Compensation payment

27 May 2022

Dear

Request for Information – ATISN 16304

Thank you for your request for information dated 10 May. 

Information requested

All available documents relating to the Minister for Climate Change’s decision in April/May this year to agree to payment of a third party claim regarding a cycle accident where the Welsh Government accepted liability and has paid compensation to the claimant.

You have also asked where the accident happened, when, why the Welsh Government accepted liability and how much compensation was paid 

Our response

I have searched our records and established that there have been no cases of compensation paid for bicycle accidents where WG has accepted liability.

We do however understand which incident is referred to above.  Regarding the decision, WG reached a settlement in relation to the claim but this was not on the basis of admitting liability.  I have concluded that the information relating to this decision, where the accident happened and how much compensation was paid is exempt from disclosure under S40 – Personal Data, of the Freedom of Information Act 2000, and is therefore withheld.  The reasons for applying this exemption are set out in full at Annex A to this letter.

Next steps

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, 
Welsh Government, 
Cathays Park, 
Cardiff, 
CF10 3NQ 
or Email: Freedom.ofinformation@gov.wales 

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, 
Wycliffe House, 
Water Lane, 
Wilmslow, 
Cheshire, 
SK9 5AF. 

However, please note that the Commissioner will not normally investigate a complaint until it has been through our own internal review process.

Data Protection Officer
Welsh Government
Cathays Park                      
CARDIFF
CF10 3NQ
Email:DataProtectionOfficer@gov.wales
 
Yours sincerely

Annex A

The Freedom of information Act provides 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.

We have decided to withhold the following information: 

• The personal data contained in the information you have requested under Section 40 of the Freedom of Information Act 2000 (FoIA), personal data.

This Annex sets out the reasons for the engagement of Section 40 of the FoIA. 

Engagement of S40(2) – Personal Data

The Welsh Government believes the personal data contained in the information being released with this request should be exempt from disclosure

Section 40(2) of the Freedom of Information Act 2000 (FOIA), together with the conditions in section 40(3)(a)(i) or 40(3)(b), provides an absolute exemption if disclosure of the personal data would breach any of the data protection principles.

‘Personal data’ is defined in sections 3(2) and (3) of the Data Protection Act 2018 (‘the DPA 2018’) and means any information relating to an identified or identifiable living individual. An identifiable living individual is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of the individual.

We have concluded that, in this instance, all of the information contained within the information caught by your request contains third party personal data.  Namely this refers to the location of the accident and amount of compensation paid. Disclosing of any information would be likely to lead to the subsequent identification of the claimant.

Under Section 40(2) of the FOIA, personal data is exempt from release if disclosure would breach one of the data protection principles set out in Article 5 of the UK GDPR.  We consider the principle being most relevant in this instance as being the first. This states that personal data must be:

“processed lawfully, fairly and in a transparent manner in relation to the data subject”

As part of the settlement we have undertaken to keep this personal information of the third party confidential, and disclosure of this information, should it identify the third party, would clearly represent unfair processing.

The lawful basis that is most relevant in relation to a request for information under the FOIA is Article 6(1)(f) of the UK GDPR. This states:

“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, in particular where the data subject is a child”.

In considering the application of Article 6(1)(f) in the context of a request for information under FOIA it is necessary to consider the following three-part test:

1. The Legitimate interest test: Whether a legitimate interest is being pursued in the request for information;
2. The Necessity test: Whether disclosure of the information/confirmation or denial that it is held is necessary to meet the legitimate interest in question;
3. The Balancing test: Whether the above interests override the interests, fundamental rights and freedoms of the data subject.

Our consideration of these tests is set out below:

1. Legitimate Interest Test

The Welsh Government recognises there is a legitimate interest in being able to identify the parties involved in any communication in order to follow the flow of that communication.  As this relates to personal data and not communication, the Welsh Government cannot identify any other legitimate interest in you or the public receiving the personal data captured by your request. 

In this case by disclosing the location and amount of compensation paid it would be very easy through investigation of other information in the public domain to identify the person in question.  

2. Is disclosure necessary?

The Welsh Government is of the view that it is not necessary to disclose the personal information caught by your request.  Doing so would jeopardise the anonymity of person involved in the accident, but there is no legal or over-riding necessary public interest that would make the disclosure necessary.

3. The Balancing Test

As it has been concluded that there is no necessity to disclose the personal data of another individual, the fundamental rights and freedoms of the affected third party prevail in this instance and releasing the information cannot be justified under Article 6(1)(f). Disclosure of the third party information would constitute unfair processing of the personal data, and would breach an agreement in the settlement to keep the information confidential.