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NFRS 2023 111 - Broken down appliance

You asked for

Request for CCTV, GPS data and speed data for the appliance that broke down whilst attending an incident on 12/12/2023 in Cropwell Butler due to flooding.

Our Response

Answer: -

  • Maximum Speed: 65km/h
  • Minimum Speed: 5km/h
  • Maximum Speed in the flood water: 15km/h
  • Minimum Speed in the flood water: 6km/h

In relation to the CCTV and GPS data, Nottinghamshire Fire and Rescue Service deems this information exempt by virtue of section 40(2) of the FOIA.

Section 40(2) of the FOIA provides that information is exempt from disclosure if it is the personal data of an individual other than the requester and where one of the conditions listed in section 40(3A)(3B) or 40(4A) is satisfied.

In this case the relevant condition is contained in section 40(3A)(a).This applies where the disclosure of the information to any member of the public would contravene any of the principles relating to the processing of personal data (‘the DP principles’), as set out in Article 5 of the General Data Protection Regulation (‘GDPR’).

The first step is to determine whether the withheld information constitutes personal data as defined by the Data Protection Act 2018 (‘DPA’). If it is not personal data then section 40 of the FOIA cannot apply.

Secondly, and only if I am satisfied that the requested information is personal data, I must establish whether disclosure of that data would breach any of the DP principles.

Section 3(2) of the DPA defines personal data as “any information relating to an identified or identifiable living individual”.

The two main elements of personal data are that the information must relate to a living person and that the person must be identifiable.

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.

Information will relate to a person if it is about them, linked to them, has biographical significance for them, is used to inform decisions affecting them or has them as its main focus.

In the circumstances of this case, having considered the nature of the withheld information, I am satisfied that the information relates to the data subjects, i.e. the drivers and crew on the appliance. Disclosing the footage (which does not contain audio) and geolocation data into the public domain could also identify these individuals. This information therefore falls within the definition of ‘personal data’ in section 3(2) of the DPA.

The fact that information constitutes the personal data of an identifiable living individual does not automatically exclude it from disclosure under the FOIA. The second element of the test is to determine whether disclosure would contravene any of the DP principles.

Article 5(1)(a) of the GDPR states that: “Personal data shall be processed lawfully, fairly and in a transparent manner in relation to the data subject”.

In the case of a FOIA request, the personal data is processed when it is disclosed in response to the request. This means that the information can only be disclosed if to do so would be lawful, fair and transparent.

In order to be lawful, one of the lawful bases listed in Article 6(1) of the GDPR must apply to the processing. It must also be generally lawful.

I consider that the lawful basis most applicable is basis 6(1)(f) which 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) of the GDPR in the context of a request for information under FOIA, it is necessary to consider the following three-part test:-

  1. Legitimate interest test: Whether a legitimate interest is being pursued in the requestfor information;
  2. Necessity test: Whether disclosure of the information is necessary to meet thelegitimate interest in question;
  3. Balancing test: Whether the above interests override the legitimate interest(s) orfundamental rights and freedoms of the data subject.

I consider that the test of ‘necessity’ under stage (ii) must be met before the balancing test under stage (iii) is applied.

In considering any legitimate interest(s) in the disclosure of the requested information under FOIA, I recognise that such interest(s) can include broad general principles of accountability and transparency for their own sakes, as well as case specific interests.

Further, a wide range of interests may be legitimate interests. They can be the requester’s own interests or the interests of third parties, and commercial interests as well as wider societal benefits. They may be compelling or trivial, but trivial interests may be more easily overridden in the balancing test.

In this case I have considered that the requestor may have a legitimate interest in viewing the information footage as they wish to establish what exactly happened to the fire appliance during the incident due to the cost to the public incurred to repair or replace the vehicle.

As I am satisfied that the ‘legitimate interest’ has been met and that I should now consider the ‘necessity’ of the disclosure.

‘Necessary’ means more than desirable but less than indispensable or absolute necessity. Accordingly, the test is one of reasonable necessity and involves consideration of alternative measures which may make disclosure of the requested information unnecessary. Disclosure under FOIA must therefore be the least intrusive means of achieving the legitimate aim in question.

I am satisfied in this case that there are no less intrusive means of achieving the legitimate aims identified. I will now move onto the balance between legitimate interests and the data subject’s interests or fundamental freedoms.

In considering this balancing test, I have taken into account the following factors:

  • the potential harm or distress that disclosure may cause;
  • whether the information is already in the public domain;
  • whether the information is already known to some individuals;
  • whether the individual expressed concern to the disclosure; and
  • the reasonable expectations of the individual

In my view, a key issue is whether the individuals concerned have a reasonable expectation that their information will not be disclosed. These expectations can be shaped by factors such as an individual’s general expectation of privacy, whether the information relates to an employee in their professional role or to them as individuals, and the purpose for which they provided their personal data.

It is also important to consider whether disclosure would be likely to result in unwarranted damage or distress to that individual.

Despite the information was recorded on an emergency service appliance (Fire Engine), this is not the same as disclosing the footage to the wider world, which is the premise of disclosure under FOIA. The information relates to the CCTV, GPS and speed data of the appliance in its response to flooding in the Nottinghamshire area which broke down due to engine flooding attempting to traverse the flood waters. The footage relates to the crew and the driver, who were performing their duties in their professional role, they would not have had a reasonable expectation that the footage would be permanently disclosed into the wider public domain. Disclosure would therefore be likely to result in distress to the individuals concerned.

Given the above conclusion that disclosure would be unlawful, I consider that I do not need to go on to separately consider whether disclosure would be fair or transparent.