51 Fawcett St, Sunderland - Scientology rates relief

Dear Sunderland City Council,

In respect of the following property:

51 Fawcett Street
England
Sunderland
SR1 1RS

please provide details of any mandatory or discretionary relief
from non-domestic rates which has been applied at any time over the
past 5 years.

If such relief has been applied, please provide:

- a copy of the application and all documents supplied in support
of it.

- the reasons behind the Council's decision to apply the relief.

- all information held including (but not limited to) internal and
external communications and correspondence relating to this matter.

Thank you for your assistance with this matter.

Yours faithfully,

William Thackeray

NB This FOIA request is related to a previous request, which can be
found at:
http://www.whatdotheyknow.com/request/sc...
It seems that NNDR relief was granted after the date of that
previous request. Owen Thomas in your office has full details.

Dear Sunderland City Council,

Please pass this on to the person who conducts Freedom of
Information reviews.

I am writing to request an internal review of Sunderland City
Council's handling of my FOI request '51 Fawcett St, Sunderland -
Scientology rates relief'.

No substantive response has been recived; the legal deadline has
now expired.

A full history of my FOI request and all correspondence is
available on the Internet at this address:
http://www.whatdotheyknow.com/request/51...

Yours faithfully,

William Thackeray

Dear Stewart,

Many thanks.

Yours sincerely,

William Thackeray

Dear Sunderland City Council,

Please pass this on to the person who conducts Freedom of
Information reviews.

I am writing to request an internal review of Sunderland City
Council's handling of my FOI request '51 Fawcett St, Sunderland -
Scientology rates relief'.

Concerning exemptions:

- I do not agree that the 'information in confidence' exemption
applies. See ICO decision FS50265544, which deals with very similar
information. As this decision is not yet on the ICO website, I'm
attaching the text below.

- Alternatively, if the 'information in confidence' exemption does
apply, then I argue that the public has a 'legitimate interest'
(under DPA) in the release of the information. Public interest
information is attached below.

Concerning the Fees Regulations:

- I do not agree that it is legitimate to aggregate the cost of
responding to this request with the cost of responding to a request
by a third party which post-dates this request. There's no way I
could have known at the time I submitted this request that a
third-party would submit a similar request a month later.

- I note that Sunderland is in breach of the legal deadline in
respect of the time taken to respond to this request, however the
relevant date for any determination in respect of the fees
regulations remains the date on which the request was made, not the
date on which Sunderland issued its much-delayed reply.

If the information is already available online then please send me
a link, and (if it's a long document) a page reference.

A full history of my FOI request and all correspondence is
available on the Internet at this address:
http://www.whatdotheyknow.com/request/51...

Yours faithfully,

William Thackeray

Below:

1) Public interest information
2) ICO Decision Notice FS50265544

1) Public interest information
------------------------------
('legitimate interest' of the public under DPA).

- Enquiry into the Practice and Effects of Scientology
http://www.xenu.net/archive/audit/fostho...
(The 'Foster Report' for HM Government)

- Mr Justice Latey's declaration in the High Court that:
"Scientology is both immoral and socially obnoxious. - Case [1985]
Fam Law 127
http://www.holysmoke.org/cos/latey.htm

- Home Office papers on Scientology:
http://files.whatdotheyknow.com/request/...

- "Preliminary report to the Clearwater city commission - (part
II.G.7)
http://www.xenu-directory.net/documents/...

- Scientology (the organisation itself, as well as specific
individuals) convicted of fraud:
http://news.bbc.co.uk/1/hi/world/europe/...

- "[Australian] Senate Economics Legislation Committee:
Inquiry into the Tax Laws Amendment (Public Benefit Test) Bill
2010"
http://www.aph.gov.au/senate/committee/e...

- Recent media reports
http://au.todaytonight.yahoo.com/article...
http://www.bbc.co.uk/programmes/b00v1ykr
http://news.bbc.co.uk/panorama/hi/front_...
http://news.bbc.co.uk/panorama/hi/front_...
http://www.private-eye.co.uk/sections.ph...

The public interest is heightened in this case because Sunderland
is the only local authority to apply discretionary relief (as well
as mandatory relief) to COSREC.

2) ICO Decision Notice FS50265544
---------------------------------

Reference: FS50265544
Freedom of Information Act 2000 (Section 50)
Decision Notice
5 October 2010
Public Authority: City of London
Address: PO Box 270
Guildhall
London
EC2P 2EJ
Complainant: Mr W Thackeray

Summary
The complainant asked the City of London (CoL) to release a copy of
the minutes of a meeting that took place with the Church of
Scientology Religious Education College Incorporated on 30 August
2006 concerning its application for mandatory rate relief. The CoL
responded refusing to disclose the requested information under
sections 31(1)(d), 40(2) and 41(1) of the Act. As the complainant
remained dissatisfied he approached the Commissioner. Following a
detailed investigation the Commissioner has decided that sections
31(1)(d), 40(2) and 41(1) of the Act do not apply in this case. He
has therefore requested that CoL release the requested information
to the complainant within 35 days of this Notice.

The Commissioner’s Role

1. The Commissioner’s duty is to decide whether a request for
information made to a public authority has been dealt with in
accordance with the requirements of Part 1 of the Freedom of
Information Act 2000 (the “Act”). This Notice sets out his
decision.

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Reference: FS50265544

The Request

2. The complainant contacted the City of London (“CoL”) on 9 June
2009 to request the following information:
“Please provide agenda, minutes, and any other records of the
meeting on 30 August 2006 between legal representatives of Church
of Scientology Religious Education College Incorporated (“COSREC”)
and the City of London (“CoL”) to discuss COSREC’s appeal following
refusals by the CoL of mandatory rate relief.”

3. The CoL responded on 7 July 2009. It confirmed that it holds the
minutes of the meeting that took place on 30 August 2006. However,
it was unwilling to disclose this information, as it considered
that it was exempt from disclosure under sections 31(1)(d), 40(2)
and 41(1) of the Act.

4. The complainant contacted the CoL on 10 July 2009 to request an
internal review.

5. The CoL responded further on 6 August 2009. It confirmed that it
remained of the opinion that section 31(1)(d), 40(2) and 41(1) of
the Act applied.

The Investigation

Scope of the case

6. On 23 August 2009 the complainant contacted the Commissioner to
complain about the way his request for information had been
handled. The complainant specifically asked the Commissioner to
consider the CoL’s application of sections 31(1)(d), 40(2) and
41(1) to the requested information and whether it should be
released under the Act.

Chronology

7. The Commissioner wrote to the CoL on 16 September 2009 to
confirm that the complaint had been accepted for formal
consideration and to request a copy of the withheld information.

8. The CoL responded on 16 October 2009. It provided a copy of the
withheld information and some useful background to the case.

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Reference: FS50265544

9. The Commissioner wrote to the CoL on 26 January 2010 to request
further more detailed arguments concerning its application of
section 41(1) in the first instance.

10. The CoL replied on 9 March 2010 providing the additional
information requested in respect of its application of section
41(1) of the Act. It also explained in more detail why it was of
the view that section 31(1)(d) of the Act applied to the withheld
information and why it felt section 40(2) applied to a section of
the document.

11. The Commissioner wrote to the CoL on 2 June 2010 to request
additional arguments to support its application of sections
31(1)(d) and 41 of the Act. He referred the CoL to the recent
Information Tribunal hearing of Mr William Thackeray v Information
Commissioner and the Common Council of the City of London
(EA/2009/00958) in which the Tribunal made strong comments relating
to the disclosure of this type of information relating to COSREC.

12. The CoL responded on 19 July 2010 providing its further
response. The CoL did not provide any further in-depth analysis of
the exemptions claimed or the recent Tribunal case referred to
above and instead asked the Commissioner to reach a decision.

13. On 25 September 2009 the CoL provided some additional
information in relation to its application of section 40(2) of the
Act to the withheld information.

Exemptions

14. The Commissioner will first consider the CoL’s application of
section 31(1)(d) of the Act to the withheld information. If it is
found that some or all of the information is not covered by this
exemption, he will then go on to consider sections 40(2) and
41(1).
Section 31(1)(d) – law enforcement

15. Section 31(1)(d) states that information is exempt under the
Act if its disclosure would, or would be likely to, prejudice the
assessment of any tax or duty or of any imposition of a similar
nature.
16. In the Information Tribunal hearing of Hogan v The Information
Commissioner and Oxford City Council (EA/2005/0030) (‘Hogan’) the
tribunal stated that:
“The application of the ‘prejudice test’ should be considered as
involving a number of steps. First, there is a need to identify the

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Reference: FS50265544

applicable interest(s) within the relevant exemption… Second, the
nature of ‘prejudice’ being claimed must be considered… A third
step for the decision-maker concerns the likelihood of occurrence
of prejudice.”
17. When considering the nature of the prejudice, the Tribunal
stated in the hearing of Hogan that:
“An evidential burden rests with the decision maker to be able to
show that some causal relationship exists between the potential
disclosure and the prejudice and the prejudice is, as Lord Falconer
of Thoroton has stated “real, actual or of substance” (Hansard HL
(VOL. 162, April 20, 2000, col.827). If the public authority is
unable to discharge this burden satisfactorily, reliance on
‘prejudice’ should be rejected.”

18. As stated above in paragraph 16, the third step of the
prejudice test is to consider the likelihood of occurrence of the
prejudice claimed. The Commissioner notes that there are two limbs
to this test; “would be likely to prejudice” and “would prejudice”.
The first limb of the test places a lesser evidential burden on the
public authority to discharge. “Would be likely to prejudice” was
considered in the Information Tribunal hearing of John Connor Press
Associates Limited v The Information Commissioner (EA/2005/0005).
The Tribunal stated that:
“the chance of prejudice being suffered should be more than a
hypothetical possibility; there must have been a real and
significant risk”.

19. The second limb of the test “would prejudice” places a much
stronger evidential burden on the public authority to discharge.
Whilst it would not be possible to prove that prejudice would occur
beyond any doubt whatsoever, it is the Commissioner’s view that
prejudice must be at least more probable than not.

20. Once the prejudice test is satisfied, the Council needs to
apply the public interest weighing up the arguments for and against
disclosure.
The prejudice test

21. The CoL confirmed that it considers disclosure of the requested
information would prejudice its assessment of tax, in this
particular case the assessment of mandatory rate relief. In the
alternative, it wishes to argue that disclosure would be likely to
have this effect and that any prejudice would be real, significant
and not a remote possibility. It presented the following arguments
to support its position.

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Reference: FS50265544

22. The CoL explained that disclosure of information provided in
relation to any application for mandatory rate relief would affect
the openness of future discussions with applicants and that this
would prejudice its assessment of applications for mandatory rate
relief. It stated that applicants consider that their tax matters
are private and confidential and therefore COSREC would have a
reasonable expectation that the meeting held to discuss its
application for tax relief and the information discussed within it
would remain private.

23. The CoL confirmed that disclosure would result in applicants
being reluctant to discuss their affairs openly, as they would have
the fear that the information they provide could be disclosed at
some time in the future. It explained that the CoL’s decision
making would be prejudiced if it received less than complete
information from its applicants. If less or selective information
is provided this would be likely to hinder the assessment process
possibly leading to some applications being assessed incorrectly.
The CoL stated that if taxes were incorrectly assessed the
tax-paying public would be affected and applicants for mandatory
rate relief would receive a windfall or be unfairly disadvantaged.
It confirmed that it is particularly important to protect the way
mandatory rate relief is assessed because it is of benefit to a
number of charitable organisations.

24. The CoL argued that if the public became aware that tax was
being incorrectly assessed due to a lack of openness on the part of
applicants it would lose confidence in the tax system as a whole
and this would lead to discontent and possibly to an increase in
tax evasion.

25. In addition, the CoL confirmed that it is necessary for
discussions as to tax liability to take place in private, so as to
avoid any impression that third parties could use the information
to influence the CoL’s decision making. It stated that any such
impression would prejudice the CoL’s assessment of tax by reducing
confidence in its decision making and thereby affecting the quality
of information provided to it by applicants. CoL confirmed that
because tax decisions are under regular review, this argument
applies even after a decision has been taken because of the ongoing
risk that disclosed information could be used by a third party to
affect future decisions on tax liability. It stated that this is
real, significant and not a remote possibility.

26. The Commissioner has carefully considered the arguments
presented by CoL, the prejudice claimed and the likelihood of this
occurring. He has concluded that neither of the thresholds has been
satisfied in this case and he will now explain why.

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Reference: FS50265544

27. He has first considered the process by which an application for
mandatory rate relief is made. He notes that the CoL and other
public authorities provide some guidance on their websites relating
to rate relief for charities and non profit organisations. It is
publicly known that charities and non profit organisations are
entitled to 80% relief from business rates if they meet certain
criteria. The CoL does not appear to publish its set of criteria
but the Commissioner notes that other public authorities do. He
notes that there is also a further facility for such organisations
to apply for the remaining 20% to be waived.

28. The Commissioner accepts that for the majority of organisations
it will be fairly obvious that they qualify for this type of tax
relief. With the exception of special circumstances, organisations
such as scouts and guides organisations, youth clubs, playgroups,
village halls etc will more than likely qualify for 100% relief.
For other organisations, however, a more detailed in depth
assessment of individual circumstances and the organisation’s set
up will be required by the public authority they are applying to.
COSREC falls into this category and the requested information is
information which was obtained by the CoL during its detailed
consideration of COSREC’s application.

29. He further notes that central government publicises the
availability of this relief and actively encourages suitable
organisations to apply for it. It is optional for an organisation
to apply for relief and the benefits of applying for the relief are
that it would not need to pay the rates and instead central
government funds would cover them. There is a considerable
incentive for organisations to apply for relief and the purpose of
the relief is to encourage the thriving of organisations that have
a benevolent rather than profit motive.

30. Such relief enables important funds which are often already
strained in such organisations to be directed to the specific cause
they are set up to target. These organisations have a significant
incentive to be open with the public authorities they are applying
to and to provide whatever information is required to demonstrate
that they meet the qualifying criteria. It is the Commissioner’s
view that this incentive will remain regardless of whether
disclosure were ordered in this case. Such relief will continue to
be beneficial to these organisations financially and for this
reason they will continue to apply for such relief and supply the
information that is required for the public authority to assess
their application. He therefore does not accept that disclosure in
this case would or would likely to lead to those organisations that
usually qualify being less open in future applications or unwilling
to share information with the CoL.

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Reference: FS50265544

31. The Commissioner does accept that there may be situations where
an organisation may decide that it is more harmful to them to
provide information necessary to support their claim than to miss
out on the relief, for example, where the information is
commercially sensitive. However, no such arguments have been made
by the CoL in this case.

32. The Commissioner does not accept that disclosure would or would
be likely to affect the CoL’s ability to assess tax relief or lead
to possible errors being made. As stated above, this argument
followed on from the CoL’s argument that disclosure would or would
be likely to result in organisations being less open or less
willing to provide information in the future to support their
applications and the Commissioner was not convinced that disclosure
would or would be likely to have such an effect. The content of the
withheld information is key to any decision reached on the
likelihood of prejudice. The requested information relates to the
particular circumstances of the application for relief in this
case. The Commissioner cannot see how the contents of the withheld
information would or would be likely to have the distinct wider
implications the CoL has claimed. The CoL has also stated itself
that very few applications for mandatory rate relief are
contentious and for the majority it is clear that the statutory
criteria are met.

33. Turning now to the CoL’s argument that tax matters are private
and confidential, it is the Commissioner’s view that it would be
inappropriate to say that all tax affairs are private and
confidential. The tax affairs of an individual are different to the
tax affairs of a charity or organisation. The tax affairs of an
individual are more likely to contain detailed and sensitive
information about the personal circumstances of that individual
than is the case here. The tax affairs of a charity or company are
non-personal and the Commissioner is satisfied that the contents of
the requested information in this case are not commercially
sensitive to COSREC. The Commissioner accepts that a private
individual would have some level of expectation that their tax
affairs would remain private due to the personal nature of this
type of information. However, he considers this argument is much
weaker for information which relates to the tax affairs of a
charity or organisation, as this type of information is
non-personal. Even if the Commissioner were to accept that there
was some level of expectation of confidence in relation to
non-personal information remaining private, he is not satisfied
that this argument is sufficient to meet either limb of the
prejudice test in this case due to the fact that the contents of
the requested information do not appear to be sensitive and there
remain significant incentives to such organisations to apply for
such relief.

34. The Commissioner also feels there is a distinction between tax
affairs where there is a requirement to engage with a public
authority and a

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Reference: FS50265544

voluntary application such as this where it is the organisation or
charities decision whether to apply. He accepts that there are
expectations of privacy in the first situation but feels that the
expectations are much weaker in the second situation.
35. The CoL also argued that tax decisions are under regular review
and that disclosed information could be used by a third party to
affect future decisions on tax liability, possibly leading to an
increase in tax evasion. The Commissioner asked the CoL to expand
on this argument and to provide any evidence it has to support its
assertion that disclosure would lead to third party influences and
an increase tax evasion. As stated in paragraph 12 above, the CoL
provided no further arguments or information to support this view.
36. The Commissioner has considered the contents of the withheld
information in this case and he does not agree that disclosure of
this information would or would be likely to have these effects. He
cannot see, based on the arguments and evidence provided by CoL,
how the contents would or would be likely to be beneficial to a
third party or how this information could be used by other
organisations to their advantage. The CoL in fact later stated that
third party influences are irrelevant to a decision to award
mandatory rate relief, as relief is awarded if the statutory
criteria are met. If third party input would have no effect on
decision making, it then follows that it cannot be argued that
there would or would be likely to be prejudice to the assessment or
collection of tax.

Conclusion

37. In conclusion, the CoL has not provided sufficient arguments to
demonstrate that either threshold of the prejudice test is
satisfied in this case. The Commissioner is therefore satisfied
that section 31(1)(d) of the Act is not engaged.
38. As the Commissioner has found that this exemption is not
engaged there is no need for him to go on to consider the public
interest test.

39. The Commissioner will now go on to consider the CoL’s
application of section 41 of the Act to the requested information.
Section 41 – information provided in confidence

40. Section 41(1) of the Act provides that information is exempt
from disclosure if it was obtained by the CoL from any other person
and the disclosure would constitute an actionable breach of
confidence. The

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Reference: FS50265544

exemption is absolute and therefore not qualified by the public
interest test set out in section 2 of the Act.

Was the information obtained from another person?

41. The CoL argued that the entire document should be regarded as
information obtain from another person; in this case COSREC, as the
information is the minutes of a meeting that took place to obtain
further information from COSREC in order for CoL to assess its
application for mandatory rate relief. It stated that arguably four
sentences within the document itself are the comments of two of the
CoL’s members of staff which attended the meeting and therefore do
not constitute “information obtained from another person”. However,
it stated that 2 of these sentences either record the views of
COSREC or are expressed in such a way that a reader could identify
from the comments information obtained from COSREC. The remaining
two are meaningless in isolation. For these reasons, the CoL argued
that it was of the view that the entire document should be regarded
as obtained from another person and therefore section 41 is
engaged.

42. The Commissioner has carefully considered the contents of the
requested information. He notes that the requested information is
the minutes of a meeting that took place between COSREC and the CoL
during which information and views were shared. It is the
Commissioner’s view that the very nature of this interaction
demonstrates that the entire information cannot be said to be
obtained from another person. The meeting was a two way process to
discuss the application therefore any views or comments made by the
CoL’s attendees is not information obtained from another person.

43. For the four sentences identified by the CoL, as detailed in
paragraph 41 above, the Commissioner has concluded that this
information was not obtained from another person and therefore
section 41 of the Act cannot apply.

44. For the remaining elements of this document, the Commissioner
is satisfied that it is information obtained from another person.
He will therefore now go on to consider whether disclosure of this
part of the requested information would constitute an actionable
breach of confidence.

Would disclosure constitute an actionable breach of confidence?

45. The Commissioner considers the test set out in Coco v A N Clark
(Engineers) [1968] FSR 415 is the most appropriate test to apply in
this case. This test states that a breach will be actionable if:

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Reference: FS50265544


the information has the necessary quality of confidence;


the information was imparted in circumstances importing an
obligation of confidence; and


there was an unauthorised use of the information to the detriment
of the confider.

46. When considering the first element of the Coco v Clark test he
must consider whether the information has the necessary quality of
confidence. Information will have the necessary quality of
confidence if it is not otherwise accessible and if it is more than
trivial. Information which is known only to a limited number of
individuals will not be regarded as generally accessible although
information that has been disseminated to the general public
clearly will be. Information which was important to the confider
cannot be considered to be trivial.

47. The Commissioner has considered the contents of the requested
information. He is satisfied that the requested information is
neither trivial nor in the public domain. He accepts that the
information was provided by COSREC to support its application for
mandatory rate relief in meeting which it regarded as confidential
and as such the information itself was important to COSREC and
private.

48. Concerning the second element of the test, an obligation of
confidence can be expressed both explicitly and implicitly. The CoL
argued that applications for tax relief are by their nature private
and all tax payers have the general expectation that their tax
affairs will remain private and confidential whether a private
individual or a company or organisation. The CoL stated that it was
clear to both it and COSREC that the meeting held to discuss its
application for mandatory rate relief gave rise to a reasonable
expectation of privacy.

49. The Commissioner has reviewed the requested information. It is
his view that there is no evidence to suggest that any explicit
obligation of confidence was given in this particular case and he
notes that the information itself was not marked as being provided
on condition that it was to be kept confidential. However, the
Commissioner’s accepts that given the custom and practice of the
CoL in handling mandatory rate relief applications, in this
particular case, the requested information was imparted in such a
way which gave rise to an implied obligation of confidence.

50. It is now necessary to consider whether disclosure would cause
any detriment to COSREC. The Commissioner considers that there is a
distinction between information relating to an individual’s
personal and private life and information which is non-personal
information.

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Reference: FS50265544

Following the Information Tribunal hearing of Pauline Bluck v IC &
Epsom & St Helier University NHS Trust, EA/2006/0090 it is the
Commissioner’s view that detriment is not a prerequisite of an
actionable breach when information relating to an individual’s
personal and private life is being considered. This is because it
can be argued in the alternative that the real consequence of
disclosing personal and private information is the infringement of
the confider’s privacy.

51. However, the Commissioner does not agree that the same approach
should be taken where non-personal information is concerned. In a
more recent Information Tribunal hearing, The Higher Education
Funding Council for England v Guardian News & Media Ltd,
EA/2009/0036, it was stated that:
“…for the time being, this Tribunal, when dealing with the type of
information in question in this Appeal [commercial confidence]
should not depart from the line of authority from the higher courts
leading from Coco v Clark” (paragraph 43).
The requested information in this case is non-personal information
relating to COSREC. It is therefore the Commissioner’s view that
for disclosure to constitute a breach of confidence in this case
there has to be a detrimental impact on the confider i.e. COSREC.

52. The arguments presented earlier in this Notice at paragraph 27
to 36 are of relevance here. The Commissioner considered that based
on the contents of the requested information disclosure would not
or would not be likely to have the implications described by CoL.
As the Commissioner did not accept that any of the prejudices
claimed would or would be likely to occur, it follows that he is
not persuaded that disclosure would cause any detriment to the
COSREC in this case.

53. As stated in paragraph 31 above, the Commissioner does accept
that there may be cases where disclosure would be detrimental to
the confider; for example where the requested information is
commercially sensitive. However, in this case the CoL has not
presented any arguments to the Commissioner, nor has he been able
to determine any obvious reason for himself by viewing the withheld
information, as to how the withheld information would cause any
detriment to COSREC, if it were released.

54. As the Commissioner is not satisfied that the third element of
the Coco v Clark test is satisfied in this case he has concluded
that section 41 of the Act does not apply to the requested
information.

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Section 40 – personal data

55. The Commissioner will now go on to consider the CoL’s
application of section 40(2) of the Act. He wishes to highlight at
this point that this exemption has only been applied the names of
those individuals that attended the meeting. Six individuals
attended the meeting; these can be categorised as follows:
(a)
the COSREC’s legal representative;
(b)
a named Scientologist representing COSREC;
(c)
four employees of the CoL.

56. The CoL confirmed in its correspondence dated 9 March 2010 to
the Commissioner that it only wishes to rely on section 40(2) of
the Act for (a) and (b) listed above and for one of the four CoL
employees referred to in (c), who is considered to be a junior
member of staff.

57. The Commissioner will therefore now consider the application of
section 40(2) of the Act to these three attendees.

58. Section 40(2) of the Act states that information is exempt from
disclosure if it constitutes the personal data of a third party and
its disclosure under the Act would breach any of the data
protection principles or section 10 of the Data Protection Act
1998.

59. The CoL argued that the names of these attendees and the reason
why they attended this meeting; whether a CoL employee or a
representative of COSREC or a Scientologist; is personal data and
that disclosure of this information under the Act would breach the
first data protection principle as outlined in the Data Protection
Act 1998 ‘the DPA’).

60. Firstly, the Commissioner must consider whether the requested
information is personal data. Personal data is defined in Section 1
of the DPA as follows:
““personal data” means data which relate to a living individual who
can be identified -
(a) from those data, or
(b) from those data and other information which is in the
possession of, or is likely to come into the possession of, the
data controller,
and includes any expression of opinion about the individual and any
indication of the intentions of the data controller or any other
person in respect of the individual.”

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61. It is the Commissioner’s view that the name of the three
attendees to which section 40(2) of the Act has been applied is
quite obviously personal data. The Commissioner is also satisfied
that the name of an individual’s employer or the fact that they are
representing a particular organisation is personal data about those
individuals.

62. As the Commissioner is satisfied that the names of the three
attendees and the reason why they attended is personal data, it is
now necessary to go on to establish whether disclosure under the
Act would breach the first data protection principle, as the CoL
has claimed.

63. The first data protection principle states that:
“Personal data shall be processed fairly and lawfully and, in
particular, shall not be processed unless -
(a)
at least one of the conditions in schedule 2 is met, and
(b)
in the case of sensitive personal data, at least one of the
conditions in Schedule 3 is also met.”

64. The Commissioner will address each of the three attendees in
turn and will first consider whether disclosure would be fair and
lawful. He will refer to each as (a), (b) and (c) as described in
paragraph 56 above.
Attendee (a)

65. The CoL argued that COSREC’s legal representative would have
had a reasonable expectation that their name and the fact that they
represented the COSREC at this meeting would not be released into
the public domain. It stated that this is evidenced by the fact
that the COREC has repeatedly objected to disclosure by the CoL of
any information relating to its application for mandatory rate
relief. CoL argued that due to this expectation, disclosure of this
information would be unfair on the individual concerned.

66. The CoL also argued that given the controversial nature of
COSREC, disclosure of the name of the COSREC’s legal representative
could significantly and negatively impact on the life of this
individual.

67. From a simple internet search of the named individual the
Commissioner has found various internet sites and publications
which openly disclose this individual and his connection to the
COSREC. The Commissioner is therefore of the view that as this
information is already widely in the public domain, it would not be
unfair to the

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Reference: FS50265544

individual concerned if disclosure of his name and the fact that he
is the COSREC’s legal representative were ordered in this case.
Attendee (b)

68. The CoL presented the same arguments for attendee (b) as
outlined in paragraphs 65 to 67 above for attendee (a).

69. Again, the Commissioner has undertaken a simple internet search
of this individual and has found one particular publication from
2007 where his name and the fact that he is connected with the
COSREC are openly mentioned. In this particular publication, this
individual has provided specific quotes to the matter being
discussed. It is the Commissioner’s view that as this attendee’s
name and the fact that he is connected with the COSREC is already
in the public domain, disclosure in this case would not be unfair.
Attendee (c)

70. As stated in paragraph 55 above, attendee (c) is an employee of
the CoL. In addition to providing arguments to support its
application of section 40(2) of the Act to the disclosure of the
name of this employee, the CoL provided the Commissioner with
copies of its Staff Data Protection Policy and its Freedom of
Information Policy – Managing Access to Personal Information. It
also provided a copy of its internal grading structure and
confirmed the job title of this employee and their grade at the
time of the request.

71. The CoL explained that it is its current policy to only
disclose the names of Divisional Heads within the organisation and
the names of those employees with public facing roles on request.
The names of any employee below this threshold or in a role that is
not public facing would be withheld under this exemption. It argued
that attendee (c) held a position at grade f in its current
structure (the structure has grade a – j, j being the most senior
of grades), which it considers to be of junior status. The CoL
stated that as this employee held a junior role below the threshold
of Divisional Head and was not in a public facing role, they hold a
reasonable expectation that their name and the fact that they are
employed by the CoL would not be released into the public domain.
It confirmed that as this employee has no general expectation that
their name would be disclosed following requests for information,
disclosure in this case would be unfair and therefore in breach of
the first data protection principle.

72. The CoL argued that the COSREC is controversial and therefore
disclosure of the names of individual employees who have been

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Reference: FS50265544

involved in the decision to award mandatory rate relief, albeit
indirectly in this particular case, has the potential to impact on
their lives. It therefore considers that there are strong grounds
in this case to protect the privacy of attendee (c), particularly
as they hold a junior position.

73. The Commissioner has considered the seniority of the employee
in question in this case and compared the CoL’s policy on
disclosure of employee details and its grading structure to his own
policy and organisational structure. It is his view that in this
particular case, the CoL has set the threshold of seniority too
high.

74. It is generally accepted that remuneration increases with
seniority and it is the Commissioner’s view that staff of seniority
are subject to further public scrutiny and accountability when
compared to less senior members of staff. At the time of the
request attendee (c) held a position at grade f; a grade just above
midgrade within the CoL structure. According to the salary scales
provided by the CoL, an employee with a role at level f will
receive a salary between £36,590 and £43,730 (excluding any London
weighting they are entitled to) per annum.

75. For remuneration of this level, which is well above the average
for the public sector, the Commissioner would expect the role to
have a reasonable level of seniority and accountability. By way of
comparison, it is the Commissioner’s policy to release the names of
those staff in his own structure from level D above. A level D
position attracts an annual salary between £22,330 and £30,211 (pay
ranges for 09/10) per annum. It is the Commissioner’s view that a
Level D position within his own structure either involves some
level of managerial responsibility and therefore seniority over
other members of staff or a role that involves decision making for
which the employee has accountability.

76. Given the level of remuneration attendee (c) receives from CoL,
the Commissioner is of the view that attendee (c) does not hold a
junior position as the CoL has claimed. He considers attendee (c)
holds a position of sufficient seniority to warrant the further
transparency and public scrutiny such roles attract even where the
involvement in the particular decision making is limited or
indirect.

77. Although attendee (c) may have an expectation that their name
will not be released in response to information requests due to the
policy the CoL has in place, the Commissioner considers this
expectation to be unreasonable based on their remuneration and the
level of seniority such a salary attracts within the public sector.

15

Reference: FS50265544

78. In other cases he has considered the Commissioner has drawn a
distinction between information which relates to an employee acting
in an official capacity and information which relates to their
private life; the latter clearly requiring more privacy and
protection. In this case, the requested information is the name of
a CoL employee who attended a meeting with COSREC during which
COSREC’s application for mandatory rate relief was discussed. The
requested information clearly relates to attendee (c) acting in an
official or work capacity; it is not information which relates to
their private life.

79. The Commissioner accepts that the COSREC is controversial.
However, he cannot accept that disclosure in this case could
possibly impact on the life of attendee (c); the CoL has produced
no evidence to demonstrate that this would occur or to suggest that
this is even a small possibility. The CoL has confirmed itself that
attendee (c) was indirectly involved in the decision taken to grant
relief and disclosure, if ordered in this case, would only reveal
that attendee (c) attended a meeting to gather information about
COSREC application prior to any firm decision being reached.
Despite the fact that disclosure would result in a limited amount
of information about attendee (c) becoming available, the
Commissioner nevertheless considers that there is an interest in
the additional transparency and openness that this would bring.

80. In conclusion, it is the Commissioner’s view that it would not
be unfair to release the name of attendee (c) in response to this
request.

81. As the Commissioner considers, in this particular case, that it
would not be unfair to disclose the names of attendees (a), (b) (c)
in response to this request and knows of no reason why such
disclosure would be unlawful, it is now necessary for him to
consider whether any of the conditions in Schedule 2 of the DPA can
be met.

82. Condition 6 is the only condition that can apply in these
circumstances. This states that personal data can be disclosed if:
“The processing is necessary for the purposes of legitimate
interests pursued by the data controller or by the third party or
parties to whom the data are disclosed, except where the processing
is unwarranted in any particular case by reason of prejudice to the
rights and freedoms or legitimate interests of the data subject.”

83. The Commissioner considers that there is a significant
legitimate public interest in obtaining information about the
process that led to COSREC being granted mandatory rate relief to
enable the public to better

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Reference: FS50265544

understand how this organisation qualified for this form of tax
relief. Particularly as the COSREC is controversial, there is
significant public concern about the relief being awarded to this
organisation, the amounts involved are substantial and the cost of
mandatory rate relief is met by the public purse.

84. Although dealing with the application of other exemptions, the
Commissioner notes that the Information Tribunal made some strong
and compelling arguments in favour of disclosure of any information
which is not legally professionally privileged that would assist
the public in understanding more clearly why relief was awarded to
COSREC in the case of Mr William Thackeray v Information
Commissioner and The Common Council of the City of London
(EA/2009/00958). At paragraph 46, the Tribunal stated:
“ In its view the case for disclosure was likely to be stronger in
relation to material that was legally professionally privileged
given the significant public interests that arise in this case”.
The Tribunal then went on to say:
“The Tribunal wished to recommend to the Council that it reconsider
its position in light of this Tribunal assessment of the public
interests in favour of disclosure.”

85. It is the Commissioner’s view that the legitimate interests of
the complainant and the public as a whole regarding transparency
and accountability are sufficient to warrant the disclosure of the
identities of the three attendees in this case. As stated in
paragraphs 67 and 69 above, the names of attendee (a) and (b) and
their connection to the COSREC are already in the public domain. He
therefore does not accept that the disclosure of these names in
this case would prejudice the rights and freedoms of these
individuals.

86. In respect of attendee (c), as explained above, the
Commissioner is not convinced that disclosure in this case would
prejudice the rights and freedoms of this individual or constitute
an unwarranted intrusion into the public role of this employee. The
CoL confirmed itself that attendee (c) was only indirectly involved
in the overall decision to grant COSREC rate relief. Disclosure in
this case would confirm that attendee (c) was part of a meeting
that took place with COSREC to gather further information about its
application. The decision to grant relief was taken afterwards;
disclosure therefore provides no indication of which employee(s)
made the overall decision. He therefore does not accept that this
employee would be specifically targeted by those campaigning
against the COSREC. Attendee (c) also holds a position

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Reference: FS50265544

within the CoL of sufficient seniority to warrant the
accountability and transparency even of their limited involvement
that disclosure would provide in this case.

87. In conclusion, it is the Commissioner’s view that disclosure of
the names of the three attendees in this case would be fair and
condition 6 of Schedule 2 of the DPA is met in this case. For these
reasons, he is satisfied that section 40(2) of the Act is not
engaged.
The Decision

88. The Commissioner’s decision is that the CoL did not deal with
the following aspects of the request for information in accordance
with the Act:


it incorrectly relied upon section 31(1)(d) of the Act for the non
disclosure of the requested information;


it incorrectly relied upon section 41 of the Act for the non
disclosure of the requested information;


it incorrectly relied upon section 40(2) of the Act for the non
disclosure of the names of three individuals referred to in the
withheld information.

Steps Required

89. The Commissioner requires the CoL to take the following steps
to ensure compliance with the Act:


the CoL should disclose the requested information, in its entirety,
to the complainant.

90. The CoL must take the steps required by this notice within 35
calendar days of the date of this notice.

Failure to comply

91. Failure to comply with the steps described above may result in
the Commissioner making written certification of this fact to the
High Court (or the Court of Session in Scotland) pursuant to
section 54 of the Act and may be dealt with as a contempt of court.

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Reference: FS50265544

Right of Appeal

92. Either party has the right to appeal against this Decision
Notice to the First-tier Tribunal (Information Rights). Information
about the appeals process may be obtained from:
First-tier Tribunal (Information Rights)
GRC & GRP Tribunals,
PO Box 9300,
Arnhem House,
31, Waterloo Way,
LEICESTER,
LE1 8DJ
Tel: 0845 600 0877
Fax: 0116 249 4253
Email: [email address].
Website: www.informationtribunal.gov.uk
If you wish to appeal against a decision notice, you can obtain
information on how to appeal along with the relevant forms from the
Information Tribunal website.
Any Notice of Appeal should be served on the Tribunal within 28
(calendar) days of the date on which this Decision Notice is sent.
Dated the 5th day of October 2010
Signed ………………………………………………..
Jo Pedder
Group Manager
Information Commissioner’s Office
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF

19

Dear O,

Thank you for your response to my FOIA request.

I appreciate that large attachments can be difficult to send by
email.

I therefore request that the information be uploaded over the web
to the whatdotheyknow.com website, at this address:

http://www.whatdotheyknow.com/upload/req...

A 6Mb upload should be no problem.

Thank you for your assistance with this matter.

Yours sincerely,

William Thackeray

OK - many thanks.

Yours sincerely,

William Thackeray

Dear Mrs Gamble,

Many thanks for the information you have provided.

Although I intend to refer this matter to the Information
Commissioner in respect of the withheld information, I wished first
to express my thanks to you and your colleagues for your assistance
with this matter.

Yours sincerely,

William Thackeray

Dear Sunderland City Council,

11 Emails, with attachments, recieved with thanks.

Yours sincerely,

William Thackeray

Dear Sunderland City Council,

I note that in section Cii, page 61, personal details of a member
of the public (a third party) have been released - they should have
been redacted.

I will ask whatdotheyknow.com to withdraw this document from the
web immediately.

Could you please do the necessary redactions and re-send the
document.

Yours sincerely,

William Thackeray

Dear Owen,

Many thanks. If you could attach it to an email and send it to this
address, then that should be OK.

Yours sincerely,

William Thackeray

Dear Owen,

Attachment received, with thanks.

However, page 61 still hasn't been fully redacted: the name and
email address of a Scientology critic are visible.

Could you please redact it and re-send.

I feel forced to comment that, although the Council is generally
rather keen to redact information relating to itself, it appears
remarkably careless with information relating to the general
public.

The Council has placed the named individual in danger of harassment
from Scientology, of the type described by Dr Stephen Kent (a
sociologist specialising in new religions) in the following
document:
http://www.arts.ualberta.ca/~skent/Linke...

Yours sincerely,

William Thackeray