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EPiC Information Tribunal

Saturday, November 12th, 2011 at 12:27 pm Written by:

Just turned in my Reply to the Response concerning the personal privacy of wasting finite resources and cooking the planet through the operation of unnecessarily inefficient house insulation.



1. This is my response to the Commissioner’s 8 November 2011 reply to my 28 September 2011 Notice of Appeal against Decision Notice FS50384153 of 13 September 2011, in accordance with Rule 24 of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009.

2. My FOI request on 26 June 2010 was made to the DCLG for “any legal advice or opinions relating to the determination and the extent that EPCs of houses at the point of sale (or at any other time) are ‘potentially personal data’ within the meaning of the Data Protection Act.”

3. My appeal is based on the claims that: (a) this information is not subject to any litigation privilege, (b) legal professional privilege has been lost (waived) owing to the a substantial disclosure of the advice, and (c) there is a strong public interest factor in clarifying the interpretation of a statute (the DPA) as it applies to a pure public asset (the EPC database).

The purpose of the information and reason for my request
4. In all its consultation documents the DCLG has made clear its determination to treat Energy Performance Certificates (EPCs) as personal data under the Data Protection Act and its intention only to disclose their contents under very limited conditions.

5. This determination rules out a number of effective policy actions which the government could otherwise pursue in terms of its domestic energy conservation agenda, such as targeting improvements at low energy performance housing stock, and allowing estate agents to base their house price valuations on relative energy performance within the same neighbourhood.

6. This determination is wholly inconsistent with the way that similar house-related information (eg sale prices and planning applications) is handled.

7. I have expressed my hope several times that I could be satisfied by a partial disclosure of the introductory sections of the legal advice wherein the solicitor(s) and/or barrister(s) outlined the factors they intended to take into consideration. Release of this information would challenge my current suspicion based on the evidence that the advice is defective and misinformed because it lacks an adequate context.

Litigation privilege
8. Owing to the extreme precautionary nature of this advice, there is zero chance that it could be involved in legal action before a court. Had it instead advised in favour of the permissibility of publication, then it could have potentially been relied upon in court in the event that someone objected to publication of an EPC which concerned them. However, under the current circumstances, wrongful disclosure of EPC information would be prosecuted under Regulation 14 of The Energy Performance of Buildings (Certificates and Inspections) (England and Wales) Regulations 2007, which makes no reliance whatsoever on this legal advice.

9. The Information Commissioner’s counter-argument to my claim was given in paragraph 23 of the Decision Notice:

    The complainant said that he believes that there is no prospect of any legal proceedings and because of that maintaining the exemption is unreasonable. The Commissioner does not agree with the complainant’s argument. Firstly, it is not correct that there is no prospect of any legal challenge. One way this could arise is through a complaint to the Commissioner and the Tribunal for example, regarding the disclosure of the information.

10. The Tribunal is invited to clarify whether it considers its own hearings as constituting “legal proceedings” under Section 42 of the FOI Act. The consequence of a ruling that they were included would mean that every information refusal which gave rise to a right of appeal would be exempt under the litigation privilege.

LPP is waived
11. In addition to various pronouncements in the consultation documents, the main disclosure as to the contents of the advice can be found in the Small scale Privacy Impact Assessment as follows:

  • The definition of ‘personal data’ has a wide coverage. Someone is identifiable if their identity can be ascertained from the information held plus the results of reasonable inquiries, whether made by the controller or another. The Information Commissioner’s guidance on this issue refers to the EU Directive and states that whether or not the individual is identifiable or not will depend on ‘all the means likely or reasonably likely to be used either by the controller or by any other person to identify the person’. In our view, the combination of the address in the certificate and the availability of the electoral roll, which includes names and addresses, are sufficient to enable individuals to be identified.
  • However it is worth pointing out that the issue of whether or not this data is personal data is not clear cut. The information of course relates to a building not a person and is limited to the energy rating of that building and to recommendations for improving its energy efficiency. It is because a cross-check with other public records against the address on the Energy Performance Certificate (EPC) could easily reveal the name of the occupant that the data becomes personal.
  • The certificate itself concentrates very much on the house and talks in very general terms about its energy efficiency. On the other hand, we think it is significant that the sharing of EPCs will allow the recipient organisations to take certain action in relation to a particular individual i.e. they will put the EPC together with other information to decide that the house needs energy improvements and so the individual should be contacted. On balance by far the safest course of action is to treat the un-anonymised EPC as personal data.
  • This level of protection would need to be applied to DECs which relate to sole traders as they could be working from home and the information in the DEC would therefore relate to their home address which together with their name would be classed as personal information.
  • The Department has consulted the Information Commissioner on the question of disclosures from the register of energy performance certificates generally and the Commissioner’s view was that the information to be disclosed was not prima facie personal data. We are currently consulting with the Ministry of Justice in relation to the proposal. The Ministry of Justice have approved the approach taken in relation to the processing of personal data. We have chosen to treat this material as personal data and take the appropriate steps to comply with the Data Protection Act 1998 requirements for the handling of personal data.

12. As the above appears to contain the full leading argument, as well as the conclusions of the advice, I believe it is substantial.

13. The above disclosed advice is incomplete because it does not list any of the several obvious counter-arguments to the leading argument. The complete advice would show how each of these counter-arguments were dismissed on balance in the final conclusion.

14. The above disclosed advice applies logically without variation to other building related data, such as house price sales and planning applications, which are demonstrably not handled as personal information. The complete advice would provide reasons as to why this particular building related data set is special and must be treated to a higher degree of security than other building data.

15. The above disclosed advice explains how the address-level EPC data becomes personal data by the application of the electoral roll. However, the electoral roll is itself handled as personal data, yet is available to certain consumers of the data under controlled conditions for the conduct of their legitimate business. The complete advice would make reference to the actual conditions of availability of the electoral roll and provide a justification as to why the same level of control is considered inadequate for the EPC data.

16. The above disclosed advice does not acknowledge the remarkable journey of this so-called personal data, which is created by one person for the purpose of disposing of a property on the market, becomes public domain for a indeterminate period while the property is for sale, and then re-transforms itself into personal data of a different previously unknown person following the sale. The complete advice would acknowledge this unusual nature and comment on whether it was a unique case in the field of personal data.

17. The above disclosed advice appears to stray into matters of policy as to the desirability (or not) of facilitating the ability of private businesses to contact individuals for the purpose of providing services in relation to improving the energy performance of their homes. The complete advice would separate this policy matter from the legal issues and leave policy-makers with the freedom to determine the benefits a course of action which may or may not take account of well-established safe-guards such as the Telephone Preference Service.

18. The above disclosed advice expresses the view that the “safest course of action” is to treat EPCs as personal data. However, in the consultation documents, such as Making better use of Energy Performance Certificates, this decision is presented as the only course of action, which could potentially be a misrepresentation of the policy options that are legally available to the government.

19. The specific issues raised above are a direct consequence of the disclosed advice and would likely be answered by the complete advice. The answers to none of these issues calls for a greater degree of sensitivity as to their contents than has been applied to the disclosed advice. For this reason LPP should be waived for the complete advice.

Public Interest factor
20. Landmark Information Group reports a current total of 6,489,750 domestic EPCs lodged in the database up to September 2011. This corresponds to a significant group of people.

21. The current advice that EPCs should be classed as personal information results in a serious constraint on the potential for government action to unleash market forces in pursuit of a rapid and escalated increase in the energy efficiency of the private housing stock.

22. There is absolutely nothing tactical, strategic or timely in the nature in this advice. The advice was created in the course of routine business during the implementation of European Directive 2002/91/EC that mandated the existence of a new database.

23. As with every new database, there has to be a decision as to who should be allowed access to it and under what conditions. This requires a policy choice and a legal dimension. The policy choice includes whether to charge money for the data or give it away for free, while the legal dimension takes account of who owns the data (ie whose permission would have to be sought), any prior agreements that have been signed relating to its access, and what are the requirements of the law (eg the DPA).

24. In this case there are no owners or claimants on the data other than the government. The determination laying out under what circumstances this data can be legally shared should be a wholly uncontentious strictly routine matter as to the interpretation of a general Act of Parliament (the DPA) in its application to a wholly government controlled asset (the EPC database) that involves no other outside interests. The lack of transparency and resistance I have encountered relating this legal advice is utterly inappropriate and indefensible. I cannot comprehend its current status of confidentiality except in terms of standard behaviour and sheer force of habit.

25. I believe these factors listed above provide sufficiently strong countervailing considerations to override the inbuilt public interest in maintaining the exemption.

26. The Commissioner’s arguments against disclosure have for the most part been general and on the principles, rather than addressing the circumstances relating to this advice in particular. There have been gross over-simplifications of my case, a suggestion that my stated disagreement with the advice conflicts with my right of access, and the claim that this appeal to the Tribunal constitutes litigation.

27. I am content that this matter is resolved on the papers and for the DCLG to be joined to these proceedings.

12 November 2011

Well, I think it’s quite good, though I don’t expect it to win any prizes from the judges.

Here’s what winning a prize from the judges looks like, in Matthew Sinclair of the “TaxPayer’s Alliance” [Not Taxpayers and Not an alliance] -vs- Department of Energy and Climate Change in pursuit of economic costs negotiating documents taken by the British delegation to the Copenhagen climate conference: [link]

If this is like any of the other Taxpayer alliance projects I have looked into, the information Mr Sinclair would have so eloquently obtained would have been sliced, diced, taken out of context, and packaged into some kind of Government-Money-Waste disinformation bollocks in service of unfettered corporate power and death.

Mr Sinclair knows the deal, because he gets tickled by this thousand year old prank demonstrating the selling practices that his organization embodies every day of the week:


As the US magician-comedians Penn and Teller make clear in this classic clip, you need to be careful with environmental policy. It’s quite legitimate to be concerned about chemicals affecting what you eat and drink, but if you don’t find out more it’s easy to be lead astray and wind up signing a petition to ban water [Dihydrogen Monoxide].

And if you still don’t get where he’s coming from, check out this post where he whinges about the 50p tax rate on marginal income about £150k because those poor rich are so heavily leaned on they’ll have to limp off to Switzerland if they are hit by a private jet tax.

To show what he means, he illustrates it with a graph from The American Tax Foundation illustrating the:

Ratio of share of taxes of richest 10% to share of market income of richest 10%, by country, mid-2000s

Again the US topped the table with the highest ratio at 1.35. The UK also leaned relatively heavily on the rich though, he says.

What the hell does that mean? Is he saying we should be further down the chart like Sweden with its 60% personal tax rates?

Or maybe he’s pointing out that the countries on the right of the scale are the ones closest to end of the Monopoly game where everyone is bankrupt except for the winner who has all the money and owns the bank, the government, the politicians and funds the propaganda outlets like the Taxpayer’s Alliance who explain to the rest of us that it’s right that we are thrown into the gutter because we don’t own anything now and we had better learn to suck-up.

1 Comment

  • 1. Freesteel&hellip replies at 13th February 2012, 8:50 am :

    […] law waits for no man, once it gets going. This is Part 3 where Part 1 was the first response. I forgot to drop Part 2 in the blog, but no one is probably […]

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