Objectors Personal Details - Planning Applications and Letters of Objection - Public forum - Planning Advisory Service (PAS)

Hi Melanie

A link to the ICO's decision can be found here:

https://ico.org.uk/action-weve-taken/enforcement/basildon-borough-council/

Hope helpful.

Thanks

Jo

Hello Melanie,

I am sure that by now you have read the decision and have more of a view as to what information led to the fine.  The decision refers to personal information (name, age, address) as well as sensitive personal information (health issues and educational needs of named individuals) being present in the supporting statement.

Appendix 1 to the ICO / PARSOL guidance states that:

"10 In general information published on the Internet in respect of planning applications will not be sensitive11. In these cases it is likely that paragraph 5(d) of schedule 2 will provide the relevant condition for putting personal data on the Internet. That is:

The processing is necessary for the exercise of any other functions of a public nature exercised in the public interest by any person.

11 Where sensitive information is involved, as might be the case if a planning appeal is being made and the health of the applicant is an issue, a schedule 3 condition will need to be met. One possible condition will be consent (paragraph 1 of schedule 3). This is unless the local authority can demonstrate that paragraph 7(1)(b) of schedule 3 applies, i.e. that:

The processing is necessary for the exercise of any functions conferred on any person by or under an enactment.

12 In cases where a local authority has concerns that it might be publishing sensitive personal data on the Internet the authority should consider discussing the issue with the individual concerned before doing so.”

In this case, our argument was that the information was submitted freely by the applicant in order to support their application to modify the limits imposed by a personal condition attached to a prior consent allowed at appeal.  That previous appeal decision included reference to the names, addresses, health issues and educational needs of the then current residents on the site, and identified these matters as being sufficient when viewed as a whole, to demonstrate very special circumstances capable of allowing inappropriate development in the Green Belt.  The personal condition named (and thus personally identified) the principal occupants permitted.

The identities of the new, expanded group of occupants, their health and educational needs are central to the principle of development (they are the principle reason why the original development was allowed), and thus our position was that this accorded with the ICO advice in the PARSOL guide.  The application was submitted including an application form which included the standard text notifiying applicants that supporting information may be published online.  We have no reason to believe that the applicant had any doubt that the information they submitted as part fo their application woudl be disclosed, as it had done in relation to the previous appeal.

The recent ICO monetary penalty seems to sidestep that allowance / consideration, and the need to publish this information as part of the exercise of the function to assess the planning application.

It is very difficult to identify where the line is here, as the penalty arose through both personal and sensitive personal information.  The former is unavoidable in pretty much every application , where the name and address of the applicant is generally obvious (in housholder applicatiosn at least).  For applications involving personal conditions, again, it is essentially impossible to not identify the relevant individuals.  In regard to sensitive information, the PARSOL guide as a whole and the ICO  appendix appear to allow the LPA to decide what is relevant and necessary to publish, where some warning has been offered as to how that information will be treated and publicised.  The judgement against Basildon throws that up in the air, so I cannot advise anyone what to do until an appeal is decided or new guidance is issued.

All I would suggest though, is that every LPA has a written data protection policy and targeted training for the staff who screen / check the application documents.  The PARSOL Guidance advocates double checking with an applicant, to ensure that they really want to have the information submitted to be published (even though they will have signed forms or submitted online, and seen at least one, if not several notices, reminding them that the information they submit may or will be placed online( the Planning Portal require the user to tick a declaration acknowledging that "this application will be made available as part of a public register and also be published on the authoritiy's website" ).  We referred staff to the PARSOL guidance, and had a general data protection policy, but clearly this is not enough from the ICO's perspective.. 

Richard