Windrush Against Sewage Pollution v ICO and Environment Agency: declarations of interest for senior staff must be disclosed

The First-tier Tribunal (General Regulatory Chamber) has allowed an appeal by Ashley Smith, acting for Windrush Against Sewage Pollution, requiring the Environment Agency to disclose declarations of interest forms submitted by Deputy Directors and Area Directors.

The request, made in January 2024, sought copies of declarations of interest forms for Area Directors and Regional Directors from 1 January 2019 to the date of the request. The Agency interpreted this as covering Deputy Directors (including Area Directors) and Directors. Whilst the Agency accepted it should disclose information relating to the more senior Directors, it refused disclosure for Deputy Directors, relying on the personal data exemption under section 40(2) of the Freedom of Information Act 2000.

The Information Commissioner's Decision Notice upheld this position regarding Deputy Directors, concluding that whilst the appellant was pursuing a legitimate interest, the rights and freedoms of Deputy Directors prevailed in the balancing test required under data protection legislation.

The Tribunal's analysis

The Tribunal conducted a thorough review of the role and responsibilities of Deputy Directors, examining job descriptions and the Agency's own submissions. The evidence revealed that Deputy Directors hold relatively senior positions with significant responsibilities, including accountability for delivering targets and outcomes in their areas, managing multi-million-pound budgets, leading teams of hundreds of employees, handling major incidents, and maintaining relationships with influential stakeholders including politicians and local government bodies.

The Agency had argued that its internal procedures for managing conflicts of interest were sufficient to satisfy the legitimate interests being pursued, and that disclosure was therefore not necessary. The Tribunal rejected this argument, finding that internal procedures alone could not satisfy the public interest in transparency and accountability. Knowing that procedures exist is fundamentally different from knowing whether any given Deputy Director has an actual or potential conflict and what that conflict might be.

Legitimate interests and the balancing test

The Tribunal agreed with the Commissioner that the appellant was pursuing legitimate interests in seeking to ascertain whether relevant Agency staff have conflicts of interest and whether such conflicts are managed appropriately. This was particularly pertinent given the Agency's role in investigating water and sewerage companies.

On the crucial question of necessity, the Tribunal found that disclosure of the disputed information was reasonably necessary and proportionate. The Agency's argument that internal oversight by more senior staff constituted a 'lesser measure' was insufficient to meet the legitimate interests in public transparency and accountability.

Regarding the balancing test, the Tribunal departed from the Commissioner's approach. The Decision Notice had concluded that Deputy Directors, being less senior than Directors, would have lesser responsibilities and decision-making powers, and would therefore expect their declarations to remain private. However, the Tribunal found this analysis flawed. The actual role of Deputy Directors involved substantial responsibility, decision-making authority on potentially nationally significant matters, and explicit accountability to the public.

The Agency had not provided evidence demonstrating that Deputy Directors would have an expectation of privacy. Against this, several factors pointed towards an expectation of potential disclosure: the seniority and nature of their roles, the fact that the Agency is a public authority subject to FOIA, their accountability to the public, and the fact that their names already appeared on the publicly available organogram.

The Tribunal found no evidence that disclosure would cause unwarranted damage or distress to Deputy Directors. The Agency had not adduced any witness statements from affected individuals expressing concern about disclosure.

Fairness and transparency

The Agency argued that disclosure would be neither fair nor transparent because its privacy notice did not address how declarations of interest would be processed. The Tribunal was not persuaded. Critically, the Agency accepted that disclosure of Directors' declarations would be fair and transparent despite the same privacy notice applying. The only material difference was the individuals' expectations, which the Tribunal had already found were not established.

The Tribunal observed that if inadequacies in a privacy notice could be relied upon to prevent disclosure under FOIA, this would effectively circumvent the legislation. Public authorities should have privacy notices that cater for potential disclosure of employees' personal data under FOIA.

Scope and third-party data

The Tribunal clarified that the request covered all staff who held the relevant roles at any time during the period specified, not merely those in post at the time of the request. The Agency had initially misinterpreted the scope, and the Tribunal considered it remiss not to have sought clarification under section 16.

The Tribunal also noted that FOIA provides an entitlement to 'information' rather than specific documents, so the appellant was not entitled to copies of the actual forms themselves.

Importantly, the Tribunal recognised that declarations of interest might contain personal data of third parties other than Deputy Directors (such as relatives or friends mentioned in declarations). The Tribunal's findings regarding expectations and the balancing test applied only to Deputy Directors. The substituted decision notice permits the Agency to withhold personal data of other third parties under section 40(2).

Conclusion

The appeal was allowed. The Tribunal issued a substituted decision notice requiring the Agency to disclose declarations of interest for Deputy Directors and Area Directors (in addition to Directors as already ordered by the Commissioner), subject to the ability to redact personal data of third parties other than Deputy Directors and Directors. The disclosure must be made within 35 days, with failure to comply potentially being dealt with as contempt of court.

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