At 11KBW’s information law seminar in May, one of the discussion topics was ‘the future of data protection’. Here are some further thoughts on some interesting trends and developments.
Progress at the EU level
A major issue on this front is of course progress on the draft EU Data Protection Regulation – on which see this blog post from the ICO’s David Smith for an overview of the issues currently attracting the most debate. While that negotiation process runs its course, the Article 29 Working Party continues to provide influential guidance for users and regulators on some of the thorniest data protection issues. Its most recent opinion addresses purpose limitation, i.e. the circumstances under which data obtained for one purpose can be put to another. A summary of its views is available here.
Subject access requests
Turning to domestic DPA litigation in the UK, practitioners should watch out for a number of other developments (actual or potential) over the coming months. On the subject access request front, for example, data controllers have tended to take comfort from two themes in recent judgments (such as Elliott and Abadir, both reported on Panopticon). In short, the courts in those cases have agreed that (i) data controllers need only carry out reasonable and proportionate searches, and (ii) that section 7(9) claims being pursued for the collateral purpose of aiding other substantive litigation will be an abuse of process.
Data controllers should, however, note that neither of those points is free from doubt: there are plenty who doubt the legal soundness of the proportionality point, and the abuse of process point has arisen for section 7(9) claims to the court – it should not, in other words, be relied upon too readily to refuse requests themselves.
Damages under section 13 of the DPA is another area of potentially important change. The Halliday v Creation Consumer Finance case (briefly reported by Panopticon) has been given further discussion in the Criminal Law & Justice Weekly here. Based on that information, perhaps the most interesting point is this: defendants have rightly taken comfort from the requirement under section 13 that compensation for distress can be awarded only where damage has also been suffered. In Halliday, however, nominal damages (of £1) were awarded, thereby apparently fulfilling the ‘damage’ requirement and opening the door for a ‘distress’ award (though note that Panopticon has not yet seen a full judgment from the Court of Appeal in this case, so do not take this as a definitive account). If that approach becomes standard practice, claimants may be in much stronger positions for seeking damages.
A further potential development on the damages front arises out of monetary penalty notices: data controllers who are subject to hefty penalties by the ICO may in some cases also find themselves facing section 13 claims from the affected data subjects themselves, presenting a worrying prospect of paying out twice for the same mistake.
Disclosure of personal data in the FOIA context
In general terms, requesters struggle to obtain the personal data of others through FOIA requests. A couple of very recent decisions have, however, gone the other way.
In White v IC and Carmarthenshire County Council (EA/2012/0238), the First-Tier Tribunal allowed the requester’s appeal and ordered disclosure of a list of licensed dog-breeders in the council’s area. In particular, it concluded that (paragraphs 21-23):
“…the Tribunal believes – on the facts of this case – that an important factor for any assessment in relation to the “fairness” of the disclosure of the personal data is best discovered from the context in which the personal data was provided to the Council in the first place.
22. The context, here, is to secure a commercial licence required by law to breed dogs. That license is necessary for the local authority to know who the licensed dog breeders in that area are, and so that the law can be enforced and welfare checks can be conducted as and when necessary in relation to the welfare of the dogs being bred commercially.
23. Licensing – in the ordinary course of things – is a public regulatory process. Indeed it was a public process in Carmarthenshire, in relation to the information that is at the core of this appeal, until the Council changed its policy in 2008.”
The Tribunal was unimpressed by the suggestive language of a survey of dog breeders which the council had carried out to support its case for non-disclosure. It also noted that a neighbouring council had disclosed such information.
The First-Tier Tribunal issued its decision in Dicker v IC (EA/2012/0250) today. It allowed the requester’s appeal and ordered disclosure of the salary of the chief executive of the NHS Surrey PCT over specified time periods, including total remuneration, expenses allowance, pension contributions and benefit details. As to legitimate interests in disclosure, the Tribunal said that (paragraph 13):
“In this case the arrangements (including secondment and recharge from another public authority at one stage) mean that the arrangements are not as transparent as might be wished and it is not entirely clear from the information published (as opposed to the assurances given) that the national pay guidance has been complied with. Mr Dicker asserted that the CEO was paid in excess of the national framework. The Tribunal was satisfied that there was a legitimate public interest in demonstrating that the national framework had been complied with and that the published information did not properly establish this”.
On the questions of distress and privacy infringements, the Tribunal took this view (paragraph 14):
“The CEO is a prominent public servant discharging heavy responsibilities who must expect to be scrutinised. Individuals in such circumstances are rational, efficient, hard-working and robust. They are fully entitled to a high degree of respect for their private lives. However the protection of personal information about their families and their health is a very different matter from having in the public domain information about income… The Tribunal simply cannot accept that anyone in such a role would feel the slightest distress, or consider that there has been any intrusion or that they would be prejudiced in any way by such information. From the perspective of the individual such information is essentially trivial; indeed, in other European societies, such information would be routinely available.”
If this approach were to become standard, the implications for public authorities would be significant.
Further, there are two very important personal data FOIA cases to look out for in the coming months. Following its decision in the Edem case late in 2012, the Upper Tribunal’s next consideration of personal data in the FOIA context is the appeal in the Morley v IC & Surrey Heath Borough Council (EA/2011/0173) case, in which the Tribunal – in a majority decision in which Facebook disclosures played a significant part – ordered the disclosure of names of certain youth councillors.
More importantly, the Supreme Court will hear an appeal from the Scottish Court of Session in July about a FOISA request for the number of individuals employed by the Council on specific points in the pay structure. The council relied on the personal data exemption (contending that individuals could be identified from the requested information), but the Scottish Information Commissioner ordered disclosure and succeeded before Scotland’s highest court. The Supreme Court will consider issues including the approach to ‘legitimate interests’ under condition 6(1) of schedule 2 to the DPA (the condition most often relied upon in support of disclosing personal data to the public). The case is likely to have far-reaching implications. For more detail, see Alistair Sloan’s blog.
Panopticon will, as ever, keep its eye on these and other related developments.