Neutral citation number: [2025] UKFTT 01373 (GRC)
Case Reference: FT/EA/2024/0075
First-tier Tribunal
(General Regulatory Chamber)
Information Rights
Decision given on: 8 January 2026
Before
JUDGE HUGHES
MEMBER SAUNDERS
MEMBER SHAW
Between
MAHMOOD SHERALI BHOGADIA
Appellant
– and –
[1] THE INFORMATION COMMISSIONER (IC)
RESPONDENTS
Substituted Decision Notice
To: Judicial Appointments Commission
Address: 5th Floor Clive House
70 Petty France
London
SW1H 9EJ
Decision (including any steps ordered)
The Judicial Appointments Committee disclose to the Appellant MAHMOOD SHERALI
BHOGADIA the number of the Muslim candidates recommended in JAC00006.
The appeal is dismissed except for the information in relation to exercise JAC00006
In considering this case the tribunal considered the bundles and submissions of the parties.
REASONS
On 20 June 2023 the Appellant made a nine part request to the Judicial Appointments Committee (JAC) concerning three years of competitions conducted by the JAC under the title:
FOIA request about unsuccessful candidates
“Unsuccessful Muslim candidates – High Court, deputy High Court, specialist CJ and CJ exercises for 2020, 2021, and 2022”
Please provide information about how many individuals identifying themselves as Muslim in respect of the selection exercises referred to above applied to be appointed to the positions advertised for those exercises?
Please indicate how many of such Muslims were interviewed for those positions and were appointed to the positions.
Decisions about candidates
Please provide information about how many candidates in the last 5 years in any selection exercise who were successful at interview were not recommended for appointment?
Please specify how many such candidates identified themselves as being from a BAME or Muslim background?
Please provide the reasons why they were not recommended for appointment?
Please provide information about how many candidates in the last 5 years in any selection exercise who were unsuccessful at interview were nonetheless recommended for appointment?
Please specify how many such candidates identified themselves as being from a BAME or Muslim background?
Please provide the reasons why they were recommended for appointment?
Please specify the number of instances (by reference to the relevant selection exercises) when JAC had to apply the "equal merit" policy and the reasons why?2…
The request was for information about selection competitions involving a considerable number of individual applicants, some of whom may have applied to several competitions.
The JAC replied on 4 July 2023 dealing with the request in three parts, giving explanations of the process, providing certain information, drawing attention to published information and explaining why it was withholding some information it held:
“Questions 1 and 2
I can confirm that the JAC holds this information requested.
For the selection exercises named, of which there were 9, 49 candidates applied for the roles who identified themselves as Muslim. Of these, 22 were shortlisted for selection day with 8 recommended for appointment by the Judicial Appointments Commission.
Information in relation to each specific exercise is exempt from disclosure under section 40(2) of the FOIA, because it contains personal data.
…
Questions 3,4,5,6,7,8
The information that has been specifically requested is not held by the Judicial Appointment Commission.
…;.
Question 9
Details of the number of instances where the JAC has applied the Equal Merit provision (EMP) is mentioned in the JAC annual reports, which are available on our website
For the last 5 years which have been published the information is as follows
2021-22 - 25 recommendations were made following EMP and 183 candidates were shortlisted due to EMP
2020-21 – 7 recommendations were made following EMP and 133 candidates were shortlisted due to EMP
….
Annex 2 to this letter provides further details for the 5 years on the exercises where the EMP provisions were applied.”
The JAC relied on section 40(2) (personal information) of FOIA to withhold the information. Following an internal review the Appellant complained to the Information Commissioner (ICO) challenging the use of s40(2) to withhold information relating to parts 1,2 and 9 asserting that individuals could not be identified. The ICO investigated. During the course of the investigation the JAC disclosed further information, noted that it could have relied on s21 (information already available to the requester) but had broken the information down further to assist the Appellant and continued to rely on s40(2). On 13 February 2024 , in relation to questions 1 and 2, it disclosed:
Previously, exercise-level data was not provided to you, due to concerns that doing so would risk the identification of individuals, owing to the small numbers involved, and this would be in breach of our statutory obligations under the General Data Protection Regulation and/or the Data Protection Act. Data relating to religion or belief is only published in JAC statistics on an aggregated basis, rather than for individual exercises, partly for this reason. However, having reflected further on the risks involved, and having consulted analytical colleagues responsible for producing the JAC’s statistics, I am now of the opinion that the risk of identification associated with publishing the numbers of applicants and individuals shortlisted is minimal for four of the exercises requested. In considering the risk of identification of individuals we also need to take account of the pool of potential applicants for a particular exercise and the risk that combining sources of data might increase the risk of identification. For the other five exercises, having considered these factors I judge the risk of identification to be too great. Therefore, I provide below a table with these details for four exercises, as well as the aggregated figures previously provided to you.
Unfortunately, I am still not able to provide the number of Muslim recommendations for each exercise, since the identities of individuals appointed to these roles are usually made public, and therefore there is an increased risk of identification from the figures. These figures are therefore suppressed in the tables below, as indicated by an asterisk, along with those for the five smaller exercises mentioned above
High Court, Deputy High Court, Specialist CJ and CJ exercises for 2020, 2021, and 2022 (Muslim Applicants/Shortlisted/Recommended)
On 21 February 2024 in his decision notice IC-255469-Q8H1 the ICO upheld the JAC’s position. The IC considered that given the small numbers of individuals in certain categories “a motivated intruder” disclosed and other information which would be accessible to the Appellant. would be able to identify individuals from the information
The Appellant challenged the IC’s decision. In his appeal he was critical of the officer who conducted the ICO’s investigation. He further argued that:
“Neither the FOIA response nor the DN states how Muslim candidates may be identified from the information provided to me.
…
The first point to note is that no information whatsoever is provided by the JAC about how giving this information would identify individual candidates. Secondly, the JAC did after my complaint to the ICO provide some of the information I requested, so the obvious point here is that if this information was thought to expose a person's private data, the question that must be asked is why was it disclosed to me. Thirdly, note, please that there is no reference to other information ("the motivated intruder" test) by the JAC which would be accessible to me from which I might be able to identify individual candidates.
Moving to the ICO's response, the "motivated intruder" is referred to for the first time in the DN. It is not clear to me whether the position of the ICO is that providing the information requested to me will by itself identify Muslim candidates or whether I might have access to other information that could do this. No information is given about this. This can only be because there can be no way in which Muslim candidates could be identified by me, whether simply from the information provided to me by the JAC or a combination of that information and other information accessible to me.”
The Appellant challenged the applicability of s40(2) and the possibility that disclosure of the information would lead to personal information about an identifiable individual being released.
In resisting the appeal the IC emphasised recital 26 to the GDPR:
The principles of data protection should apply to any information concerning an identified or identifiable natural person. Personal data which have undergone pseudonymisation, which could be attributed to a natural person by the use of additional information should be considered to be information on an identifiable natural person. To determine whether a natural person is identifiable, account should be taken of all the means reasonably likely to be used, such as singling out, either by the controller or by another person to identify the natural person directly or indirectly. To ascertain whether means are reasonably likely to be used to identify the natural person, account should be taken of all objective factors, such as the costs of and the amount of time required for identification, taking into consideration the available technology at the time of the processing and technological developments. The principles of data protection should therefore not apply to anonymous information, namely information which does not relate to an identified or identifiable natural person or to personal data rendered anonymous in such a manner that the data subject is not or no longer identifiable. This Regulation does not therefore concern the processing of such anonymous information, including for statistical or research purposes.
The IC invited the tribunal to strike out the ground of appeal relating to the identity of the case officer as not being within the scope of the tribunal to make any decision on such a matter.
With respect to the applicability of s40 the IC maintained that s40 applied to all the withheld information within scope of questions 1 and 2 except the number of the Muslim candidates recommended in JAC00006. For the rest of the information 100% identification of an individual is possible. He relied on his DN and in particular the findings of paragraphs 15-33:
However, while the fact that low numbers are involved provides a starting point to protecting information, decisions about withholding information need to be made on a case by case basis, considering all relevant circumstances.
The Commissioner is mindful that the issue to be considered in a case such as this is whether disclosure to a member of the public would breach the data protection principles, because an individual is capable of being identified from apparently anonymised information.
He accepts that different members of the public may have different degrees of access to the ‘other information’ needed for re-identification to take place.
A test used by both the Commissioner and the First–tier Tribunal in cases such as this is to assess whether a ‘motivated intruder’ would be able to recognise an individual if he or she was intent on doing so. The ‘motivated intruder’ is described as a person who will take all reasonable steps to identify the individual or individuals but begins without any prior knowledge. In essence, the test highlights the potential risks of reidentification of an individual from information which, on the face of it, appears truly anonymised.
He has reached that conclusion on the basis that the focus of the information is those individuals and that such information is clearly linked to them.
The Commissioner is further satisfied that the individuals concerned would be reasonably likely to be identifiable from a combination of the requested information and other information which is likely to be in, or come into, the possession of others, such as those with knowledge of the judicial community and of the pool of potential applicants with the relevant skills and experience required for the positions.
Consideration
The question for the tribunal to resolve is whether disclosure of the withheld information would breach s40 FOIA which provides:
Any information to which a request for information relates is also exempt information if—
it constitutes personal data which does not fall within subsection (1),
and
the first, second or third condition below is satisfied.
The first condition is
would contravene any of the data protection principles,
Personal data is defined by S3 of the Data Protection Act
‘Personal data’ means any information relating to an identified or identifiable living individual (subject to subsection (14)c).
‘Identifiable living individual’ means a living individual who can be identified, directly or indirectly, in particular by reference to—
an identifier such as a name, an identification number, location data or an online identifier, or
one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of the individual.
The original request is in 9 parts covering a number of selection competitions and years. Although the JAC dealt with it in three parts the structure of the request was in two parts. The first part, questions 1 and 2 related to the competitions specified that the disclosure of the information to a member of thepublic otherwise than under this Act—and applicants identifying themselves as Muslim. The second part, questions 3-9 was under a heading “Decisions about candidates”. Questions 4 and 5 refer back to question 3 which is expressed to be about “candidates in the last 5 years in any selection exercise”. Questions 7 and 8 refer back to question 4 which is also about “candidates in the last 5 years in any selection exercise”. They are seeking aggregate information across all competitions; however given the structure of the appointment process this information is not held by the JAC.
Question 9 is more restricted in focus being restricted to the selection exercises identified for questions 1 and 2. “specify the number of instances (by reference to the relevant selection exercises) when JAC had to apply the "equal merit" policy and the reasons why.” The question therefore seeks the number across the 9 identified selection exercises where the “equal merit” policy was applied specifying which candidate characteristic applies. The JAC has supplied the Appellant with assistance in identifying where it has published information on this issue.
The issue the Appellant raised concerning the officer working on the IC’s investigation of this complaint is not a matter for the tribunal. The Appellant has also sought to challenge the idea of “motivated intruder”. In his appeal he stated:
“there is no reference to other information ("the motivated intruder" test) by the JAC which would be accessible to me from which I might be able to identify individual candidates.”
However the JAC in its letter of 13 February 2024 explicitly stated:
I am still not able to provide the number of Muslim recommendations for each exercise, since the identities of individuals appointed to these roles are usually made public, and therefore there is an increased risk of identification from the figures.
That making public of the fact of an appointment by the Ministry of Justice is one clear point of departure for a “motivated intruder” to explore and unambiguously identify an individual about whom some personal informal has been disclosed.
The tribunal concurs with the Commissioner that the information sought by the request should, in respect of competition JAC00006, be released because the numbers involved, while small, leave an area of doubt. In respect of the remainder of the withheld material, we agree that the information is of a scale that leaves a motivated intruder with knowledge from which s/he could gather with unambiguous knowledge the identity of an individual. It should, therefore, remain withheld.
Signed Date:
Hughes 13 November 2025
Amended 7 January 2026