Dear Mr Nunn,

I refer to your email of 21 December 2017, in which you made the following
request for information:-

Dear Wirral Metropolitan Borough Council,

A previous Freedom of Information Request informed me that the contract of
Stewart Halliday would be extended by three months until the end of 2017.

Will you please confirm that there will be no further contract extension
for this man?

Will you also inform me of the total cost to the Wirral Community Charges
payers of his time on the Wirral?

Yours faithfully,

I consider that the information that you have requested  is exempt
information under section 40 (2) and (3) of  the Freedom of Information
Act 2000 (“FOIA”).

‘Personal data’ is defined in Section 1 of the Data Protection Act 1998,
as follows:-

o “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.

Section 40 (2) and (3) of FOIA provides as follows:-

(2) Any information to which a request for information relates is also
exempt information if—

(a)it constitutes personal data which do not fall within subsection (1),
and

(b)either the first or the second condition below is satisfied.

(3)The first condition is—

(a)in a case where the information falls within any of paragraphs (a) to
(d) of the definition of “data” in section 1(1) of the [1]M1Data
Protection Act 1998, that the disclosure of the information to a member of
the public otherwise than under this Act would contravene—

(i)any of the data protection principles.

The information requested includes personal data of which you are not the
data subject. I consider that the first condition set out in section
40(3)(a) applies, that disclosure of the information would contravene any
of the data protection principles. I consider that the disclosure of the
requested information would contravene the first data protection
principle, that personal data shall be processed fairly and lawfully, and
shall not be processed unless at least one of the conditions in Schedule 2
of the Data Protection Act 1998 is met.  I consider that none of the
conditions in Schedule 2 would be met, the most significant condition
being that contained in Schedule 2, condition 6 (1) which is in the
following terms:-

“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”

I have had regard to guidance produced by the ICO, “Personal information
(section 40 and regulation 13), Version:1.4 20160718.

I refer to paragraph 52 of that guidance which states,” The public
authority must consider the nature of the information and weigh up the
level of distress and/or damage likely to be caused, as the higher this
is, the more likely that the disclosure would be unfair. The public
authority must also be satisfied that the adverse consequences would
result from disclosure of the personal data; it must be possible to show
that there would be a connection between the disclosure and the adverse
consequences.”

I refer to the case of Goldsmith International Business School v The
Information Commissioner and The Home Office [2014[ UKUT 0563 (AAC) which
is a decision of the Upper Tribunal and binding on the lower courts. Judge
Wikely gave a detailed analysis of the test of “reasonable necessity” when
considering condition 6 (1)  and endorsed eight propositions concerning
this condition, derived from case law.

Paragraphs  35,36,37 and 38  of the decision provide the first four
propositions:-

“Proposition 1: Condition 6 (1) of Schedule 2 to the DPA  (Data Protection
Act) requires three questions to be asked:-

(i)                  Is the data controller or the third party or parties
to whom the data are disclosed pursuing a legitimate interest or interests
?

(ii)                Is the processing involved necessary for the purposes
of those interests?

(iii)               Is the processing unwarranted in this case by reason
of prejudice to the rights and freedoms or legitimate interests of the
data subject.?”

“Proposition 2: The test of “necessity” under stage (ii) must be met
before the balancing test under stage (iii) is applied”

“Proposition 3 :”Necessity” carries its ordinary English meaning, being
more than desirable but less than indispensable or absolute necessity.”

“Proposition 4 : Accordingly the test is one of “reasonable necessity,
reflecting the European jurisprudence on proportionality, although this
may not add much to the ordinary English meaning of the term.”

I consider that you as a third party are pursuing a legitimate interest.
However I consider that that legitimate interest has been lessened by the
tone of your request in asking the Council to confirm whether “there will
be no further contract extension for this man?”

I have had regard to the guidance issued by the ICO “Dealing with
vexatious requests (Section 14) 20151218 Version 1.3. Paragraph 56 states
that “The context and history in which a request is made will often be a
major factor in determining whether the request is vexatious.” Having
regard to your previous requests about the same individual and also having
regard to comments you have made in the public domain concerning this
individual, I consider that the tone of part of this request for
information is potentially vexatious.

I consider that the processing of personal data ie the release of personal
data in respect of  Mr Halliday is unwarranted  by reason of prejudice to
the rights and freedoms or legitimate interests of him as the data
subject. I refer to paragraph 58 of the Goldsmith decision where Judge
Wikely states “ While it is proper to recognise the public interest in the
disclosure of official information as being relevant under condition 6, we
think it important not to lose sight of the principal object of the DPA,
which is to protect personal data and allow it to be processed only in
defined circumstances. The first part of condition 6 can only be satisfied
where the disclosure is ‘necessary’ for the purposes identified.”

I consider that disclosure of the requested information would be
unwarranted having regard to the prejudice that would be caused to the
rights and legitimate interests of Stewart Halliday.

This part of Section 40(3)(a) of FOIA is not subject to the public
interest test.

I am therefore refusing your request for information on the basis that the
exemption contained in Section 40(2) and (3)(a) of FOIA apply. You have
the right to ask for an internal review  which should be sent to
[2][Wirral Borough Council request email]. If you are dissatisfied with this
response to your request for information, you have the right to complain
to the Information Commissioner, but would normally be expected to exhaust
the internal review process before complaining to the Commissioner. The
address is:-

The Information Commissioner’s Office,

Wycliffe House,

Water Lane,

Wilmslow,

Cheshire SK9 5AF

Tel -0303 123 113

[3]https://ico.org.uk/global/contact-us/

Kind Regards,

Rosemary Lyon,

Solicitor,

Law and Governance,

0151-691-8141

[4][email address]

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References

Visible links
1. View the commentary text for this item
http://www.legislation.gov.uk/ukpga/2000...
2. mailto:[Wirral Borough Council request email]
3. https://ico.org.uk/global/contact-us/
4. mailto:[email address]

Dear Mr. Nunn,
Thank you for your recent email in which you asked for an internal review into the handling of your FOI request in relation to 'Will Stewart Halliday leave the Council at the end of 2017?'
Please take this email as Council's response to your request for an internal review.

I have reviewed your original request and the detailed response you received, your questions were:
1. Will you please confirm that there will be no further contract extension for this man?
2. Will you also inform me of the total cost to the Wirral Community Charges payers of his time on the Wirral?

In relation to question 1. I can advise you that Mr. Halliday is contracted to the Council for up to a further 6 months from January 2018.

In relation to question 2., I uphold the original decision to withhold this information.
The original responder went into comprehensive detail on why the Council can rely on the exemption contained within Section 40(2) and (3) of the Freedom of Information legislation and I do not intend to repeat this explanation in any specific detail. In summary it would not be fair and lawful processing of the personal data in question to disclose it into the public domain and disclosure would, I believe, contravene the first principle of the legislation.

If you are dissatisfied with the contents of this internal review then you have the right to complain to the Information Commissioner - contacts details here www.ico.org.uk/global/contact-us/
Yours sincerely

Jane Corrin
Records and Information Manager
Business Services - Digital

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