks. However, section 40(8) provides that such exception is to be omitted for the purposes of section 40, meaning that the Legitimate Interests Basis can be taken into account in determining whether the first data protection principle would be contravened by the disclosure of information by a public authority under FOIA.

34. Translating the language of the Legitimate Interests Basis to the context of the appeal: a. the disclosure of the Withheld Information would be ‘processing’; b. the Appellant is the ‘third party’; and c. the Councillors (as the individuals who are the subject of the Withheld Information) are the ‘data subjects’. The Legitimate Interests Test

35. The Legitimate Interests Basis is the only basis for lawful processing listed in Article 6(1) which contains a built-in balance between the rights of a data subject and the need to process the personal data in question. There is a test which must be undertaken in order to determine whether or not the Legitimate Interests Basis can apply in any relevant scenario. This test involves consideration of three questions, as set out by Lady Hale in the Supreme Court’s judgment in the case of South Lanarkshire Council v Scottish Information Commissioner [2013] UKS C 55, paragraph 18 : “(i) Is the data controller or 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? ”.

36. The wording of question (iii) is taken from the Data Protection Act 1998 , which has been superseded by the DPA and the UK GDPR. Accordingly, that question should now reflect the wording used in the UK GDPR such that the third question should now be: ‘Are those interests overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data?’. This last limb of the Legitimate Interests Test specifically addresses the balance between the rights of a data subject and the need to process the personal data in question.

37. It may be helpful to make it clear that the relevant test here (the Legitimate Interests Test) is different from the Public Interest Test; the Legitimate Interests Test applies only in respect of the assessment of the lawfulness of processing of personal data for the purposes of the Legitimate Interests Basis.

38. The question in the first limb of the Legitimate Interests Test must be satisfied before the second limb can be considered. Likewise, the question in the second limb of the Legitimate Interests Test must be satisfied before the third limb (the Balancing Test) can be considered.

39. For the purposes of the second limb of the Legitimate Interests Test, case law has established that the term “necessary” means something which is more than desirable but less than indispensable or absolute necessity. Therefore the test is one of “reasonable necessity”. The test of reasonable necessity itself involves the consideration of alternative measures – consequently, the relevant processing of the personal data in question is not necessary if the legitimate interest being pursued could be achieved by something less (so the processing must be the “least restrictive” means of achieving the legitimate interest in question).

40. Regarding the Balancing Test, when considering the potential disclosure of personal data under FOIA, case law has established that the guiding principle is the protection of privacy with respect to the processing of personal data. However, all of the circumstances of the case need to be taken into account in determining whether or not the legitimate interests being pursued (in the second limb of the Legitimate Interests Test) are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data. Discussion and findings Preliminary points

41. We start by noting that the positions of both the Council and the Commissioner were largely aligned, with the Commissioner having generally come to his conclusions in the Decision Notice for the same reasons as were provided by the Council during the Commissioner’s investigation (and which were also relied on by the Council in respect of the appeal). Also, in his response to the appeal, the Commissioner generally relied on his position in the Decision Notice and the submissions of the Council provided during the course of his investigation.

42. Consequently, partly for convenience and partly because of the Council’s representation in person at the hearing, the remainder of this decision generally refers only to the position or views of the Council, but this should be taken as including reference to the Commissioner’s position or views to the extent applicable - and no disrespect to the Commissioner is intended by this approach. The scope of the appeal

43. We consider that it is important to stress the scope of the appeal.

44. As we noted in paragraph 16 (and summarised in paragraph 17), the scope of the Tribunal’s jurisdiction relates to the lawfulness of the Decision Notice. In particular, the main issue which we needed to determine was whether the Decision Notice was correct to conclude that the Council was entitled to rely on section 40(2) to refuse to disclose the Withheld Information . Any other issues are beyond the Tribunal’s powers to determine and fall outside of the scope of the appeal.

45. Accordingly, the appeal was not about call-in requisitions under the LGA, the lawfulness of the Call-in Requisition itself, the lawfulness or the merits of the Council’s approach to call-in requisitions generally, or any related matters. We have no jurisdiction to consider or determine any such issues. Ground 1

46. During the hearing, the Appellant stated that he no longer wished to pursue Ground 1 in respect of the appeal. We consider that it may nevertheless be helpful if we set out some brief observations regarding Ground 1.

47. The Appellant considered, in essence, that the Commissioner had “misdirected” himself by not considering whether ‘call-in’ requestion forms attract a duty of confidence for the purpose of section 41. This was on the basis that section 41 was relied on by the Council in refusing the Request, and the Commissioner should have addressed the lawfulness of that in the Decision Notice rather than accepting the Council's reliance on section 40(2).

48. As we have noted, the potential application of section 40(2) was not relied on by the Council in its response to the Request (including in the outcome of its internal review). However, case law has established that a public authority is entitled to rely on new exemptions even if those exemptions have not been raised by the public authority at an earlier stage. In this case, it was therefore permissible for the Council to raise the potential application of section 40(2) during the Commissioner’s investigation.

49. Moreover, as we have also noted, the Council withdrew its reliance on section 41 during the Commissioner’s investigation. The Requested Information was disclosed, save for the Withheld Information. Therefore, as the Council no longer asserted that the Call-In Requisition was held subject to a duty of confidence for the purposes of section 41, the Commissioner did not consider that issue in his investigation and made no determination of it in the Decision Notice.

50. As the Commissioner made no finding in the Decision Notice regarding section 41, that was not an issue which was open to the Appellant to appeal, having regard to the Tribunal’s jurisdiction we referred to in paragraphs 16 and 17 .

51. Accordingly, we consider that there would have been no basis for the appeal to be upheld in respect of Ground 1. Ground 2

52. The essential issue which the Tribunal therefore needed to determine in the appeal was Ground 2 – whether the Commissioner was correct to determine in the Decision Notice that the Council was entitled to rely on section 40(2) in respect of the Withheld Information.

53. The Appellant stated that he was not seeking disclosure of the Councillors’ signatures, but only their names. Notwithstanding that, we refer to all of the Withheld Information in our discussions below. Whether section 40(2) was engaged

54. There was no dispute between the parties in respect of the Commissioner’s findings in the Decision Notice that the Withheld Information comprised the personal data of the Councillors, that the Legitimate Interests Basis applied, and regarding the first two limbs of the Legitimate Interests Test.

55. It was also common ground between the parties that the core issue to be determined in the appeal in respect of Ground 2 was that of the Balancing Test. Our decision therefore focuses only on that issue.

56. Therefore, the issue before us in respect of Ground 2 was whether the Commissioner was correct to conclude, in paragraph 53 of the Decision Notice, that there was insufficient legitimate interest to outweigh the Councillors’ fundamental rights and freedoms such that there was no lawful basis for processing their personal data under Article 6(1) - and accordingly that disclosure of the Withheld Information would not be lawful.

57. As we have noted, the ‘processing’ of personal data includes disclosure under FOIA. The Decision Notice found that disclosure of the Withheld Information would contravene the first data protection principle requiring the Councillors’ personal data to be processed lawfully, fairly and in a transparent manner. The main premise in support of that finding was that the Councillors have a reasonable expectation of privacy in respect of the Withheld Information. In particular, this was because (as reflected in paragraphs 51 and 52 of the Decision Notice): a. it was considered reasonable for the Councillors to expect the Council to protect their identities when asked to do so, especially if there is a potential for harm or danger if their identities were disclosed; and b. the Councillors had clearly stated their concerns to the Council over the disclosure of their identity.

58. The Appellant considered that the Commissioner was wrong to decide that protecting the rights of the Councillors regarding their personal data outweighed the necessity that the public know the identity of elected decision makers. The Appellant contended, in essence, that it was incompatible with the principles of democracy.

59. The Appellant submitted that those in an elected office hold powers to be exercised on behalf of the public. In the current instance (regarding the exercise of the Call-In Requisition), the Appellant stated that the power exercised was one which allows a minority of elected members to override the democratic wishes of the majority. As this was a public power, contained in statute, he argued that those who exercise it are doing so pursuant to their functions as elected representatives. He contended that there is no basis upon which the exercise of public functions, particularly those with “significant consequences” such as in the case of the Call-In Requisition, should be exercised and concealed from the public.

60. The Decision Notice set out that the Commissioner had taken into account the following factors in considering the Balancing Test: a. the potential harm or distress that disclosure may cause; b. whether the information is already in the public domain; c. whether the information is already known to some individuals; d. whether the individual expressed concern to the disclosure; and e. the reasonable expectations of the individual.

61. Those five factors were also referred to by the Council in correspondence with the Council regarding his investigation. We consider that it was appropriate to take those factors into account in assessing the Balancing Test. The Appellant did not dispute the relevance of those factors, but he challenged the specific points raised in respect of them. We summarise below the position of the parties on the material aspects of those five factors.

62. The main issues in the appeal related to the first and last of those five factors, as we have listed them (namely the potential harm or distress of disclosure of the Withheld Information and the reasonable expectations of the Councillors). We therefore briefly address the other factors first.

63. Regarding the question of whether the Withheld Information is already in the public domain, the Council’s position was that the Councillors had not publicised that they were signatories to the Call-In Requisition , that the Council itself had not disclosed the Withheld Information to anyone and that it was not otherwise in the public domain.

64. The Appellant averred that the Councillors (which he referred to as “the signatories to the ‘call in’ requisition”) had “self-publicised” that they were signatories to the Call-In Requisition and that they had “set out their position” in press statements, and via contributions in public sessions of the Council.

65. There was no evidence before us that the Withheld Information had been published, either by the Councillors (as averred by the Appellant) or by the Council itself. However, the Appellant submitted that it is in the public domain that the political parties which submitted the Call-In Requisition were SDLP and Alliance. The Appellant stated that there is only one SDLP councillor (who he named) and therefore that it was publicly known that that that one councillor had signed the Call-In Requisition .

66. The Council submitted that, although there is only one SDLP councillor, there are twelve Alliance councillors and therefore it is not possible to identify the Councillors by reference to the parties involved. It also stated that more councillors voted against the motion than just those who had submitted the Call-In Requisition and therefore that it was also not possible to identify who submitted the Call-In Requisition by reference to the voting.

67. Based on the evidence before us, we find that the Withheld Information was not in the public domain. Indeed, if the identities of the councillors who were signatories to the Call-In Requisition were publicly known then there would be no basis for the Request (or the appeal).

68. In any event, even if the identity of one of the Councillors was ascertainable (and aside from the fact that there are other Councillors), this would only be relevant to two of the five factors referred to in paragraph 60 and so would not be conclusive regarding the disclosure of the personal data of that one Councillor. The relevant issue we needed to determine was the lawfulness of the processing of the Councillors’ personal data by the Council (by way of potential disclosure of the Withheld Information under FOIA in response to the Request).

69. Regarding the question of whether the Withheld Information is already known to some individuals, the Council stated that other councillors are aware of the names of the Councillors, as the papers regarding the Call-In Requisition were provided to all of them. The Council also stated that all councillors were, however, reminded during the meeting in question that this item was to be treated in confidence and subject to the Council’s Code of Conduct (see paragraph 85). There was no evidence to the contrary, and we make findings of find accordingly.

70. Regarding the question of whether the Councillors expressed concern to the disclosure of the Withheld Information, the Council provided a document setting out the Councillors’ collective submissions regarding the potential disclosure of their personal data. We address the Councillors’ statement further below but, in summary, the Council’s position was that the Councillors had twice stated that they were opposed to the release of their identities from a safety perspective.

71. The Council accepted that elected representatives hold public office and that their actions accordingly come under scrutiny to some extent. It acknowledged that when councillors make representations on behalf of the public, there is an expectation that they do so publicly, transparently and in accordance with legislation. However, the Council submitted that there are sensitive topics in Northern Ireland politics which make it more problematic for elected representatives, especially when these representatives are in a minority, and that Council legislation in Northern Ireland has been adapted to help give minorities in Council a stronger voice.

72. The Council further submitted that the flying of flags in Northern Ireland is an extremely sensitive topic. It stated that the Irish Tricolour is seen as the prevailing flag in areas where nationalist parties have a majority and the British Union Jack is seen as the prevailing flag in areas with a unionist majority.

73. The Council stated that widespread riots took place across Northern Ireland in 2012/2013 which were linked to the issue of flag flying and that members of the Alliance party were targeted during that period. The Council’s position was that those riots are still fresh in people’s memories and it referred us to the Councillors’ statement as to why their identities should not be disclosed.

74. The Councillors stated that they did not consent to their personal data being released. They referred to the Council’s Health and Safety policies which they considered would be incompatible with the release of their personal data. They also cited the incidents of attacks during the riots in 2012/2013. They stated that attacks occurred within the area which now forms the borough of Ards and North Down (the Council’s borough) and took place at the home of two councillors who had a 17-month-old daughter and on another’s house and car. Included in the bundle were extracts of news articles relating to these attacks and regarding the riots and flag protests generally.

75. The Councillors’ view was that releasing their personal details would enable them to be targeted in a similar vein to the attacks in 2012/2013 and they referred to “ the distress that previous targeting of Councillors in this area received during an earlier flag related matter ”.

76. The Appellant did not accept that harm or distress to the Councillors might be caused by disclosure of the Withheld Information. He considered that the Councillors had simply referred to the flag protests which took place over 12 years ago and that there was no connection between those protests and the present circumstances. The Appellant submitted that no evidence had been provided to suggest there was any risk to the safety of any of the Councillors should the Withheld Information be disclosed. He considered that the Councillors’ views about the risk of harm were based only on speculation.

77. The Councillors also referred to comments made on social media (screenshots of which were in the bundle) about ‘naming and shaming’ the signatories of the Call-In Requisition . The Council submitted that the Councillors were concerned about what was meant by them being ‘shamed’, in the sense of conduct which might be levelled at them if they are named.

78. The Appellant’s view was that (although the language used was not desirable) the social media comments were a legitimate part of robust political discourse and that the Councillors should expect to be subject to robust social media criticism, especially in the context of the powers exercised in respect of the Call-In Requisition . The Appellant submitted that the social media comments regarding ‘naming and shaming’ did not represent any threat of violence or harm to the Councillors.

79. The Appellant referred us to some case law in support of his views that those elected to public office should be expected to have a robust and tolerant attitude to scrutiny and criticism. We consider that the cases were not of direct relevance to the issues before us, but we accept the general premise that publicly elected individuals should be prepared to accept a degree of scrutiny and criticism.

80. We also consider that there is some force behind the Appellant’s arguments regarding the principles of transparency and accountability regarding elected officials. However, the relevant question in the appeal related to the Balancing Test and whether the legitimate interest in disclosing the Withheld Information is overridden by the interests or fundamental rights and freedoms of the Councillors regarding protection of their personal data. In that regard, we consider that the evidence on this issue was more valuable than the submissions of the parties.

81. As we have noted, the Councillors have not consented to the disclosure of the Withheld Information. In other words, they have not consented to being identified as signatories to the Call-In Requisition . They have also expressed concerns, as we have outlined, regarding the potential disclosure of their identity for the reasons we have referred to.

82. In our view, it is not for us determine the merits of the Councillors’ concerns regarding the potential disclosure of their personal data, including the rationality of those concerns. Whilst the Appellant plainly considers that the previous riots were too long ago and should not have any bearing on the Councillors’ current concerns, the Councillors nevertheless have those concerns and that is what we must take into account.

83. The Appellant contended that, in essence, it would be wrong to allow elected representatives to rely upon previous unrelated acts of violence which arose out of a similar subject matter, in order to withhold from the public how they exercised their public powers. The Appellant submitted that this was contrary to the established principles of the democratic system of the United Kingdom. He stated that the Council and the Commissioner had not been able to cite any authority which had held that an elected politician should be entitled to have their vote and/or exercise of a public power kept secret.

84. However, the Council (and the Councillors) had referred to provisions of the LGA which provide for some aspects of Council business to be kept confidential (essentially meaning that some Council documents would be exempt from public access). The descriptions of potentially exempt information in Schedule 6 of the LGA include “information relating to any individual” and “information which is likely to reveal the identity of an individual”.

85. The Council submitted that the Council’s custom and practice is that ‘c all-in’ requisitions are not published but are dealt with in confidence and that the Chief Executive of the Council had stated that the Call-In Requisition , whilst discussed in public, was to be treated as confidential and subject to the Council’s Code of Conduct.

86. The Appellant disputed that the LGA allowed for the identities of those exercising ‘call-in’ requisitions to be kept anonymous. He considered that the Council’s approach to the confidentiality of ‘call-in’ requisitions was improper. We were also referred to judicial review proceedings relating to the lawfulness of the Call-In Requisition (which were referred to in the Decision Notice, as set out in paragraph 4).

87. The Appellant also referred us to a decision of the First-tier Tribunal in 2024 pursuant to which, he stated, Belfast City Council was directed to release a call-in requisition, including the names of councillors. However, the Appellant was mistaken in stating that that case required disclosure of councillors’ names. Rather, that decision directed disclosure of the relevant information “ subject to the redaction of personal information of individuals named in the documents ”. In any event, other First-Tier Tribunal decisions are not binding on us and, more importantly, each such decision turns on its facts.

88. We should also briefly note that we found the Raymond McCord case (see paragraph 20) also to have no bearing on our deliberations, as the subject matter and circumstances of that case differed from the issues before us in the appeal.

89. In the current instance, we consider that it is immaterial whether the Council’s custom and practice of dealing with ‘call-in’ requisitions confidentially is improper or lawful. That is not for us to determine, having regard to the scope of the appeal which we outlined in paragraphs 16 and 17 . However, we find that this is relevant to the reasonable expectations of the Councillors. As with our comments about the Councillors’ concerns regarding potential disclosure of their personal data, we consider that it is not for us determine whether it was right or wrong that the Councillors had expectations of privacy. Rather, we simply needed to determine if they had such expectations. We find that they did, having regard to their statements referencing the confidentiality of proceedings and pursuant to which they expressly stated that they did not consent to their identity being disclosed. Their expressions of concern about potential harm regarding disclosure of their identities also, in our view, reflect an expectation of privacy.

90. The Appellant stated that councillors exercising their voting rights as elected officials do not do so as individuals acting in a personal capacity. We accept that principle, b ut councillors and other elected representatives who exercise powers pursuant to their office nevertheless still have rights as individuals pursuant to the DPA and the GDPR (and, indeed, this is what section 40(2) potentially protects).

91. Summarising all of the above, the Balancing Test involves a balancing exercise to be undertaken regarding the rights of data subjects (in this case, the Councillors) and the need to process the personal data in question (in this case, the Withheld Information). As noted, we find that the Councillors have objected to the disclosure of the Withheld Information, have expectations of privacy and have expressed concerns about potential harm which may occur if the Withheld Information was disclosed. In all of the circumstances, including taking the Appellant’s arguments into account, we find that the Balancing Test favours protecting the interests or fundamental rights and freedoms of the Councillors.

92. We therefore find that processing of the Councillors’ personal data by way of disclosure of the Withheld Information would not be lawful in accordance with the Legitimate Interests Test (and specifically with regard to the Balancing Test) and consequently that the first condition in section 40(2) is satisfied.

93. For all of the above reasons, we find that section 40(2) is engaged in respect of the Withheld Information. As we have also found that the first condition in section 40(2) is satisfied, the exemption in that section is absolute and there is no need for us to consider the Public Interest Test.

94. We would conclude by observing that the Appellant expressed concerns that a conclusion that the Balancing Test favoured the individual rights and freedoms of the Councillors invited a situation whereby a minority of elected representatives could thwart and overturn the decision of the democratic majority but cannot be held politically and publicly accountable for their exercise of this power, because their identities can be concealed. In other words, the Appellant was concerned that our decision would somehow set a precedent and have potential implications for publicly elected representatives being able to claim anonymity regarding their decisions made in an official capacity.

95. However, each decision of a public authority (and the Commissioner) regarding the disclosure or non-disclosure of information following a request under FOIA is dependent on the facts and would need to be determined in the circumstances of each case. Likewise, previous decisions of the First-tier Tribunal are not binding on another First-tier Tribunal. We have reached our determinations based on the particular circumstances of this case. Final conclusions

96. For all of the reasons we have given, we find that the Decision Notice was correct to conclude that the Council was entitled to rely on section 40(2) to refuse to disclose the Withheld Information.

97. We therefore dismiss the appeal.