In a remarkable decision the Information Commissioner’s Office (ICO) has ruled that an MP’s letter to a local council about its parking policy should be withheld to protect the MP’s privacy – though there is no suggestion that the letter contained anything about the MP’s personal circumstances (ICO Decision Notice FS50530093).
The request, made in October 2013 was for a letter which Stephen Hammond, the Conservative MP for Wimbledon, had sent to a London Borough of Merton councillor about parking in Wimbledon Village. The council had previously cut the time that shoppers could park without charge from 20 to 10 minutes. The decision, taken by a minority Labour administration, was later reversed by the combined votes of opposition members.
Mr Hammond’s letter was sent to the cabinet member for environmental sustainability and regeneration. He circulated it within the authority, so it was clearly held by the council rather than the individual councillor.
The ICO held that because the letter was sent by Mr Hammond and contained his comments it was his personal data. Any information relating to an identifiable individual is their personal data, so that is uncontentious. However, information is only exempt (under section 40(2) of the FOI Act) if its disclosure would be unfair.
The fairness test depends on a number of factors including whether the individual had a reasonable expectation that it would not be disclosed, whether it related to their public or private life, the seniority of the individual’s public role, any damage or distress that might be caused and whether there is a legitimate interest in disclosure.
The ICO did not suggest that the letter contained anything about Mr Hammond’s own experience of parking in the area or anything about his or anyone else’s private affairs. It observed that in many communities small businesses object to local parking charges which make it more difficult to attract customers and that “In order to lobby for improvements to the local shopping experience, small businesses and local residents may enlist the support of their local representatives including their local MP.”
It acknowledged that there is a legitimate interest in revealing how Mr Hammond is engaging with his local council on this issue, which may be of interest not only to Wimbledon residents but to others facing the same issue. It added that there was nothing unprofessional or inappropriate in his comments.
However, Mr Hammond had been asked if he would agree to disclosure and had refused. The ICO said that although the public expect MPs to be open, MPs themselves generally expect their correspondence to be confidential. The refusal of consent plus this general expectation meant that Mr Hammond had a reasonable expectation that it would not be released. The information was therefore exempt.
This did not mean that all correspondence between MPs and public authorities will automatically be exempt, the ICO added – the circumstances of each case must be considered. Based on this case the prospects are obviously not good.
But can this decision be right? An MP’s letter is withheld to protect his privacy, even though it says nothing about his private life?
The decision becomes even more remarkable when you consider a number of matters not mentioned the decision notice.
First, Mr Hammond’s own web site had expressly urged Wimbledon residents to vote Conservative at the May 2014 local elections because of their policy on parking. Mr Hammond stated “I believe there are five distinguishing and clear reasons to vote CONSERVATIVE” one of which was to “End evening parking charges in Council’s town centre car parks and help local businesses”. That statement, which is still available on the MP’s web site, should have settled the matter in favour of disclosure. No reasonable MP could expect that, after urging electors to vote for his party because of a specific policy, he should be entitled to conceal what he has done to promote that policy.
Second, Mr Hammond has been prepared to share his views on parking in Wimbledon with the press. A March 2013 newspaper report on the reinstatement of the 20 minutes free parking said: “MP for Wimbledon, Stephen Hammond criticised the council for being “asleep on the job” and has said increased parking is still needed in the area. He said: “The imposition of only 10 minutes free parking and the removal of some spaces in Church Road has really hurt local retailers. I am glad the council has seen sense and is restoring the 20 minutes free but as yet there has been no publicity to confirm this and understandably everyone is confused.” If the MP himself does not regard his views on parking as too personal to reveal why should the ICO?
Third, the decision notice doesn’t mention that Stephen Hammond is and was a minister. Not just any minister but Parliamentary Under Secretary of State for Transport. There is a particular public interest in knowing what a transport minister says to a local authority in his area about transport matters, even if he’s writing on behalf of his constituents rather than the government. Is he, for example, urging this council to do something which complies with his own department’s policy – or the opposite? Yet from the decision notice you wouldn’t even know that he is a minister.
Fourth, its well established under FOI that public officials holding a senior or public facing position and acting purely in their public capacity are unlikely be protected under section 40, unless disclosure would have harmful consequences. A junior clerk’s comments might be withheld but not those of a senior official. Thus when an FOI request was made for correspondence between a member of the Welsh Assembly and the First Minister of Wales the ICO ordered disclosure despite the Assembly Member’s objections. The ICO concluded that their seniority, the fact that they were writing in their public capacities and that there was no evidence that disclosure would cause them damage or distress meant that it was not unfair. There is no sign of this robust approach in the present case.
Fifth, Mr Hammond was apparently lobbying his council over its policy. The Information Tribunal has held that there is a “strong public interest” in transparency about lobbying to allow counterbalancing views to be submitted and to dispel any suggestion of impropriety . So much weight is attached to this principle that the Upper Tribunal has ruled that Prince Charles’ efforts to lobby ministers should be revealed, although they too were technically his personal data . It concluded that the public interest in access to this was ‘at least as great’ as that in purely commercial lobbying. That decision was vetoed by the Attorney General though the Court of Appeal found the veto to have been used unlawfully and an appeal to the Supreme Court is pending .
If even Prince Charles’ correspondence is disclosable, despite his objections, why should the objection of an MP – who unlike the Prince is elected and supposed to be accountable – be enough to block access? An MP who is trying to influence public policy on behalf of his constituents is doing his job, not pursuing a personal interest. His privacy doesn’t come into it – and the ICO should have said so.
Notes Information Tribunal, EA/2007/0072, Department for Business, Enterprise and Regulatory Reform & Information Commissioner & Friends of the Earth, 29.4.2008, paragraph 117.  Evans v Information Commissioner,  UKUT 313 (AAC), paragraphs 209-210.  Evans v Information Commissioner, , EWCA Civ 254.