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18 February 2022
ATISN 16015 - FOI request re Heather burning licences
Thank you for your request which I received on 26/01/2022. You asked for:
- A copy of any burning license granted for Ruabon Moor, owned by the Wynnstay Estate, or to its acting agent for each of the years 2017 - 2022
- A copy of any correspondence relating to the issuing of those licenses.
- A breakdown of any breaches of licenses recorded or warnings given in relation to burning on those moors for each of the years 2017 - 2022.
A copy of the information I have decided to release is enclosed.
Please note, in relation bullet point three of the requested information, no licence breaches or warnings have been issued in relation to burning on Ruabon moor for the years 2017 – 2022.
I have decided that some of the information is exempt from disclosure under section 40(2) of the Freedom of Information Act, i.e. personal information of correspondents, and is therefore withheld. The reasons for applying this exemptions are set out in full at Annex 1 to this letter.
If you are dissatisfied with the Welsh Government’s handling of your request, you can ask for an internal review within 40 working days of the date of this response. Requests for an internal review should be addressed to the Welsh Government’s Freedom of Information Officer at:
Information Rights Unit,
or Email: Freedom.firstname.lastname@example.org
Please remember to quote the ATISN reference number above.
You also have the right to complain to the Information Commissioner. The Information Commissioner can be contacted at:
Information Commissioner’s Office,
However, please note that the Commissioner will not normally investigate a complaint until it has been through our own internal review process.
Application of exemptions/exceptions
The Freedom of information Act/Environmental Information Regulations provide a right for anyone to ask a public authority to make requested information available to the wider public. As the release of requested information is to the world, not just the requester, public authorities need to consider the effects of making the information freely available to everybody. Any personal interest the requester has for accessing the information cannot override those wider considerations.
I have decided to withhold the following information:
• Personal information of correspondents.
This Annex sets out the reasons for the engagement of section 40(2) of the Freedom of Information Act and our subsequent consideration of the Public Interest Test.
Engagement of section 40(2) (Personal Information) of the Freedom of Information Act
The Welsh Government believes that the personal information of officials and 3rd parties should be exempt from disclosure.
Section 40 sets out an exemption from the right to know if the information requested is personal information protected by the Data Protection Act and UK GDPR. Personal data is defined as:
“personal data” means data which relates to a living individual who can be identified from those data; or from those data and other information which is in the possession of, or is likely to come into the possession of, the data controller.
We have concluded that, in this instance, the names of the officials and other correspondents within the information requested amounts to personal data. Under Section 40(2) of the FOI Act, personal data is exempt from release if disclosure would breach one of the data protection principles. We consider the principle being most relevant in this instance as being the first.
The first data protection principle states:
Personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless—
(a) at least one of the conditions in Schedule 2 is met, and (b) in the case of sensitive personal data, at least one of the conditions in Schedule 3 is also met.
We consider that names of officials clearly falls within the description of personal data as defined by the DPA and that disclosure would breach the first data protection principle. The first data protection principle has two components:
1 Personal data shall be processed fairly and lawfully and
2. Personal data shall not be processed unless at least one of the conditions in DPA schedule 2 is met
Guidance from the Information Commissioner’s Office states:
- The starting point is to consider whether it would be fair to the data subject to disclose their personal data. The key considerations in assessing this are set out in the section on Fairness below.
- If disclosure would not be fair, then the information is exempt from disclosure. This approach was endorsed by the Court of Appeal in the case of Deborah Clark v the Information Commissioner and East Hertfordshire District Council where it was held: “The first data protection principle entails a consideration of whether it would be fair to disclose the personal data in all the circumstances. The Commissioner determined that it would not be fair to disclose the requested information and thus the first data protection principle would be breached. There was no need in the present case therefore to consider whether any other Schedule 2 condition or conditions could be met because even if such conditions could be established, it would still not be possible to disclose the personal data without breaching the DPA” (paragraph 63).
The Information Commissioner has issued guidance on whether release of names of officials in disclosed emails would be unfair, and thus in breach of the first principle of the DPA. The guidance states:
In assessing whether employees can have a reasonable expectation that their names will not be disclosed, key factors will include their level of seniority and responsibility and whether they have a public facing role where they represent the authority to the outside world.
Where the officials in question are not senior staff, do not have a public facing role and where they are acting entirely in an administrative capacity, I have concluded that they have a reasonable expectation that their names will not be disclosed. It is my view, therefore, that disclosure of their names would breach the first data protection principle, and thus are exempt from release under section 40 of the Freedom of Information Act.
Furthermore the names of third party correspondents are from individuals acting on behalf of others but who had no expectation that their information would be released into the public domain. It would not be fair processing to release their names into the public domain.
Although the names have been removed, we have set out to maintain the context of the exchanges by replacing the names with generic titles. These will match up across each item of correspondence.