Nicholas James Dancer v The Information Commissioner & Anor

Background & Chronology

1. This is an appeal against the Decision Notice of the Information Commissioner (“the Commissioner”), dated 4 th March 2025 and referenced IC-328426-W5Z6.

2. On 25 th March 2024, the Appellant wrote to the Department for Business and Trade (“DBT”) and requested information in the following terms: “This FOI all relates to my Employment Tribunal. The case reference number is: 201837/2023 - the jurisdiction is “London Central”. The case name is “Mr N Dancer v The Secretary of State for Business and Trade”. Financial Questions I have already requested a review of the GLD’s FOI response. I am not convinced by the figures they have produced, for example [named individual] fees appear to be quite low for 7.5 days of hearing, as well as preparation time. I have therefore asked for invoices. I would be grateful if you could assist in supplying the below information: 1.Total amount spent by the GLD in preparing the case up to an including 15 th February 2024, including an itemisation. Please supply supporting evidence. 2.Total amount spent on Barrister representation [named individual] with invoices, including preparation time, Preliminary Hearing and Final Hearing appearances. 3.Total amount spent on DBT resources to prepare the case (Witness Time, liaising/instructing with GLD etc) Rationale and Accountability Secondly, as all evidence has now been heard by the Employment Tribunal and we are simply awaiting the Tribunal Decision, I do not accept GLD’s argument relating to legal advice privilege and litigation privilege. I am sure the Information Commissioner will agree that it is simply not possible to prejudice the outcome of this case as it has already been heard, and that there is now greater weight in favor of the factors for disclosure. I ask you to keep this point in mind when answering the below questions: 4.What is the name of the person who is giving senior sign-off for public money to be spent in this way? Who is the most senior person approving the expenditure?

5. What are the channels of accountability? The Secretary of State is responsible for the actions taken by the Department – please break this down further in relation to my matter. Assumably Ms [named individual] is not accountable for Legal Proceedings?

6. Have any submissions been provided to the secretary of State, Junior Ministers or Departmental non-Executive Directors regarding myself or this legal matter? As these are about me personally, I would like to see them please.

7. If no such submissions have been sent and senior figures within the department remain unaware of the case, please can you explain why?

8. Please can you provide the rationale for defending this case, and rejecting numerous approaches from myself for amicable settlement (including Judicial Mediation)? What weight was given to the unique circumstances of this case?

9. I understand that Rt Hon Kemi Badenoch MP remains unaware of the case, its background and details – please confirm?

10. Please share details of any exchanges between DBT regarding myself with the following parties: the Cabinet Office, Ministry of Defence, Rt Hon Grant Schapps MP and his offices, as well as Rt Hon Kemi Badenoch MP’s Parliamentary office.”

3. The DBT responded to this request on 24 th April 2025, stating that section 12(1) of the Freedom of Information Act 2000 (“FOIA”) applied to point 3 alone, and that it was not obliged to comply with that aspect of the request as the cost of meeting the request would exceed the cost limit for a FOIA request.

4. The DBT went on to state that points 6 and 10 of the request comprise of the personal data of the Appellant and is exempt information under section 40(1). The response explained that such requests for information fall to be dealt with under data protection legislation, and therefore the request would be treated as a Data Subject Access Request (“SAR”) and would be referred to another team who would contact him about this separately. The Internal Review and Response

5. The Appellant requested an internal review of the DBT’s decision not to disclose the requested information on 24 th April 2024. He explained that he no longer required the information sought in points 1 and 2 of his request, as invoices provided by the Government Legal Department had sufficiently answered their questions. The Appellant went on to state that: “In the interests of getting a response to questions 4 to 10, I am willing to drop question 3 from this request. Answering these questions cannot possibly exceed £600. Please can you proceed with providing a timely response to questions 4 to 10?”

6. Following an internal review, the DBT wrote to the Appellant on 24 th May 2024, stating as follows: “On review I can confirm that Question 3 (which DBT confirmed in its FOIA response would alone exceed the cost threshold, and you have no in your request for an internal review, confirmed you wish to withdraw Question 3), Question 4 and Question 5 fall to be treated as valid requests under FOIA. Question 6 and 10 are SAR requests and are being handled by the DBT SAR Team. Question 7, 8 and 9 are not valid FOIA questions, and therefore DBT will not accept these under FOIA.” …This now leaves Question 4 and Question 5 of your request to be addressed.”

7. The DBT relied upon the exemption provided by section 40(2) FOIA to refuse the request in Question 4 on the basis that revealing this information (the names of individuals) would breach the terms of data protection legislation. In relation to Question 5, the DBT informed the Appellant that it does not hold recorded information on what channels of accountability are in the context of his request. In providing this review outcome, the DBT provided brief explanations (B76 of the OPEN Bundle) as to why they were relying upon the exemption contained within section 40(2) FOIA, and why it did not hold the requested information sought in Question 5. The DBT explained that the second part to Question 5 is not a valid FOIA request. Complaint to the Commissioner and Decision Notice

8. The Appellant made a complaint to the Commissioner about the manner in which his request had been handled on 16 th August 2024.

9. In a letter of 6 th December 2024, the Commissioner confirmed that the scope of the investigation would be to determine whether the DBT is entitled to rely upon section 40(2) FOIA as a basis for refusing to provide the information in Question 4, and additionally to explore the searches carried out in relation to the first part of Question 5 (i.e. “ 5. What are the channels of accountability? The Secretary of State is responsible for the actions taken by the Department – please break this down further in relation to my matter.”. It was further explained that Questions 6 and 10 would be exempt under FOIA and that Questions 7 to 9 are not valid FOIA requests. Additionally, it was explained that the second part of Question 5 (i.e. “Assumably Ms [named individual] is not accountable for Legal Proceedings?” ) is not a question which can be responded to, as recorded information would not be held.

10. During the Commissioner’s investigation, the DBT contacted the Appellant on 15 th January 2025 to advise that it was now relying upon an additional exemption, contained within section 38(1) FOIA (Health and Safety), in relation to Question 4 of the Appellant’s request.

11. In the Commissioner’s Decision Notice of 4 th March 2025, he concluded that the DBT was entitled to withhold the name of the individual requested in Question 4 of the Appellant’s information request under section 40(2) FOIA. Additionally, he concluded, on the balance of probabilities, that the information requested in the first part of Question 5 is not held by DBT.

12. In relation to the DBT’s additional reliance upon the exemption contained within section 38(1) FOIA, the Commissioner did not go on to consider this exemption further, stating: “As the Commissioner finds the information should be withheld he has not proceeded to consider the additional exemption at section 38 which DBT applied to the same information.” Appeal to the Tribunal

13. The Appellant submitted his appeal to the Tribunal on 22 nd March 2025. In his reasons for the appeal, the Appellant advances a number of matters and assertions which are not matters for this Tribunal to consider or determine. However, his grounds of appeal are summarised as follows: (a) That information has been improperly withheld under section 40(2) and section 38(1) FOIA. (b) That DBT’s position is an attempt to evade accountability and block his attempts to secure justice. (c) That the Commissioner has failed to give proper regard to the background to the case, and there is a clear public interest in ensuring that he is able to secure justice. (d) That there is a clear public interest in him being able to secure justice for what happened to him. (e) That DBT have spent over £100,000 in relation to these proceedings. (f) That DBT have stated that there is a risk of “harm or distress to members of staff or their children and families” as a result of answering his information requests and releasing the name of the individual making spending decisions in relation to this matter. However, they have failed to clarify what these risks are.

14. In terms of the outcome which the Appellant is seeking, this is stated to be as follows: “That the DBT is compelled to answer his questions in full, including releasing the name of the Civil Servant who made the spending decisions. This will ensure that I can report them for Parliamentary scrutiny, and it gives me a wider path to justice with the rest of the information that will become available.”

15. A second outcome detailed within the Appellant’s Notice of Appeal refers to a reserved decision of the Employment Tribunal, and as such, this is not a matter which this Tribunal has the power or jurisdiction to deal with. The Legal Framework

16. Section 1(1) of FOIA provides for a general right of access to information held by public authorities, which is subject to a series of exemptions. Those exemptions are contained within Part II of FOIA and include section 38 (Health and Safety) and section 40 (Personal Information). Section 38 is a qualified exemption as it is not listed in section 2(3) FOIA, meaning that even if the exemption is found to apply, an assessment of the public interests must then be applied in accordance with section 2(2) FOIA. The relevant provisions are as follows: Section 38 (Health and Safety) “38(1) Information is exempt information if its disclosure under this Act would, or would be likely to – (a) Endanger the physical or mental health of any individual, or (b) Endanger the safety of an individual. (2) The duty to confirm or deny does not arise if, or to the extent that, compliance with section 1(1)(a) would, or would be likely to, have either of the effects mentioned in subsection (1).” Section 2 (Effect of the Exemptions in part 2) “2(2) 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 any 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.” Section 40 (Personal Information) “40(1) Any information to which a request for information relates is exempt information if it constitutes personal data of which the applicant is also the data subject. (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) either 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, or (b) would so if the exemptions in section 24(1) of the Data Protection Act 2018 (manual unstructured data held by public authorities) were disregarded. …”

17. Section 2(3)(fa) FOIA provides that where the first condition contained within section 40 FOIA is satisfied, the exemption is absolute, meaning that if the exemption is found to apply, an assessment of the competing public interests is not required under section 2(2) FOIA.

18. Personal data is defined in section 3(2) of the Data Protection Act 2018 as being “any information relating to an identified or identifiable living individual…” .

19. Article 5 of the UK General Data Protection Regulation (UK GDPR) sets out the data protection principles referred to in section 40(3A)(1) FOIA. Article 5(1) provides that personal data shall be: “(a) processed lawfully, fairly and in a transparent manner in relation to the data subject (‘lawfulness, fairness and transparency’); (b) collected for specified, explicit and legitimate purposes and not further processed in a manner that is incompatible with those purposes; further processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes shall, in accordance with Article 89(1), not be considered to be incompatible with the initial purposes (‘purpose limitation’); (c) adequate, relevant and limited to what is necessary in relation to the purposes for which they are processed (‘data minimisation’); (d) accurate and, where necessary, kept up to date; every reasonable step must be taken to ensure that personal data that are inaccurate, having regard to the purposes for which they are processed, are erased or rectified without delay (‘accuracy’); (e) kept in a form which permits the identification of data subjects for no longer than is necessary for the purposes for which the personal data will be processed; personal data may be stored for longer periods insofar as the personal data will be processed solely for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes in accordance with Article 89(1) subject to implementation of the appropriate technical and organisational measures required by this Regulation in order to safeguard the rights and freedoms of the data subject (‘storage limitation’); (f) processed in a manner that ensures appropriate security of the personal data, including protection against unauthorised or unlawful processing and against accidental loss, destruction or damage, using appropriate technical or organisational measures (‘integrity and confidentiality’).”

20. Article 6(1)(f) of the UK GDPR provides a lawful basis for processing personal data if the 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.”

21. The second sub-paragraph of Article 6(1) of the UK GDPR goes on to state that “Point (f) of the first subparagraph shall not apply to processing carried out by public authorities in the performance of their tasks.” . However, section 40(8) FOIA provides as follows: “In determining for the purposes of this section whether the lawfulness principle of Article 5(1)(a) of the UK GDPR would be contravened by the disclosure of the information, Article 6(1) of the UK GDPR (lawfulness) is to be read as if the second sub-paragraph (disapplying the legitimate interests gateway in relation to public authorities) were omitted.”

22. The effect of these two provisions is that Article 6(1)(f) of the UK GDPR applies to public authorities insofar as it relates to the question of whether disclosure of the information concerned would contravene the data protection principle of lawfulness (Article 5(1)(a) of the UK GDPR) for the purposes of section 40(3A) FOIA.

23. The Supreme Court considered the proper interpretation and application of Article 6(1)(f) of the UK GDPR in South Lanarkshire Council v The Scottish Information Commissioner [2013] UKSC 55 , with Lady Hale identifying that this condition for the lawful processing of personal data required three questions to be answered. These are as follows: (i) Is the data controller or the third party or parties to whom the data are disclosed pursuing a legitimate interest or interests? (Legitimate interest test) . (ii) Is the processing involved necessary for the purposes of those interests? (Necessity test) . (iii) Is the processing unwarranted in this case by reasons of prejudice to the rights and freedoms or legitimate interests of the data subject? (Balancing test) . The Role of the Tribunal

24. The Tribunal has the following powers when determining appeals against the Commissioner’s Decision Notices for the purposes of FOIA: Section 57 FOIA: Appeal against notices… (1) Where a decision notice has been served, the complainant or the public authority may appeal to the Tribunal against the notice. Section 58 FOIA: Determination of appeals (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 the 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. Issues and Evidence

25. The parties had submitted written evidence to the Tribunal in advance of the hearing, comprising of an OPEN bundle of 931 pages (including an index) and a CLOSED bundle of 60 pages. The Appellant had been provided with a ‘gist’ of the CLOSED bundle by the DBT on 24 th October 2025. This set out that the CLOSED bundle contains two parts: (i) Letter from the DBT to the Information Commissioner (17.10.2025) containing the withheld information. (ii) Witness statement of DBT official (26.09.2025), addressing the history of the Appellant’s interactions with the department and the application of sections 38(1) (Health and Safety) and 40 (Personal Information) FOIA exemptions.

26. The Appellant had additionally served a skeleton argument, dated 26 th October 2025, and a number of supplementary materials which he wished the Tribunal to consider. These supplementary materials comprised of 9 pages and were as follows: (i) Appellant’s letter of 29 th June 2023 to the Employment Tribunal concerning what the Appellant has termed the ‘St James’s Park incident’; (ii) Appellant’s letter of 23 rd January 2023, entitled ‘Termination of my Employment with BEIS’; and (iii) Correspondence between the Appellant and the Information Commissioner’s Office, dated 23 rd October 2025.

27. All of these documents have been read and considered by the panel. However, as part of the bundle the panel were provided with a copy of a further Decision Notice of the Commissioner, dated 23 rd September 2025 and referenced IC-372866-Y1N0 (page E651 of the OPEN Bundle). This followed a further request for information being made of the DBT on 19 th January 2025. The Decision Notice was not provided by the Commissioner in that matter until 23 rd September 2025, and the Appellant is yet to submit an appeal to the Tribunal in respect of that published Decision Notice. The present appeal is therefore confined to the Commissioner’s Decision Notice dated 4 th March 2025 and referenced IC-328426-W5Z6.

28. It is noted within the Appellant’s Rule 24 Reply (at paragraph 10 – page A57 of the OPEN bundle) that he suggests that this appeal additionally relates to the Subject Access Requests identified in Questions 6 and 10 of his original information request. Those questions relate to the Appellant’s own personal data, however, and the information concerned is therefore exempt information under section 40(1) FOIA. The exemption is absolute in nature, and those aspects of the Appellant’s request do not form part of this appeal. As set out above, this appeal relates to the Commissioner’s Decision Notice of 4 th March 2025 only.

29. The issues to be determined in this appeal are whether the Commissioner’s Decision Notice was not in accordance with the law, or to the extent that the notice involved an exercise of discretion, that the Commissioner ought to have exercised his discretion differently when deciding: (i) That the section 40(2) FOIA exemption applied to the withheld information relating to Question 4 of the Appellant’s request. (ii) That, on the balance of probabilities, the DBT does not hold recorded information within the scope of the first part of Question 5 of the Appellant’s request.

30. The parties were agreeable to the determination of this appeal on the papers, or in other words, without an oral hearing. We are satisfied, pursuant to Rule 32(1)(b) of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009, that we can properly determine the issues without a hearing. Submissions Submissions advanced on behalf of the Appellant

31. In summary, the Appellant advances the following arguments in support of the requested information being disclosed: (i) That the exemption under section 40(2) FOIA has been improperly applied, and this prevents the individual concerned from being held to account. (ii) That the exemption under section 38(1) has been improperly applied. (iii) That there is a clear public interest in him being able to secure justice for what happened to him. (iv) That his legitimate interests have not been met through the employment tribunal litigation process. (v) There is a significant public interest in disclosing the withheld information in circumstances where the DBT has spent over £100,000 of taxpayers’ money on the employment tribunal proceedings. (vi) The Commissioner should have found it necessary to consider the Health and Safety exemption (section 38(1) FOIA). The information has been improperly withheld under this exemption. (vii) In relation to the exemption under section 38(1) FOIA, there are countervailing public interest considerations to be considered (as per the Appellant’s reply of 18 th May 2025 – at pages A56 to A60 of the OPEN bundle). Submissions advanced on behalf of the Commissioner

32. The Commissioner’s submissions are summarised as follows in relation to the requests contained within Questions 4 and 5 of the Appellant’s request for information: Re: Question 4 (application of section 40(2) FOIA) “4. What is the name of the person who is giving senior sign-off for public money to be spent in this way? Who is the most senior person approving the expenditure?” (i) That there is no public interest test required in relation to the section 40(2) FOIA exemption applied in this instance. There is instead the balancing of the legitimate interests against the rights and freedoms of the data subject, and the Commissioner submits that his decision in respect of this balancing exercise was correct. Disclosure is therefore not necessary and would be unlawful. (ii) That nothing raised by the Appellant’s Grounds of Appeal has tipped the balance in favour of disclosure. (iii) That section 40(2) FOIA was correctly applied. (iv) As the Commissioner found that the information was correctly withheld under section 40(2) FOIA, a decision in relation to the section 38(1) FOIA exemption was not considered further in the Decision Notice, and accordingly, any reliance by the DBT upon section 38(1) FOIA is not subject to appeal. Re: Question 5 (information not held) “5. What are the channels of accountability? The Secretary of State is responsible for the actions taken by the Department – please break this down further in relation to my matter. Assumably Ms [named individual] is not accountable for Legal Proceedings?” (i) That on the balance of probabilities, the requested information was not held by the DBT.

33. The Commissioner additionally submitted that to the extent that the Appellant challenges how he investigated this matter, this is not a valid ground of appeal, and oversight is not within the jurisdiction of the Tribunal, referencing Stuart v Information Commissioner and DWP (EA/2008/0040), where the Tribunal decided, at paragraph 38, that: “the Tribunal is not required to determine the issues of reasonableness or unfairness on the part of the Commissioner…Mr Stuart is complaining about the conduct of the investigation and not the Decision Notice itself, and consequently, the Tribunal has no jurisdiction.” Submissions advanced on behalf of the Department for Business and Trade (DBT)

34. The DBT’s submissions are summarised as follows in relation to the requests contained within Questions 4 and 5 of the Appellant’s request for information: Re: Question 4 (application of section 40(2) FOIA) “4. What is the name of the person who is giving senior sign-off for public money to be spent in this way? Who is the most senior person approving the expenditure?” (i) That disclosure of the individual’s name (Question 4 of the FOIA request) is not necessary to meet the legitimate aim of creating transparency and accountability. (ii) Although there is a general principle of disclosure of the names of senior civil servants, in this case disclosure would be unfair to the individual concerned. That general principle aligns more closely with outward facing roles of civil servants, rather than their internal relations. (iii) Disclosure of the individual’s name would significantly impact the individual’s fundamental rights. (iv) That there is very little wider public interest in the individual’s name being disclosed. (v) The Appellant’s legitimate interests have been met through the litigation process. He received full disclosure of all relevant material as part of the employment tribunal process, as determined by the relevant applicable disclosure process. (vi) The thrust of the request related to the expenditure associated with the employment tribunal claims. Through his FOIA requests, the Appellant knows the amount spent by DBT. DBT has approved the expenditure for the employment tribunal and disclosure adds little, if anything, to the public’s understanding of the matter. There is no need for the Appellant to attribute a name to that expenditure. (vii) There is nothing in the Appellant’s assertion that “since 13 th June 2024, the names of various Senior and non-Senior Civil Servants who have played a formal role in the matter for which these funds have been spent, have had their names put into the public domain via the erroneous Tribunal Decision that I am currently appealing.”. The names of any individuals that have been published in respect of that decision were those involved in the case in the capacity of investigation, decision or appeal managers in relation to the HR attendance management case and conduct against the Appellant. They are wholly separate from any individuals (whether the same or not) that might have been involved in the points raised by the requests. (viii) Whilst a legitimate interest existed, it had already been appropriately and proportionately met, and as such, the general approach to disclosing senior officials’ names did not apply. Disclosure would not be lawful and would breach the data protection principles, meaning that the section 40(2) FOIA exemption applied.

35. In relation to Question 4, the DBT additionally relies upon section 38(1) FOIA (Health and Safety) to withhold the information. The DBT acknowledges that the Commissioner did not find it necessary to consider this additional exemption in his Decision Notice, but nonetheless submitted, should the Tribunal consider it necessary, that there are legitimate safeguarding reasons for relying upon this exemption. In support of this proposition, the DBT relies upon the evidence provided in the CLOSED bundle, and specifically the statement of the unnamed senior civil servant who details that they have concerns for their mental health should their name be disclosed to the Appellant. Additionally, the DBT refers to an incident in which the Appellant is said to have approached a colleague who was also a potential witness in the Appellant’s (then) ongoing Employment Tribunal claims against the DBT, and to have spoken with that person in a manner which she found threatening.

36. In relation to Question 5 of the Appellant’s request, the DBT submits as follows: Re: Question 5 (information not held) “5. What are the channels of accountability? The Secretary of State is responsible for the actions taken by the Department – please break this down further in relation to my matter. Assumably Ms [named individual] is not accountable for Legal Proceedings?” (i) No recorded information is held that would meet this request. (ii) By way of explanation, the DBT provided the following explanation: “[An employment tribunal] claim is allocated to a HR casework advisor and a lawyer from the Government Legal Department. A Deputy Director from the business area is assigned to oversee the case. Details around individual HR cases related to attendance, conduct or performance, and details around any employment tribunal claims are not routinely shared with senior civil servants, who would only have involvement with such cases where necessary (e.g. as a witness). In this case, the Appellant’s line manager fulfilled their duties in line with the DBT’s HR policies, with advice and guidance provided by the HR casework team. As the DBT advised the Commissioner, it would have been a “fruitless exercise” conducting searches for the requested information because the DBT has never held recorded information on the process summarised above. Specifically, recorded information detailing “channels of accountability” was not held in the Appellant’s case or others.” Discussion and Conclusions

37. The original request of 25 th March 2024 was detailed in its nature and related to the Appellant’s case before the Employment Tribunal against his former employer, the DBT. By the time that his complaint was sent to the Commissioner on 16 th August 2024, only questions 4 and 5 remained to be addressed by the Commissioner’s Decision Notice. The reason for the other questions falling away were, firstly, because it was concluded that questions 6 and 10 are requests for the Appellant’s own personal data, which is exempt under section 40(1) FOIA. The panel agrees that these requests are for information which is exempt under this provision, and that the exemption is absolute in nature. Secondly, having been provided with a number of invoices by the DBT, the Appellant then decided to withdraw his requests in relation to questions 1 and 2. Thirdly, when the Appellant submitted his request for a review to the DBT on 25 th April 2025, he confirmed that he now wished to withdraw question 3 in the interests of receiving the information he had asked for in questions 4 to 10.

38. Whilst the Appellant at that stage was still seeking information in relation to questions 4 to 10, as has already been identified above, questions 6 and 10 had already been excluded under section 40(1) FOIA, and the DBT informed him, in their response to the request for a review, that questions 7, 8 and 9 are not valid FOIA requests. The panel shares this view in relation to questions 7, 8 and 9, as these are either requests for opinions or views and would require the DBT to create information to disclose. That, of course, is not a requirement of FOIA, as it only applies to information that a public authority already holds in recorded form at the time of the request.

39. Dealing with Question 4, which is set out below, the question is split into two parts, but both parts are understood to relate to the same individual. The request was withheld by the DBT under section 40(2) FOIA and section 38(1) FOIA, but as the Commissioner subsequently decided that the first condition referred to in section 40(2)(b) FOIA was satisfied and that the absolute exemption contained within section 40(2) applied to the information (see section 2(3)(fa) FOIA), the Commissioner did not see a need to go on to consider whether section 38(1) FOIA additionally applied to the information being sought. No criticism may be placed at the door of the Commissioner in adopting that stance, as once an exemption is determined to apply, particularly when it is an absolute exemption which does not necessitate a further balancing assessment to be carried out under section 2(2) FOIA, there is unlikely to be a justification to expend further, limited resources, in dealing with hypothetical situations. However, the Commissioner’s decision in respect of this conclusion must nonetheless be examined by the Tribunal. “4.What is the name of the person who is giving senior sign-off for public money to be spent in this way? Who is the most senior person approving the expenditure?”

40. On any view of it, the name of the senior civil servant constitutes personal data which does not fall within section 40(1) FOIA, as the name of a data subject is information that relates to and identifies a living individual. Section 40(2)(a) FOIA is therefore satisfied. However, for the information to be exempt under section 40(2) FOIA, subsection (b) requires “either the first, second or third conditions below [to be] satisfied” , and only if the first condition is satisfied will the exemption be absolute in nature (section 2(3)(fa) FOIA).

41. The ‘first condition’ is set out under section 40(3A) FOIA, and states that “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.” . In this instance, the most relevant data protection principle is contained within Article 5(1)(a) of the UK GDPR, which is that “Personal data shall be processed lawfully, fairly and in a transparent manner in relation to the data subject” . In relation to a request for information under FOIA, the personal data in question is processed when it is disclosed in response to the request. Article 5(1)(a) therefore requires that the information may only be disclosed if it would be lawful, fair and transparent to do so.

42. To be lawful, one of the lawful bases listed in Article 6(1) of the UK GDPR must be found to apply to the processing. In this matter, the most applicable lawful basis is that found in Article 6(1)(f) which provides that: “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.”

43. The data subject in this instance is a senior civil servant, and whilst it is recognised by the DBT that there is a general principle of disclosure of the names of senior civil servants, it is submitted by the DBT that it would be unfair, in this instance, to disclose their name. Additionally, it is submitted that the general principle aligns more closely with outward facing roles of civil servants, rather than their internal relations.

44. As Lady Hale identified in South Lanarkshire Council v The Scottish Information Commissioner [2013] UKSC 55 , Article 6(1)(f) requires three questions to be answered before reliance may be placed upon this lawful basis. Firstly, whether a legitimate interest is being pursued in the request for the information (Legitimate Interest Test). Secondly, whether the disclosure of the information is necessary to meet that legitimate interest(s) in question (Necessity Test), and thirdly, whether those interests override the legitimate interest(s) or fundamental rights and freedoms of the data subject (Balancing Test). This three-stage test must therefore be applied to the facts of this case. Is a legitimate interest being pursued by the Appellant in the request for information? (Legitimate Interest Test)

45. In seeking the name of the senior civil servant who is signing off public expenditure in relation to his Employment Tribunal case, the Appellant is clearly pursuing something which concerns the handling of that matter. This particular request followed three earlier requests (Questions 1 to 3), which all related to the sums spent by the DBT on those proceedings, and must be read in the context of those preceding requests. Whilst his interest in the name of this individual is personal in nature, we have reminded ourselves that a wide range of interests may be legitimate interests. These may be an individual’s own interests or the interests of third parties, and it may additionally include commercial interests and wider societal benefits. Such interests may be compelling or trivial, but trivial interests may be more easily overridden in the balancing test.

46. In our view, the Appellant’s desire for openness and transparency does amount to a legitimate interest in this information, though this is his own interest rather than serving any wider public benefit. Is the disclosure necessary to meet that legitimate interest? (Necessity Test)

47. Although in South Lanarkshire Council v The Scottish Information Commissioner, Lady Hale did not see fit to define the term ‘necessary’ out of the need for flexibility, she did go on to comment as follows: “the word “necessary” has to be considered in relation to the proceedings to which it relates. If that processing would involve an interference with the data subject’s right to respect for his private life, then the Austrian Radio case is clear authority for the proposition that the requirements of Article 8(2) of the European Convention on Human Rights must be fulfilled.”

48. Necessary in this context therefore means that the disclosure must be a targeted and proportionate way of meeting a legitimate interest. If there is another or less intrusive way in which to achieve the result being sought, then the pursuit of disclosure via the mechanism of a legitimate interest under Article 6(1)(f) is bound to fail.

49. The panel acknowledges that the Appellant confirmed in his request for a review that he was “satisfied with the responses to questions 1 and 2. The invoices sufficiently answer my questions.” , and that he decided to withdraw Question 3 from his request “in the interests of getting a response to questions 4 to 10” . He had therefore been provided with, and accepted that he had been provided with, information which satisfied Questions 1 and 2 of his original request. Those questions related to the spend by the GLD (Government Legal Services) in defending the Appellant’s Employment Tribunal claim against the DBT and sought to establish how much had been spent on preparing the case and in providing representation by counsel. He had therefore been provided with information which showed how much had been spent on defending the claim. That expenditure was approved by the DBT, and as the Commissioner noted, disclosure of the name of the person who authorised that spending would add very little, if anything, to the public’s understanding of the matter. The panel accepts the submission of the DBT that general principle of disclosure of the names of senior civil servants aligns more closely with outward facing roles, rather than their internal relations. In this instance, the senior civil servant was simply authorising the expenditure on defending the Appellant’s claim against it. This is not something which could be said to have been undertaken as part of an outward facing role.

50. The Appellant was additionally provided with all relevant disclosure as part of the Employment Tribunal process. That disclosure would have been considered and ruled upon by the judge who presided over those proceedings. Whilst we recognise that the Appellant was pursuing a legitimate interest in seeking openness and transparency from the DBT in relation to the funding of the legal proceedings, we consider that having been provided with the financial information he was seeking in Questions 1 and 2, his legitimate interest had been appropriately and proportionately met at that point through the disclosure of the invoices. We therefore conclude that disclosure of the senior civil servant’s name was not necessary to meet the Appellant’s legitimate interest. His legitimate interest has been served by a lesser degree of disclosure.

51. Although the Appellant’s request falls at the stage of the ‘Necessity test’, we nonetheless consider that the disclosure of the senior civil servant’s name in this instance would contravene his fundamental Article 8 rights (Right to Respect for private and family life - European Convention on Human Rights), and that they would have a reasonable expectation that their name would not be disclosed in these particular circumstances, where it would serve only to identify them. The legitimate interest of the Appellant, where it has already been met by a lesser degree of disclosure than that being sought, would not be such as to override the fundamental rights and legitimate interests of the senior civil servant.

52. Our conclusion is therefore that the requirements of Article 6(1)(f) of the UK GDRP are not met and disclosure of the senior civil servant’s name would not be lawful in these circumstances. The information is therefore exempt under section 40(2) FOIA. Given this finding, it is not necessary to go on to consider whether the section 38(1) FOIA exemption applies to the information.

53. We must now consider the request contained within Question 5 of the Appellant’s request for information. This is as follows: “5. What are the channels of accountability? The Secretary of State is responsible for the actions taken by the Department – please break this down further in relation to my matter. Assumably Ms [named individual] is not accountable for Legal Proceedings?”

54. Section 1(1) FOIA provides as follows: “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.”

55. Following his investigation, the Commissioner concluded on the balance of probabilities that the DBT did not hold recorded information within the scope of the first part of Question 5 of the request. Having asked the DBT to provide a full explanation of the searches carried out to determine whether any information was held on the “channels of accountability” in relation to the defence of the Appellant’s claim to the Employment Tribunal, the DBT informed the Commissioner, by reference to the explanation which is set out at paragraph 36 above and is replicated below for convenience, that they did not hold the information being sought. “[An employment tribunal] claim is allocated to a HR casework advisor and a lawyer from the Government Legal Department. A Deputy Director from the business area is assigned to oversee the case. Details around individual HR cases related to attendance, conduct or performance, and details around any employment tribunal claims are not routinely shared with senior civil servants, who would only have involvement with such cases where necessary (e.g. as a witness). In this case, the Appellant’s line manager fulfilled their duties in line with the DBT’s HR policies, with advice and guidance provided by the HR casework team.” As the DBT advised the Commissioner, it would have been a “fruitless exercise” conducting searches for the requested information because the DBT has never held recorded information on the process summarised above. Specifically, recorded information detailing “channels of accountability” was not held in the Appellant’s case or others.”

56. In reaching his conclusion, the Commissioner noted the Appellant’s assertion that the Secretary of State is responsible for the actions taken by the DBT, but he considered that it was unlikely that there would be a documented list of accountability from the Secretary of State downwards for the handling of claims such as those litigated at an Employment Tribunal. Furthermore, he considered that the reasons provided by the DBT as to why it did not hold the information were reasonable. The panel considers that this was a reasonable conclusion to reach, based upon the evidence provided to the Commissioner by the DBT.

57. For all of the reasons set out above, the panel concludes that the Commissioner’s Decision Notice was in accordance with the law, and we do not consider that the Commissioner ought to have exercised any discretion differently.

58. The appeal is dismissed. Signed: Date: Judge Armstrong-Holmes 23 rd January 2026