Dear Enquirer,
FREEDOM OF INFORMATION ACT REQUEST
I refer to your Freedom of Information request in which you asked:
It is in the public domain that Northumberland County Councils Portfolio
holder for Corporate Services is in debt to the Council for £30,000plus
following his and his wife's Company Katie Kerr going into administration
during April 2020.
On 7th July 2020 a report was presented to Cabinet in the name of
Councillor Oliver it contained a new policy on managing debt including
NNDR.
Q.1 Has Councillor Oliver informed the Leader of Council of his current
standing with regard to his debt to the Council?.
Q.2 Has Councillor Oliver informed officers of the Council of his current
standing with regard to his debt to the Council?
Q.3 Was Councillor Oliver advised to change his declarations of interest
with regard to his debt standing with the Council if so when?
Q.4 Is the Council in the process of following the policy put through in
Councilor Oliver's name with him and his wife over this issue?.
Right of Access
Section 1(1) of the Act provides 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 (which Section
1(6) of the Act designates as the "duty to confirm or deny"), and
(b) if that is the case, to have that information communicated to him.
The right is to obtain access to the information itself and not to the
document or record which contains it.
The Act creates a general right of access to information held by public
authorities subject to various exemptions.
Duty to confirm or deny
Northumberland County Council neither confirms nor denies that it holds
the information relevant to your request as the duty in Section 1(1)(a) of
the Act does not apply by virtue of Section 40 of the Act.
A disclosure under the Freedom of Information Act is a release of
information to the world at large and not an individual requestor.
Therefore, simply confirming or not that such information, if any, were
held would disclose personal information about an individual.
Disclosure is refused under Section 40 of the FOI Act 2000 (personal data
other than that of the applicant). Any council tax or business rate
indebtedness by an Elected Member (or a company they are an officer of, or
to which their spouse has a connection) is Personal Data under the GDPR
and disclosing it would breach the principles of fair and lawful
processing set out in the General Data Protection Regulations and Data
Protection Act 2018.
Also, all matters pertaining to Councillor’s interests are published on
the NCC website:
http://committee.northumberland.gov.uk/D...
This should not be taken as an inference that the information you have
requested, does or does not exist.
Exemptions
The Freedom of Information Act sets out various exemptions to the right of
access.
In the present case the County Council takes the view that some
information is exempt under section 40, on the basis that it is personal
information. In this case the Authority relies on sections 40(5).
Section 40 - Personal information .
(1) Any information to which a request for information relates is exempt
information if it constitutes personal data of which the applicant is the
data subject.
(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 Data 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, or (ii) section 10
of that Act (right to prevent processing likely to cause damage or
distress), and (b) in any other case, that the disclosure of the
information to a member of the public otherwise than under this Act would
contravene any of the data protection principles if the exemptions in
section 33A(1) of the Data Protection Act 1998 (which relate to manual
data held by public authorities) were disregarded.
(4) The second condition is that by virtue of any provision of Part IV of
the Data Protection Act 1998 the information is exempt from section
7(1)(c) of that Act (data subject's right of access to personal data).
Public Interest Test Considerations
Section 40(5) is a qualified exemption which means that the Council is
required to apply a public interest test to determine whether or not it is
in the public interest to confirm or deny that information is held.
Public Interest Test Factors - Favouring Confirmation or Denial that the
Information is Held
Confirmation or Denial of the existence of the requested information would
enable the public to have a better knowledge of what information is
recorded by Northumberland County Council and therefore a better
understanding of the decision making process when it comes to the
disclosure of personal details.
Factors against confirmation or denial that the information is held
To confirm or deny whether personal information is held in response to a
request could publicly reveal information about an individual or
individuals, thereby breaching the right to privacy afforded to persons
under the Data Protection Act 2018.
Decision
The points above highlight the merits of confirming or denying that any
other information pertinent to this request exists.
Whilst the public interest principles of transparency and accountability
weigh heavily in favour of disclosure of information held by
Northumberland County Council, there is also a strong public interest in
maintaining confidence in the County Council with regard to its handling
of individual’s personal data.
Northumberland County Council cannot not process personal data in breach
of the Data Protection Act in order to satisfy a request for information
under freedom of information and the exemption under Section 40(5)(a) of
the Freedom of Information Act exists for this purpose. The decision in
this case therefore must favour the maintenance of the Neither confirm nor
Deny stance by the County Council.
However, this decision should not be taken as conclusive evidence that the
information you requested exists or does not exist.
Advice and Assistance
The County Council recognises its statutory duty to provide advice and
assistance under Section 16 of the Act.
Subject to the provisions of the Freedom of Information Act, the Council
is seeking to be transparent and open in its response.
Notice of Refusal
With the exception of the information disclosed, please treat this letter
as a Notice of Refusal as regards the information covered by the Section
40(5) Exemption.
Complaints
If you are unhappy with the way your request for information has been
handled, you can request an internal review by writing within 2 months
from the date of this response to the Information Governance Office:
Information Governance Office
Northumberland County Council
County Hall
Morpeth
NE61 2EF
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