Andrew White v Information Commissioner Appeal Dismissed

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2. Andrew White v The Information Commissioner

Andrew White v The Information Commissioner

[2026] UKFTT 599 (GRC)

Andrew White v The Information Commissioner

[2026] UKFTT 599 (GRC)

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1. In this decision the following terms have the following meanings:

| Certificate | the final certificate issued in relation to the Property under s51 Building Act 1984; |
| Commissioner | the Information Commissioner; |
| Council | the council of the London Borough of Croydon; |
| Decision Notice | the notice dated 9 September 2025, number IC-361512-G7G5, setting out the decision of the Commissioner in this matter; |
| DPA | the Data Protection Act 2018; |
| EIR | the Environmental Information Regulations 2004; |
| Property | the property identified in the Request; |
| Request | the request submitted by the Appellant dated 12 September 2024, which is the subject of the Decision Notice; |
| Rules | the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 |

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1. This is an appeal against the decision of the Commissioner as set out in the Decision Notice.

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History and procedural matters

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1. The Tribunal received and considered an open bundle of documents; a separate private bundle of documents containing personal information regarding the Appellant and a closed bundle which were the subject of an application by the Commissioner under Rule 14, and a skeleton argument prepared by the Appellant dated 2 March 2026. The Tribunal has had regard to all evidence and submissions in these documents, whether or not these are referred to in this decision.

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1. The Commissioner’s Rule 14 application had not been dealt with by the time of the hearing, and I have dealt with it in directions since the hearing.

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1. The Appellant is aware that the only closed material is the Certificate which is the subject of his Request. The Commissioner has provided no closed evidence or submissions.

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1. The Tribunal notes the requirement, as expressed in Barrett v Information Commissioner and Financial Ombudsman Service [2024] UKUT 107 (AAC), to minimise the fullest extent possible the disadvantages in the Appellant’s position as not being party to the closed material, and in the Tribunal’s view it has done so in this case.

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1. The Appellant attended an oral hearing by Cloud Video Platform. The Commissioner does not routinely attend appeal hearings, and did not attend on this occasion.

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1. By Rule 36, a hearing can proceed in the absence of a party if the Tribunal is satisfied that the party had notice of the hearing and that it is in the interests of justice to proceed.

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1. The Tribunal is satisfied that these requirements were met in this case, and that this was a fair and just way to decide the Appeal.

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Background

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1. On a 12 September 2024 the Appellant made the Request to the Council which was in the following terms:

I am writing to formally request a copy of the Final Certificate issued by Stroma Building Control, in relation to the works carried out under Initial Notice [number] at [the Property], with an Application Completion Date of 8th October 2020.

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1. On 6 January 2025 the Council responded to the Request, stating that it would withhold the Certificate, citing regulations 12(5)(d) and 13 EIR.

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1. On the same day, the Appellant responded to the Council requesting an internal review of its refusal.

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1. On 6 February 2025 the Council responded to the Appellant’s internal review request, stating that it would uphold its initial refusal.

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1. On the same day, the Appellant complained to the Commissioner.

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1. The Commissioner carried out an investigation and issued the Decision Notice on 9 September 2025. The Commissioner upheld the Council's refusal on the basis of regulation 13 EIR and did not consider regulation 12(5)(d).

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1. The Appellant appealed to the Tribunal.

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The Appeal

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1. In his notice of appeal, the Appellant raises seven separate grounds which may be summarised as follows:

a. neither the Council nor the Commissioner considered the Appellant’s disability, in breach of the public sector equality duty (the duty on public authorities to have due regard to certain matters relating to protected characteristics, pursuant to s149 Equality Act 2010);

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b. the Commissioner wrongly treated information relating to companies as personal data;

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c. the Commissioner did not consider the possibility of disclosure with redactions;

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d. the Commissioner did not carry out a structured analysis under Article 6(1)(f) UK GDPR;

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e. having referred to a separate decision notice in relation to a request to the Council for very similar information, the Commissioner did not take into account factors which distinguish this case from that case;

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f. the Commissioner did not consider ongoing environmental harm;

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g. the Commissioner did not apply specific provisions of the EIR which the Appellant says operate in his favour.

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1. The Appellant’s skeleton argument expands on some of these arguments.

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1. The Commissioner submits that the Decision Notice is correct for the reasons given in it. In summary these were:

a. that his “established position is that this type of information about a private property Constitutes the personal data of its owner or occupier”;

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b. that in this case, the Property is occupied by at least some individuals, and therefore the Certificate constitutes personal data;

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c. that the Council provides access to building control and planning information via statutory registers, and so the disclosure of the Certificate in this case is not necessary.

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Relevant law

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1. The Request was considered pursuant to the EIR. There was no dispute that this was the correct regime. The Tribunal agrees that the EIR is correct regime as the Requested Information falls within limbs (a), (b) and (c) of the definition of “environmental information” in regulation 2 EIR.

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1. Regulation 5 EIR provides as follows:

Duty to make available environmental information on request

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5. —(1) Subject to paragraph (3) and in accordance with paragraphs (2), (4), (5) and (6) and the remaining provisions of this Part and Part 3 of these Regulations, a public authority that holds environmental information shall make it available on request.

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(2) Information shall be made available under paragraph (1) as soon as possible and no later than 20 working days after the date of receipt of the request.

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1. Regulation 2 EIR defines terms used in the EIR. It provides that:

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“environmental information” [means] any information in written, visual, aural, electronic or any other material form on—

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(a) the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms, and the interaction among these elements;

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(b) factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment referred to in (a);

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(c) measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in (a) and (b) as well as measures or activities designed to protect those elements;

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[…]

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1. The general disclosure requirement in regulation 5 is subject to a number of exemptions.

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1. So far as material for this appeal, regulation 12 EIR provides:

12. —(1) Subject to paragraphs (2), (3) and (9), a public authority may refuse to disclose environmental information requested if—

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(a) an exception to disclosure applies under paragraphs (4) or (5); and

(b) in all the circumstances of the case, the public interest in maintaining the exception outweighs the public interest in disclosing the information.

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(2) A public authority shall apply a presumption in favour of disclosure.

(3) To the extent that the information requested includes personal data of which the applicant is not the data subject, the personal data shall not be disclosed otherwise than in accordance with regulation 13.

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[…]

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(5) For the purposes of paragraph (1)(a), a public authority may refuse to disclose information to the extent that its disclosure would adversely affect—

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[…]

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(d) the confidentiality of the proceedings of that or any other public authority where such confidentiality is provided by law.

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1. So far as material for this appeal, regulation 13 EIR provides for an exemption as follows:

13. (1) To the extent that the information requested includes personal data of which the applicant is not the data subject, a public authority must not disclose the personal data if—

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(a) the first condition is satisfied, or

(b) the second or third condition is satisfied and, in all the circumstances of the case, the public interest in not disclosing the information outweighs the public interest in disclosing it.

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(2A) The first condition is that the disclosure of the information to a member of the public otherwise than under these Regulations—

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(a) would contravene any of the data protection principles, or

(b) would do so if the exemptions in section 24(1) of the Data Protection Act 2018 (manual unstructured data held by public authorities) were disregarded.

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[…]

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1. “Personal data” in the EIR has the same meaning as in Parts 5 to 7 DPA. Section 3(2) DPA provides that “personal data” means “any information relating to an identified or identifiable living individual” to which Part 2, Part 3 or Part 4 DPA applies.

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1. “The data protection principles” in the EIR means the principles set out in Article 5 of the United Kingdom General Data Protection Regulation and in sections 34(1) and 85(1) DPA. The principle directly relevant in this Appeal is the first data protection principle, the requirement that the processing of personal data be lawful, fair and transparent. That principle is expanded in s86 and Schedule 9 DPA.

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1. The processing of personal data is lawful only if and to the extent that at least one of the conditions in Schedule 9 DPA is met. The only such condition potentially relevant for the purposes of this Appeal is that in paragraph 6 of Schedule 9 (the equivalent provision to Article 6(1)(f) UKGDPR, to which the Appellant refers), that the processing is necessary for the purposes of legitimate interests pursued by a third party or parties to whom the data is disclosed.

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1. In South Lanarkshire Council v Scottish Information Commissioner [2013] UKSC 55 (“ South Lanarkshire”), the UK Supreme Court stated at [18] in the context of the predecessor provision, condition 6 in Schedule 2 to the Data Protection Act 1998, that this test involved three steps:

a. is the data controller or the third party or parties to whom the data are disclosed pursuing a legitimate interest or interests?

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b. is the processing involved necessary for the purposes of those interests?

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c. is the processing unwarranted in this case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject?

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1. The Tribunal has not identified any other relevant exemptions in its deliberations.

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Evidence and submissions

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1. The Property is described in the Decision Notice as a three-storey block of eight self-contained residential units.

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1. The Appellant is the owner and resident of a property which adjoins the Property. He believes that construction works at the Property have not been carried out appropriately, and that as a result his own property is suffering damage. He has had the matter investigated by structural engineers, who have provided a report which supports these concerns.

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1. The Appellant submits that disclosure of the Certificate will show what works were signed off by the building inspector, which will help the Appellant to understand the background to the situation.

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1. The Appellant is registered as severely sight impaired with the Council, and submits that he cannot safely or reliably investigate external structural conditions by sight, and relies on documents and professional evidence to understand risks affecting his home.

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1. The Commissioner submits that his Decision Notice was correct; in particular, that the Certificate is personal data and, while he accepts that the Appellant has a legitimate interest in the disclosure of the Certificate, the Commissioner does not accept that disclosure would be necessary to further that interest.

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Discussion

Regulation 13

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1. In order to decide whether the regulation 13 exemption applies, the Tribunal must decide the following issues:

a. whether the Certificate constitutes personal data;

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b. if it does, whether the Appellant has a legitimate interest (or interests) in its disclosure;

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c. whether disclosure is necessary to further any such interests;

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d. whether the Appellant's interest in disclosure outweighs the interests of the data subjects; and

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e. whether processing any such personal data is fair and transparent.

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1. The Appellant’s submissions regarding the Council and the Commissioner reportedly failing to comply with the public sector equality duty do not assist his case. The Tribunal’s role is to consider whether the Commissioner’s decision contains an error of law. Whether or not the Commissioner had due regard to the matters set out in section 149 Equality Act 2010 is not within the scope of the Tribunal’s decision.

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Is the Certificate personal data?

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1. The Appellant submits that the Certificate is not personal data, on the basis that the Property is owned by a company, and the development was carried out by another company, the latter of which is in liquidation; and that no living individual is identified or identifiable from the Certificate.

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1. The Commissioner submits that information which is indirectly linked to a person can still be personal data if it identifies or impacts the individual, and that this can apply to property related data.

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1. The Decision Notice makes reference another of the Commissioner’s decision notices, which was the subject of the Tribunal’s decision in Whiteside v Information Commissioner [2025] UKFTT 00442 (GRC), in relation to the withholding by the Council of a building control final certificate in relation to a private property (unconnected to this appeal). In Whiteside the Tribunal found that, because the certificate related to a residential property and included details of the building including information about individual residences, this constituted personal data of the living individual(s) who can be identified.

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1. The Commissioner’s position comes close to an argument that building control certificates of this type will always be personal data. The Tribunal does not necessarily agree, but it is not necessary to decide this point for the purposes of this appeal.

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1. The Tribunal is not bound by decisions of the First-tier Tribunal in previous cases, but is bound to apply the same law as it applies from time to time. Each case must be considered on its own facts.

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1. The Appellant says that he is content for the Certificate to be disclosed without any names, signatures or contact details of any individuals.

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1. The connection between the Certificate and any living individual maybe tenuous, but remoteness is not an element of the test for whether information is personal data. Rather the test is whether the data relates to a living individual, in the sense that they can be identified, directly or indirectly, from the data. In Whiteside the Tribunal set out how living individuals residing in a particular property could be identified in connection with a building control certificate (at [21]) and the Tribunal accepts that the same principles apply in this case.

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1. To put it in context, a building control certificate may (or may not, depending upon the circumstances) have an effect on the value or marketability of a property or an interest in it. Where a property is a residential property in which a person has an interest, the potential for an impact on an individual from its disclosure will be clear.

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1. The Tribunal finds that the Certificate does constitute personal data of those who live at the property. The Certificate also contains the name and signature of a surveyor employed by the company which produced it, and this is considered separately at paragraphs [58-60] below.

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Legitimate interest

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1. The Commissioner accepts that the Appellant has a legitimate interest, for the purposes of the data protection principles, in the disclosure of the Certificate. The Tribunal agrees. The Appellant has a private interest as the owner of a neighbouring property which may be affected by the efficacy of works at the Property, and there is also a public interest in the performance of building control functions.

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Necessity

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1. The Commissioner submits that the Decision Notice is correct in that disclosure of the Certificate is not necessary to further the Appellant’s interest in disclosure. The Commissioner explicitly applies the reasons in his separate decision notice number IC-302534-T2H1, which was considered in Whiteside. In that case, the Tribunal found that disclosure was not necessary because of the availability of information regarding building control on statutory registers, and because of the availability of complaints procedures and/or judicial review to pursue alleged failures.

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1. The Commissioner’s response to this appeal is regrettably thin on this point, and declines to expand on the Decision Notice.

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1. The Appellant submits that the relevant statutory registers do not provide copies of building control certificates, and that he has not been able to obtain equivalent information. The Tribunal does not have detailed evidence regarding the Council’s complaints procedures (and the Council is not party to this appeal), but accepts the Appellant’s evidence that this route is not appropriate. Judicial review would inevitably entail significantly greater cost and delay than a FOIA request.

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1. Accordingly, the Tribunal does not accept that there are other appropriate routes to the same information, and does accept that disclosure of the Certificate would be necessary to further legitimate interests of the Appellant.

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Balancing of interests

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1. Having concluded in the Decision Notice that disclosure was not necessary, the Commissioner did not go on to consider the balancing of interests, and declines to do so in his response.

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1. The Tribunal considers that the relevant privacy interests are those of the owners and occupiers of the Property for the time being (to the extent that these are living individuals). Having reviewed the Certificate in closed material, the Tribunal notes that there is very little information regarding individual residences within the certificate. In Whiteside, the Tribunal said that “[t]he information within a Final Certificate for a residential block of flats will include details of the building in which the individual residences are comprised and information about the residences themselves. That will include details of the layout of the building, albeit in limited detail”. This implies a greater level of detail that is available about the Property from the Certificate, and the Tribunal considers that any loss of privacy as a result of disclosure of the Certificate would be minimal.

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1. On the other hand, the benefit to the Appellant of having potentially relevant information to explore and, he will hope, resolve structural issues relating to his property is significant. It is also the case, as noted by the Tribunal in Whiteside, that there is a general public interest in transparency regarding building control.

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1. The Tribunal expects that the Certificate, or at least information confirming its material contents, ought to be available to any potential purchaser of the property, or of an interest in the property, as part of a conveyancing process. Although disclosure under EIR constitutes disclosure to the world, and so without any framework of confidentiality, it is not the case that the Certificate is an item of information in respect of which a data subject would be likely to have a reasonable expectation that it would never be disclosed.

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1. For these reasons, the Tribunal finds that the interests of any data subjects are outweighed by the interests of the Appellant in disclosure.

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Fairness and transparency

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1. Having decided that disclosure of the Certificate in response to the Request would be lawful, the Tribunal does not consider that there are any issues of fairness or transparency which would mean that disclosure would be in breach of the data protection principles.

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Surveyor’s details

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1. As noted above, the Certificate contains the name and an electronic signature of an individual surveyor. This is clearly personal data of that individual.

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1. The Appellant submits that the Commissioner did not consider the possibility of disclosure of the Certificate subject to redactions for identifying information, and the Commissioner submits that redactions are irrelevant given that, in his view, the Certificate as a whole is exempt from disclosure.

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1. In relation specifically to the surveyor’s name and signature, the Tribunal considers that this information is exempt on regulation 13 EIR, as it would not be lawful for the Council to disclose it. This is on the basis that the Appellant does not have a legitimate interest in this information (the Certificate having been prepared by this individual on behalf of a named company, the name of which the Appellant already knows). Accordingly, the Tribunal does not go to consider the other aspects of the relevant tests.

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Confidentiality of proceedings

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1. The Decision Notice notes that the Council also seeks to rely on regulation 12(5)(d) EIR, regarding confidentiality of proceedings.

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1. The Decision Notice does not consider this exemption, and the Commissioner declines to do so in his response to the appeal.

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1. The Tribunal is not in a position to decide this issue in these circumstances, but notes that it has seen no evidence which would support the application of this exemption. The Tribunal is sceptical that it can be applied in this case.

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Conclusion and decision

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1. The Tribunal notes the Commissioner’s submission to the effect that information of this kind is regularly withheld under exemptions from disclosure relating to personal data.

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1. The Tribunal does not dispute that such exemptions may be applicable in relevant cases. However, for the reasons given in this decision, the Tribunal considers that in this case the exemption in regulation 13 EIR does not apply.

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1. Accordingly, the Tribunal considers that the Decision Notice was wrong in law, and makes the order set out in the substituted decision notice above.

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Signed Date:

Judge Maton 16 April 2026

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End of document

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