Upper Tribunal Upholds Ruling to Protect Privacy in Debt Relief Order Case

[NAME] v [NAME] [2023] UKUT 130 (AAC)

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IN THE UPPER TRIBUNAL UT ref: UA-2022-000871-GIA ADMINISTRATIVE APPEALS CHAMBER

On appeal from First-tier Tribunal (General Regulatory Chamber) ([NAME])

Between: [NAME] Appellant - v –

[NAME] Respondent

Before: Upper Tribunal Judge Wright

Decision date: 5 June 2023

Decided after a remote (video) oral hearing on 20 April 2023

Representation: [NAME] represented himself

The respondent did not appear at the hearing

DECISION

The decision of the Upper Tribunal is to dismiss the appeal. The decision of the First-tier Tribunal dated 22 April 2022 (as amended on 13 May 2022) under case number EA/2021/0097 did not involve the making of any material error of law.

REASONS FOR DECISION

Introduction 1. This appeal concerns a number of requests [NAME] made to the [NAME] concerning why it had granted a Debt Relief Order to a third party who owed money to [NAME].

2. A Debt Relief Order is a way by which an individual can deal with their debts if they cannot afford to pay them. If granted, the Debt Relief Order means that certain debts do not need to be paid by the individual. It can be applied for via an “approved intermediary”, who is an authorised debt adviser. The requests 3. The first request was made by [NAME] on 27 December 2019 and asked the [NAME] about the steps it had taken to verify the [NAME] provided by

[NAME] v [NAME] [2022] UKUT 130 (AAC) UA-2022-000871-GIA

2 the third party prior to the [NAME] granting that third party a Debt Relief Order on 19 November 2019. [NAME] said he was making the request because he was concerned that others in his position may have lost because of the [NAME]’s promptness in issuing Debt Relief Orders “without having made essential checks”. He also requested, at the same time, to be informed of what further investigations the [NAME] performed after [NAME]’s objection and complaint.

4. The [NAME] is not itself a ‘public authority’ for the purposes of the Freedom of [NAME] Act 2000 (“FOIA”), but it is an executive agency of the Department for Business, Energy and Industrial Strategy and the latter is a FOIA public authority. I use ‘[NAME]’ to refer to the public authority for ease of reference in this decision.

5. As the First-tier Tribunal rightly summarised in its decision, [NAME] was (and remains) aggrieved by the grant of a Debt Relief Order (“DRO”) given to a particular individual with whom [NAME] had a dispute about money owed. The [NAME] provided by [NAME] led to the DRO being revoked.

6. The [NAME] responded to [NAME]’s requests of 27 December 2019 by saying that it held [NAME] falling within the scope of the requests but it considered the [NAME] was exempt from disclosure under section 40(2) of the Freedom of [NAME] Act 2000 (“FOIA”).

7. This led [NAME] to, in his words, rephrase the request to ask what steps the [NAME] takes, in general, to ensure that claims for a DRO have merit. By its response to this request, the [NAME] said that it held the requested [NAME], and it provided [NAME] with a description of the process followed and a link to the DRO process.

8. In asking the [NAME] to conduct an internal review of this response [NAME] further asked it to (i) inform him of the name of the debt adviser/authorised intermediary involved in his case, and (ii) notify him of “what checks are performed in these circumstances (before granting a DRO or if your circumstances change during a DRO)…and, if the info is allowable, were performed in this case, particularly after my objection where [an [NAME] employee in a letter dated 22 November 2019 had stated] ‘extensive investigations’ were performed”. I will term these the “further requests”.

9. In its response to the internal review, the [NAME] said that it did not hold any further [NAME] about the general steps that are taken to ensure a DRO application has merit. As for the further requests, it said, in respect of (i) in the further requests, that it held the name of the debt adviser but considered this was exempt from disclosure under section 40(2) of FOIA. As to part (ii) of the further requests, the [NAME] said that the checks that are performed in the circumstances had already been provided to [NAME], in response to his ‘rephrased’ request. This was therefore considered a repeat request and was refused under section 14(2) of FOIA. The remainder of part (ii) of the further requests was refused under section 40(2) of FOIA because it was specific to the third party’s case.

10. It is apparent from the above summary of [NAME]’s requests that, broadly, they fell into three categories. First, he wanted general [NAME] about how a DRO is awarded. Second, he wanted the name of the debt adviser, that is the authorised intermediary, who had assisted the third party to obtain a DRO. Third, [NAME] was

[NAME] v [NAME] [2022] UKUT 130 (AAC) UA-2022-000871-GIA

3 seeking [NAME] about the specific actions the [NAME] took in relation to the DRO applied for and obtained by the third party. The (sole) request with which these appeal proceedings is concerned 11. I emphasise these three categories of request as only one of them (the third) arises on this appeal to the Upper Tribunal. This is because [NAME] confirmed to the First-tier Tribunal that he was no longer seeking the name of the debt adviser/authorised intermediary, but just the organisation for which that person worked, which he had subsequently been provided with. Further, [NAME] succeeded in his appeal to the First-tier Tribunal about being disclosed further [NAME] by the [NAME] in respect of his request for general [NAME] about how a DRO is awarded.

12. It had become apparent during [NAME]’s investigation of [NAME]’s complaint against the [NAME]’s responses to his requests that the public authority held written guidance for staff in the small number of cases where objections or complaints are received against DROs. The [NAME] had not disclosed this guidance to [NAME] under FOIA as it had not been used in the case of the third party’s DRO and therefore was considered to be irrelevant to [NAME]’s requests. [NAME] effectively endorsed the [NAME]’s approach on this point by holding that the request for such guidance did not come within the scope of any of [NAME]’s requests. The First-tier Tribunal allowed [NAME]’s appeal on this point as it did not consider [NAME]’s requests were limited to [NAME] relating to the particular third party DRO of which [NAME] was particularly aggrieved. The First-tier Tribunal therefore substituted a decision notice in the following terms. “The [[NAME]] is required to take the following steps to ensure compliance with the legislation:- Reconsider [[NAME]’s] requests afresh on the basis that the scope of the requests includes all [NAME] (such as guidance to staff) which covers the steps carried out to ensure that claims have got merit including the steps to be taken in relation to contested DROs, not limited to the [NAME] used in relation to the specific DRO with which [[NAME]] has been involved. The [[NAME]] must take these steps within 35 calendar days of the date of this decision, and inform [[NAME]] of the outcome from taking those steps within the same time period.” 13. I have dealt with this point in some detail because [NAME] considers the [NAME] has failed to carry out the above steps ordered by the First-tier Tribunal and he (wrongly) thought this alleged failing would fall for consideration on this appeal. I advised [NAME] that this was not the case as all I was concerned with was his challenge to part of the First-tier Tribunal’s decision that did not find in his favour. That is the part of the decision that concerned the specific details of the third party’s DRO. Challenging a failure of a party to carry out the steps it had been ordered to carry out gives rise to separate proceedings under section 61(3) and (4) of FOIA and rule 7A of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2008. It is for [NAME] to investigate the basis of his making an application under that route.

[NAME] v [NAME] [2022] UKUT 130 (AAC) UA-2022-000871-GIA

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14. Reverting then to the issue on this appeal, the First-tier Tribunal dealt with it as follows: “39. The other ‘live’ issue in this case is whether disclosure of [NAME] relating to the specific DRO application with which the Appellant is involved, is covered by s40(2) FOIA and exempted from disclosure.

40. Applying the legal framework above, it is our view that the [NAME] sought is clearly the personal [NAME] of the third party applicant, and it is additional to the [NAME] currently available about the third party online.

41. We accept the Commissioner’s analysis in the decision notice that the Appellant has a legitimate interest in the disclosure of the [NAME], to enable him to discover how the third party was able to successfully apply for a DRO in the circumstances of the case. Given the availability of some [NAME] online, the process which led to the revocation of the DRO, and the availability of the [NAME] to investigate the procedures of the [NAME] this must lessen the Appellant’s legitimate interest in disclosure. We are also less sure than the Commissioner that disclosure would be necessary to fulfil this legitimate interest, but on balance we accept that there may be undisclosed [NAME] which it would still be necessary for the Appellant to have access to.

42. Therefore, to complete our analysis, it is necessary to balance these legitimate interests in disclosure to the Appellant against the data subject’s interests or fundamental rights and freedoms. In doing so, it is necessary to consider the impact of disclosure.

43. We agree with the Commissioner’s view that the [NAME] would have no expectation that the [NAME] would disclose details of his DRO application to the ‘world at large’ (as disclosure under FOIA cannot be restricted). We have viewed the withheld [NAME], and its disclosure would clearly interfere with the privacy rights of the [NAME] and be likely to cause him harm and/or distress. We note the Appellant’s allegation that the third party has been dishonest in his application, but it seems to us that, even if that is so, that does not remove the third party’s reasonable expectation that the [NAME] will not be disclosed.

44. Therefore, we accept that Appellant has a limited legitimate interest in accessing this [NAME], but in our view this is insufficient to outweigh the third party’s fundamental rights and freedoms relating to their private life, even if the [NAME] provided during the application process was not all true.” 15. The First-tier Tribunal’s reference in paragraph 40 to the “legal framework is a reference to the following earlier paragraphs in its decision. “12. Under section 1(1)(a) FOIA, a public authority is obliged to tell an applicant whether or not it holds the [NAME] requested. The ‘scope’ of the request itself is something to be interpreted by the public authority and the Commissioner, and now by the Tribunal.

[NAME] v [NAME] [2022] UKUT 130 (AAC) UA-2022-000871-GIA

5 13. There are also issues in this case which relation to the disclosure of [NAME] which is potentially ‘personal’ in nature. Section 40 (2) FOIA reads as follows:- (2) [NAME] to which a request for [NAME] relates is also exempt [NAME] if— (a) it constitutes personal data which does not fall within subsection (1) (personal [NAME] of the applicant], and (b) the first, second or third condition below is satisfied.

14. Section 3(2) of the Data Protection Act 2018 (DPA 2018) defines personal data as ‘any [NAME] relating to an [NAME]’.

15. The relevant condition (as referred to in s40(2)(b) FOIA) in this case is found in s40(3A)(a):- (3A) The first condition is that the disclosure of the [NAME] to a member of the public otherwise than under this Act— (a) would contravene any of the data protection principles.

16. Under s40(7) FOIA the relevant data protection principles in this case are to be found, first, in Article 5(1) of the General Data Protection Regulation (GDPR). Materially, Article 5(1)(a) reads:- Personal data shall be: (a) processed lawfully, fairly and in a transparent manner in relation to the data subject (‘lawfulness, fairness and transparency’).

17. Further, and relevantly for this case by Article 6(1) GDPR:- Processing shall be lawful only if and to the extent that at least one of the following applies: (a) the data subject has given consent to the processing of his or her personal data for one or more specific purposes; (f) processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data… 18. In relation to the tests to be applied at this last stage the principles are set out in [COMPANY] v IC and the Home Office [2014] UKUT 0563 (AAC) and explained as follows:- 33. In making his submissions [NAME] referred me to four authorities, being (in date order) decisions of the [NAME] Tribunal, the Divisional Court, the Supreme Court and the Upper Tribunal respectively. These were: (1) [NAME] v [NAME] (EA/2007/0060-0063, 0122-0123 and 10131) (abbreviated here to “[NAME] ([NAME] Tribunal)”); (2) [NAME] of the House of Commons v Information Commissioner and Others [2008] EWHC 1084 (Admin) (“[NAME] (Divisional Court)”);

[NAME] v [NAME] [2022] UKUT 130 (AAC) UA-2022-000871-GIA

6 (3) [NAME] v [NAME] [2013] UKSC 55 (“[NAME]”); and finally (4) [NAME] v [NAME] [2014] UKUT 310 (AAC) (“[NAME]”). The last, of course, was decided after the Tribunal had given its decision on the present appeal. 34. [NAME] helpfully set out eight principles or, as I prefer to call them, eight propositions, derived from this case law. I set them out below, including references to the relevant passages in the various decisions as authority for these propositions as (a) I endorse them; (b) they assist in resolving the present appeal; and (c) this taxonomy may well prove a useful roadmap for the Commissioner and other First-tier Tribunals when seeking to chart a path through the thicket of issues thrown up by Condition 6(1) of Schedule 2 in other cases… 35. Proposition 1: Condition 6(1) of Schedule 2 to the DPA requires three questions to be asked: “(i) Is the data controller or the third party or parties to whom the data are disclosed pursuing a legitimate interest or interests? (ii) Is the processing involved necessary for the purposes of those interests? (iii) Is the processing unwarranted in this case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject?” Authority: [NAME] at [18].

36. Proposition 2: The test of “necessity” under stage (ii) must be met before the balancing test under stage (iii) is applied. Authority: [NAME] ([NAME] Tribunal) at [58], [NAME] at [18] and [NAME] at [29].

37. Proposition 3: “Necessity” carries its ordinary English meaning, being more than desirable but less than indispensable or absolute necessity. Authority: [NAME] (Divisional Court) at [43] and [NAME] at [26]- [27].

38. Proposition 4: Accordingly the test is one of “reasonable necessity”, reflecting the European jurisprudence on proportionality, although this may not add much to the ordinary English meaning of the term. Authority: [NAME] (Divisional Court) at [43], [NAME] at [27] and [NAME] at [26].

39. Proposition 5: The test of reasonable necessity itself involves the consideration of alternative measures, and so “a measure would not be necessary if the legitimate aim could be achieved by something less”;

accordingly, the measure must be the “least restrictive” means of achieving the legitimate aim in question.

[NAME] v [NAME] [2022] UKUT 130 (AAC) UA-2022-000871-GIA

7 Authority: [NAME] ([NAME] Tribunal) at [60]-[61] and [NAME] at [27].

40. Proposition 6: Where no Article 8 privacy rights are in issue, the question posed under Proposition 1 can be resolved at the necessity stage, i.e. at stage (ii) of the three-part test. Authority: [NAME] at [27].

41. Proposition 7: Where Article 8 privacy rights are in issue, the question posed under Proposition 1 can only be resolved after considering the excessive interference question posted by stage (iii). Authority: [NAME] ([NAME] Tribunal) at [60]-[61] and [NAME] at [25].

42. Proposition 8: The Supreme Court in [NAME] did not purport to suggest a test which is any different to that adopted by the [NAME] Tribunal in [NAME] ([NAME] Tribunal).

Authority: [NAME] at [19]-[20] and [NAME] at [26].” The Upper Tribunal’s grant of permission to appeal 16. Upper Tribunal Judge Macmillan (as she then was) gave [NAME] permission to appeal against the First-tier Tribunal’s decision on 22 August 2022. She did so for the following reasons. “12 [NAME] proposes two grounds of appeal. Both relate to the FTT’s conclusions in relation to [the requests asking to be informed of the steps the [NAME] took the investigate the DRO application of the third party] and both, in essence, concern the approach taken to balancing [NAME]’s legitimate interests against the 3rd party’s rights and interests. The first proposed ground is that the FTT should have afforded less weight to the 3rd party’s rights and interests because the 3rd party signed a fraudulent declaration in order to obtain the DRO. [NAME] asserts in addition that a great deal of [NAME] relating to the 3rd party’s DRO application is already in the public domain and, by inference, that ‘the cat is already out of the bag’.

13. The second proposed ground is that there is a strong public interest in publishing the [NAME], because the steps IS took to investigate the 3rd party’s DRO application were clearly inadequate. [NAME] submits that he was initially informed by IS that it had carried out an “extensive investigation” of the 3rd party’s application. However, [NAME] was able to identify evidence available online of the 3rd party’s financial assets which led to the DRO being withdrawn.

14. The FTT’s decision provides a sufficient outline of the process it has followed when reaching its decision in relation to s.40(2). The FTT reminded itself of relevant guidance provided by the Upper Tribunal in [COMPANY] v IC and the Home Office [2014] UKUT 0563 (AAC), and of the eight propositions [NAME] in this decision from previous authorities. The FTT noted that the first proposition, derived from the Supreme Court’s decision in [NAME] v [NAME] [2013] UKSC 55, is that the test for

[NAME] v [NAME] [2022] UKUT 130 (AAC) UA-2022-000871-GIA

8 lawfulness of processing as set out in article 6(1)(f) may be distilled into the following pertinent questions: (i) Is the data controller or the third party or parties to whom the data are disclosed pursuing a legitimate interest or interests? (ii) Is the processing involved necessary for the purposes of those interests? And (iii) Is the processing unwarranted in this case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject?” 15. The FTT approached these questions as follows [Judge Macmillan then set out paragraphs 41-44 of the First-tier Tribunal’s decision].

16. It is arguable that the FTT may have made an error in its approach to question (i), namely by attaching weight to [NAME]’s legitimate interest in seeking disclosure of the personal data rather than treating this question as a binary issue. (See, by way of contrast, the approach taken by the Upper Tribunal to the issue in [NAME] v [NAME] [2014] UKUT 310 (AAC) at paragraphs 23 – 25.) Further, and potentially in the alternative, the FTT may arguably have made an error by considering issues relevant to question (ii) – whether disclosure was reasonably necessary for the purposes of [NAME]’s interests given that he had already accessed various remedies – when determining the answer to question (i).

17. Although it does not follow that either error (if made) was necessarily material to the outcome of [NAME]’s appeal, on the face of it the proposed ground of appeal may have some force, albeit only in relation to the overall approach taken by the FTT to the balance of interests.” I therefore grant permission to appeal. 18. [NAME] is now invited to address the appeal. [NAME]’s views are also sought on whether, in the context of an article 6(1)(f) balancing exercise, any distinction should be drawn between the existence of a positive expectation by the data subject that personal data will not be disclosed, and a more neutral position whereby the data subject had no expectation that it would be disclosed. (See paragraphs 33 & 34 of [NAME] of the House of Commons v Information Commissioner and Ors, [2008] EWHC 1084 (Admin).) Both approaches are taken interchangeably in [NAME]’s Decision Notice.” The parties’ arguments on the Upper Tribunal appeal 17. [NAME] has been content on this appeal to set his arguments out in writing and did not attend the oral hearing of the appeal. He, rightly in my judgment, set out that the appeal relates to the balancing of interests for and against disclosure of personal [NAME] under section 40(2) of FOIA. 18. [NAME] argues that the potential errors of approach [NAME] in the grant of permission to appeal in respect of the First-tier Tribunal’s approach to the first question distilled from the [NAME] case were not material to the First-tier Tribunal’s decision as it had answered this question in [NAME]’s favour, as it had the second [NAME] question. It was only if both

[NAME] v [NAME] [2022] UKUT 130 (AAC) UA-2022-000871-GIA

9 of those first two ‘[NAME]’ questions were answered in [NAME]’s favour that the third question and the balance of the competing interests could arise. [NAME] argues that the only issue that concerns [NAME] on this appeal is whether the First-tier Tribunal approached the balance of the competing interests correctly, and the First-tier Tribunal’s approach to any logical prior issues is therefore irrelevant to this appeal.

19. In any event, it is argued, by [NAME], that the First-tier Tribunal did not wrongly approach or conflate the first two questions under [NAME]. He argues that the First-tier Tribunal recognised in the first sentence of paragraph 41 of its decision that [NAME] question (i) is a binary one of “Is there a legitimate interest in disclosure”. The second sentence of paragraph 41 was commenting on the strength of that interest but was doing no more than foreshadowing the balance to be struck in [NAME] question (iii). Nor did the First-tier Tribunal wrongly import issues from [NAME] question (ii) in its question (i) consideration. The concern appeared to arise from the second and third sentences in paragraph 41 of the First-tier Tribunal’s decision, but any additional points there raised were, again, only foreshadowing the balance of interests under question (iii) in [NAME].

20. As for the point raised in the grant of permission to appeal, about the nature of any expectation the third party may have had about his [NAME] remaining private, [NAME] considers that that no distinction should be drawn as a matter of principle between different bases for such an expectation. The balancing of the interests under section 40(2) of FOIA will be case-specific and, accordingly, the strength of the expectation and the weight to be accorded to it will vary depending on the facts of each individual case.

21. Focusing then on [NAME]’s grounds of appeal, [NAME] argues that they have no merit in error of law terms as they were doing no more than seeking to have the factors under the balance of interests re- evaluated. 22. [NAME] in his written and oral arguments before me did not make any argument on the points raised in paragraph 16 in the grant of permission to appeal. He focused on his grounds of appeal, as well as points concerning compliance with the First-tier Tribunal’s substituted decision notice. In short, [NAME] argued, first, that less weight should have been afforded to the third party’s privacy interests because that third party had been found to have committed fraud. He relied on page A28 of the First-tier Tribunal’s open bundle as showing a finding of proven fraud. [NAME] argued, secondly, that more weight ought to have been given to the need for transparency and accountability because, he considers, the [NAME]’s checks had been shown to be inadequate. He argued, finally, that there was no evidential basis for what the First-tier Tribunal said in the first sentence of paragraph 43 of its decision about the third party having no expectation that the [NAME] would have disclosed details of his DRO application to the world at large. Discussion and Conclusion 23. I agree with [NAME] that the First-tier Tribunal’s approach to the first question distilled from the [NAME] case cannot have led it to have committed any material error of law in the decision to which it came on 22 April 2022. Given the lack of any contested argument on this point, I prefer to answer this on the basis that as far as this appeal by [NAME] to the Upper Tribunal is

[NAME] v [NAME] [2022] UKUT 130 (AAC) UA-2022-000871-GIA

10 concerned nothing in the First-tier Tribunal’s approach to question (i) under [NAME] disfavoured [NAME] in the First-tier Tribunal’s decision. 24. [NAME]’s concern throughout these proceedings has been with whether the First-tier Tribunal wrongly (in error of law terms) approached the balance of the competing interests arising under section 40(2) of FOIA. That balancing of interests point could only have been reached if he satisfied question (i) (and (ii)) under [NAME], which the First-tier Tribunal found he did. Once that point has been reached, I cannot see how any potential error the First-tier Tribunal may have made in answering [NAME] question (i) affected its approach to the balance of interests under [NAME] question (iii), and no one before me argued that it did. Nor did the grant of permission to appeal proceed on the basis that there was a necessary nexus between questions (i) and (iii) under [NAME]: see paragraph 17 of that grant.

25. I not able to identify that the correct identification of the nature of the third party’s expectation that his personal [NAME] would not be disclosed made any difference to the First-tier Tribunal’s approach to the balance of the competing interests in this case. As for [NAME]’s argument that there was no evidential basis for what the First-tier Tribunal said about the third party and expectation in paragraph 43 of its decision, it is important to recognise that the First-tier Tribunal’s finding was about an absence of an expectation that the relevant requested [NAME] would disclosed rather than a positive expectation that it would not be disclosed. In that context, the evidence before the First-tier Tribunal, including that found in the withheld [NAME] to which this particular request related, in my judgment provided a sufficient basis for the First-tier Tribunal’s conclusion that the third party had no expectation that the details in his DRO application would be disclosed by the [NAME]. [NAME] was unable to point to any evidence showing that the third party would have had such an expectation.

26. This then leaves [NAME]’s two grounds of appeal. I can deal with these quite shortly because I do not consider there is anything in them in error of law terms. 27. [NAME]’s first ground is that the First-tier Tribunal failed to accord any sufficient weight to the fact that the third party’s application for a DRO had been proven to be fraudulent and/or it should have accorded less weight to the third party’s interests in privacy because of this fraud. There are three main problems with this argument. First, the weight to be accorded to evidence is classically a matter for the specialist fact-finding First-tier Tribunal. Such a finding as to weight will only be disturbed in an error of law jurisdiction if no rational First-tier Tribunal could have arrived at it. That argument has no basis here. Second, the evidence on page A28 of the First-tier Tribunal’s open bundle does not support, as [NAME] claims it does, that the third part had acted fraudulently in making the DRO application. Third, the First-tier Tribunal took the allegation of fraud into account and weighed it in its consideration of the competing interests for and against disclosure of the third party [NAME], but it found that the third party’s rights to privacy (given the undisclosed [NAME] contained sensitive personal [NAME] of the third party) outweighed any competing interests held by [NAME]. That was the First-tier Tribunal’s job – to weigh the competing interests and decide where the balance came down in favour of disclosure or not – and in doing so it took account of all relevant matters. [NAME]’s argument here is no more than a merits reargument that the First-tier Tribunal ought to have come down in favour of disclosure because [NAME] considers that the

[NAME] v [NAME] [2022] UKUT 130 (AAC) UA-2022-000871-GIA

11 balance of interests ought to have fallen in his favour. However, it is no part of the Upper Tribunal’s error of law jurisdiction to redecide evidential matters.

28. The same conclusion holds true of [NAME]’s second ground of appeal. This ground of appeal is that there was a strong public interest in publishing the details of the third party’s DRO application because it had been inadequately investigated by the [NAME]. Again, however, this is just a rerun of the arguments made by [NAME] about the weight the First-tier Tribunal ought to have attached to the competing interests. Having considered myself the withheld [NAME] to which this request related, I can state clearly that the First-tier Tribunal was entitled to conclude that disclosure of the [NAME] would clearly have interfered with privacy rights of the third party that he would have expected would remain confidential and would be likely to cause him harm and/or distress had that [NAME] been made public. It was for the First-tier Tribunal to weigh and consider whether the factors [NAME] articulated as providing good reasons for making the [NAME] publicly available outweighed the privacy rights of the third party in relation to this requested [NAME]. That balancing included, as [NAME] points out, the First-tier Tribunal’s view that the strength of the interest in revealing potential missteps in the [NAME]’s investigation was lessened by the existence of other means of obtaining transparency and accountability (particularly through the [NAME]). Those interests were then weighed against the nature of the private [NAME] sought (about the third party) and the weight to be attached to keep that private [NAME] private. The First-tier Tribunal carried out this assessment and weighing of the relevant evidence and it did not err in law in balancing the competing interests as it did. 29. [NAME]’s argument here amounted in the end to an argument that he considered greater harm would be caused to others by the [NAME] continuing to make DRO’s on an inadequately [NAME] basis than could arise for the third party by his private [NAME] being disclosed. [NAME] argued in this respect that the third party continuing to buy guitars and other musical instruments showed the third party remained a capable person. These, however, are no more than arguments on the evidential merits of the case which [NAME] was able to make to the First-tier Tribunal. They show no error of law in the First-tier Tribunal’s consideration of the privacy rights of the third party that attached to the relevant requested [NAME].

30. It is for all these reasons that this appeal is dismissed.

Approved for issue by Stewart Wright

Judge of the Upper Tribunal

On 5th June 2023.