What information was shared from caerphilly probation services to the housing department at the time mathew William's was released from prison and place at my hotel the sirhowy arms in argoed

Gwrthodwyd y cais gan Caerphilly County Borough Council.

Dear Caerphilly County Borough Council,

I would like to know what information was shared between caerphilly probation and housing department . Upon placing mathew William's at my hotel sirhowy arms in argoed in 2013 please
Yours faithfully,

Mandy Miles

WWW: FOI, Caerphilly County Borough Council

1 Atodiad

Thank you for your recent FOI / EIR request. Please find attached an acknowledgement for this request.

dangos adrannau a ddyfynnir

WWW: FOI, Caerphilly County Borough Council

1 Atodiad

Dear Mandy Miles

 

FREEDOM OF INFORMATION ACT 2000 - INFORMATION REQUEST

 

Thank you for your request for information received on 8th October.

 

We have considered your request, but on this occasion we cannot supply the
information.

 

In accordance with Section 17 of the Freedom of Information Act 2000 this
letter acts as a Refusal Notice. 

 

The exemptions applied are Section 41(1) - Information provided in
confidence, and Section 40(2) - Personal Information. For further details
on why this exemption applies please see the attached document.

 

Although we cannot meet your request this time, if you have any further
information needs in the future then please contact
[1][Caerphilly County Borough Council request email].

 

Yours sincerely

 

GARETH GRIFFITHS

Corporate Information Governance Unit

 

 

Freedom of Information Act 2000 / Environmental Information Regulations
2004

 

You have the right to appeal against our decision.
If you wish to appeal please set If you are unhappy with that decision you
out in writing your grounds of have the right to appeal to:
appeal and send to:
 
 
Information Commissionerâ s Office â
Corporate Information Governance Wales
Unit 2nd Floor
Caerphilly county borough Churchill House
council, Churchill Way
Penallta House Cardiff
Tredomen Park CF10 2HH
Hengoed. CF82 7PG
 
 
Tel: 029 2067 8400
Appeals will be determined by an Fax: 029 2067 8399
appropriate senior officer. Email: [2][email address]

Website: [3]www.ico.org.uk

 

 

Re-use of information without permission may infringe the Copyright,
Designs and Patents Act 1988. Re-use can include, but is not limited to,
making multiple copies, publishing and issuing copies of the information
to a wider audience. If you would like to re-use copyright material owned
by Caerphilly County Borough Council, please contact us. Authorisation to
re-use copyright material not owned by this Authority should be sought
directly from the copyright owner.

 

 

dangos adrannau a ddyfynnir

Dear Caerphilly County Borough Council,

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

I am writing to request an internal review of Caerphilly County Borough Council's handling of my FOI request 'What information was shared from caerphilly probation services to the housing department at the time mathew William's was released from prison and place at my hotel the sirhowy arms in argoed'.

[The Above Request Should Be available to me, I am the owner of the hotel and Mathew is Deceased, a lot of the information has been shared at the time of the inquest , I do not want information for 2014 I am asking for information relating to 2013. I will get consent off Mr Williams Family if that is required ,, the information the probation service shared with the council will be required , I am in court in November I will request the judge , requests the information, you know by law you cannot refuse him/her IVE DETAILS ABOUT YOUR COMPLAINT HERE ]

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

Yours faithfully,

Mandy Miles

WWW: FOI, Caerphilly County Borough Council

FOI/19/1477

Dear Mandy Miles,

We acknowledge receipt of your request for an internal appeal received on
28th October 2019.

Internal appeals are usually completed within 20 working days.

Regards

Corporate Information Governance Unit

dangos adrannau a ddyfynnir

Harrhy, Christina, Caerphilly County Borough Council

Dear Ms Miles,

 

Thank you for your e-mail dated 28^th October 2019 requesting an internal
review against the Council’s refusal to provide the information requested
i.e.

 

I would like to know what information was shared between caerphilly
probation and housing department . Upon placing mathew William's at my
hotel sirhowy arms in argoed in 2013 please

 

The process in this Council is that internal appeals are dealt with by an
appropriate senior officer and if any advice is required, it is obtained
from people who were not involved in the original decision-making process.
My role in dealing with an appeal is to review the matter and decide
whether, in light of the representations you have made, the Council has
not disclosed relevant information, or confirm the original decision.

 

As the information you requested relates to a deceased person, your
request was considered under the Freedom of Information Act 2000 (FOI) as
data protection legislation relates only to a living individual, and a
public authority must handle any request for information about a deceased
person under the terms of the FOI Act. Any disclosure under this
legislation puts the information into the public domain i.e. made
available to everyone.

 

When considering the disclosure of information under the FOI Act, a panel
of officers meet, including FOI specialists and one of the Council’s
Principal Solicitors, to consider whether an exemption applies together
with any public interest test required by the legislation.

 

The FOI Act provides a general right of access to information held by
public authorities and you have asked me to investigate the response you
have been given as I understand you feel that the information should have
been released. I have determined that the main issue to consider is
whether Caerphilly County Borough Council (CCBC) has met its obligations
under the FOI Act in respect of your request or have we failed to provide
you with information to which you are entitled.

 

Section 1 of the FOI Act states:

 

(1) 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

 

In an e-mail dated 24^th October 2019, the Council advised that the
information you requested was exempt from disclosure under the FOI Act
under S40(2) personal information and S41(1) information provided in
confidence exemptions. This in itself is confirmation that the information
is held by the authority and therefore, I have determined that the Council
met its obligation under Section 1(a) of the FOIA i.e. it has confirmed
that the information requested is held by the Council.

 

As I have established that the requirement of Section 1(a) has been met, I
went on to consider whether the Council has complied with Section 1(b)
which gives an individual the right “to have that information communicated
to him”.

 

In response to your request, you were advised that the information
requested was exempt from disclosure by virtue of the S40 (2) – personal
information and S41(1) - information provided in confidence exemptions and
I will consider each one separately:

 

S40 (2) – personal information:

 

The release of the information was considered by the Council’s Exemption
Panel who determined that the Council should not provide this information
as it contained 3^rd party personal information. The information is
therefore exempt from disclosure under section 40 (2) of the FOIA –
personal information exemption, which sets out an exemption from the right
to know if the information requested is personal information protected by
Data Protection legislation, and a refusal notice was issued explaining
why this exemption applied.

 

The general right of access to information places a number of obligations
on a public authority and I have reviewed the Exemption Panel’s decision
to apply the S40 (2) exemption.

 

In summary, Section 40(2) of FOI provides an exemption for information
which is the personal data of any third party, where disclosure would
contravene any of the Data Protection Principles contained in Article 5 of
the General Data Protection Regulations 2016 (GDPR). This exemption is
designed to address the tension between public access to official
information and the need to protect personal information. The FOIA
requires the release of publicly held non-exempt information, and wrongly
withholding information would breach the FOIA. However, wrongly releasing
an individual’s personal information would breach Data Protection
legislation. It is therefore very important to understand and apply this
exemption correctly to ensure compliance with both legal regimes.

 

With this in mind, I went on to consider if the information withheld is
(or contains) personal data. Any reference to an individual in information
held by a public authority can be personal data and whether information is
personal data will often be obvious. The two main elements of personal
data are that the information must “relate to” a living person and that
person must be identifiable. Information will “relate to” a person if it
is about them, linked to them, has some biographical significance for
them, is used to inform decisions affecting them, has them as its main
focus or impacts on them in any way and I am satisfied that the
information requested does contain information which falls within this
definition and therefore does constitute 3^rd party personal data.

 

As I have determined that the information requested falls within the
definition of personal data as it “relates” to and “identifies” 3^rd
parties, I had to consider whether disclosure would breach the data
protection principles, with principle 5(1)(a) ‘personal data shall be
processed lawfully, fairly and in a transparent manner in relation to the
data subject’ most applicable. Under Data Protection legislation, the
Council has a duty to ensure that 3^rd party personal data is adequately
protected and, when a request is received that contains 3^rd party
personal data, must decide whether disclosure would be fair and lawful.

 

We first need to determine if the disclosure would be fair and to do this
we need to consider a number of factors, in particular the reasonable
expectations of the 3^rd parties, whether there is a legitimate interest
in the requester having access to the information, and the balance between
this and the rights and freedoms of the data subjects.

 

The information withheld includes details of living 3^rd parties and I am
satisfied that this constitutes the personal data of those individuals and
that they would have a reasonable expectation that their information would
not be disclosed to the public.

 

As I have determined that the information requested does contain the
personal data of 3^rd parties, I went on to look at the legitimate public
interest in disclosure and balanced this against the rights of the
individuals concerned. I found that disclosure would not be fair on this
occasion as there would be no expectation by the 3^rd parties that their
personal information would be released into the public domain.

 

Conclusion on application of S40(2):

 

Section 40(2) of the FOIA provides an exemption which covers the personal
data of third parties i.e. anyone other than the requester, if it would be
outside the reasonable expectations of the individuals for their
information to be disclosed into the public domain through an FOI request.
As explained above, the reasonable expectation of an individual is a key
issue to consider when assessing fairness and it is important to determine
whether the 3^rd parties have a reasonable expectation that their
information will not be disclosed. Therefore, on balance, I agree that the
information requested is personal information covered by the Data
Protection legislation and is exempt under section 40(2) of the FOIA.
Disclosure would be unfair and would breach Article 5(1) of the GDPR and
the decision to withhold the information was correct.

 

S41 (1) – information provided in confidence:

 

S41 (1) of the FOIA states that:

 

Information is exempt if –

a)    It was obtained by the public authority from any other person
(including another public authority), and

b)    The disclosure of the information to the public (otherwise than
under this Act) to the public authority holding it would constitute a
breach of confidence actionable by that or any other person.

 

As explained above, the document requested relates to the deceased and I
am satisfied that the information withheld was obtained from the deceased,
either directly or through professionals involved in his case, and
therefore accept that the withheld information was obtained from another
person and meets the requirements of S41 (1)(a) i.e. it was obtained by
the public authority from any other person (including another public
authority)

 

I then had to consider whether disclosure would constitute an actionable
breach of confidence. A duty of confidence is capable of surviving the
death of the confider and it is my view that in determining whether
disclosure would constitute an actionable breach of confidence, it is not
necessary to establish whether the deceased person has a personal
representative who would be able to take action. This is because it would
not be reasonable for a public authority to lay itself open to legal
action because, at the time of an information request, it is unable to
determine whether or not a deceased person has a personal representative,
but instead, I have to reach a hypothetical conclusion on whether it is
possible.

 

To do this, I looked at the necessary quality of confidence and can
confirm that information will have the necessary quality of confidence if
it is not otherwise accessible and if it is more than trivial. I am
satisfied that the information requested is personal, sensitive and was
important to the data subject and is therefore more than trivial. However,
this alone is not sufficient to indicate that the material has the
necessary quality of confidence, and I need to consider whether the
information is otherwise accessible.

 

Information which is known only to a limited number of individuals cannot
be regarded as being generally accessible to the general public and the
information you have requested has not been made publically accessible. I
am therefore satisfied that the withheld information has the necessary
quality of confidence required to sustain an action for breach of
confidence, and as such, I consider that this part of the confidence test
is met and went on to consider the obligation of confidence.

 

Even if information is to be regarded as confidential, a breach of
confidence will not be actionable if it was not communicated in
circumstances that created an obligation of confidence. When an individual
is under the care of professionals, they would not expect information
produced about their case to be disclosed to 3^rd parties without their
consent. I am therefore satisfied that an obligation of confidence is
created by the very nature of the relationship between the deceased and
professionals.

 

Having concluded that the information withheld in this case has the
necessary quality of confidence and was imparted in circumstances giving
rise to an obligation of confidence, I went on to consider whether
unauthorised disclosure would cause detriment to the deceased. As Mr
Williams is deceased, I do not consider that the disclosure of the
withheld information would cause any tangible loss, however, I do consider
that disclosure to the general public, which is what disclosure under the
terms of the FOI Act represents, would be an infringement of the deceased
person’s and his family’s privacy and such a loss can be a detriment in
its own right.

 

Finally I considered the public interest in disclosure. Although S41(1) is
an absolute exemption and does not need to be qualified by a public test
under the FOIA, case law suggests that a breach of confidence will not be
actionable in certain circumstances where a public authority can rely on a
public interest defence. I therefore considered whether there is a public
interest defence in the council disclosing information. The duty of
confidence public interest defence assumes that the information should be
withheld unless the public interest in disclosure exceeds the public
interest in maintaining the confidence.

 

Disclosure of any confidential information undermines the principle of
confidentiality which itself depends on a relationship of trust between
the confider and the confidant. It is important that individuals have
confidence that sensitive information will not be made publically
available following their death, as they may be discouraged from confiding
in public authorities if they did not have a degree of certainty that such
confidences would be respected. It is therefore my view that it is in the
public interest that confidences are maintained.

 

In your e-mail, you have advised that you have requested the information
as you are in court in November, and while I have noted your purpose for
seeking this information, I have interpreted it as representing a private
interest.

 

While I accept that you may be requesting the information for a legitimate
reason, I have to consider that there are proper routes for this private
interest to be addressed without recourse to the FOIA, under which any
disclosure is to the public.

 

In light of the above, I do not feel that there is sufficient public
interest in the information being disclosed into the public domain i.e.
the public interest in preserving the principle of confidentiality is much
stronger than that in disclosing the information.

 

Conclusion on application of Section 41(1):

 

It is my view that a duty of confidence would be capable of surviving a
person’s death and I am satisfied that the withheld information was
obtained from another person, has the necessary quality of confidence and
was imparted in circumstances giving rise to an obligation of confidence,
and that disclosure would result in detriment to the deceased and/or his
family. Having considered the circumstances of this case, I do not
consider that there would be a public interest defence in disclosing the
information and on this basis I find that section 41(1) has been correctly
engaged and the disclosure of the information to the public wold
constitute an actionable breach of confidence for the purpose of
S41(1)(b).

 

We are unable to provide the information requested as releasing it under
the Freedom of Information Act 2000 would mean putting it into the public
domain, making it accessible to everyone.

 

You have the right to appeal against my decision. The appeal must be made
without unreasonable delay to The Information Commissioner’s Office,
Wales, 2nd Floor, Churchill House, Churchill Way, Cardiff. CF10 2HH,
E-mail: [1][email address], website: [2]www.ico.gov.uk telephone: 0330
414 6421.

 

Regards

 

Christina Harrhy

Prif Weithredwr Dros Dro | Interim Chief Executive
Cyngor Bwrdeistref Sirol Caerffili | Caerphilly County Borough Council

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( 01443 864410
* [3][email address]

 

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