Penalty shoot out – tribunal decision in scottish borders council appeal

The First-Tier Tribunal has today issued its decision in the Scottish Borders Council monetary penalty notice case – the decision can be found on the tribunal’s website here (11KBW’s Robin Hopkins acted for the ICO). The background to the case is that the ICO had issued SBC with a monetary penalty notice requiring it to pay a penalty of £250,000. The penalty was issued in circumstances where a data processor, appointed by SBC to digitise its pension records, had ended up placing the hard copies of the records in the post box bins at Tesco and another supermarket. In total about 1,600 files had been disposed of in this way. SBC appealed against the imposition of the penalty to the Information Tribunal. The Tribunal held that the penalty was unlawful and, indeed, that the Commissioner had no power to issue a penalty under s. 55A DPA. This was because, whilst SBC had seriously contravened the DPA, the facts and circumstances of the case were such that the contravention was not of a kind likely to cause substantial damage or distress. Thus, an essential precondition for the engagement of the Commissioner’s power to issue a penalty under s. 55A had not been met. I am reluctant to comment further on this decision as I am shortly to be appearing against Timothy Pitt-Payne QC in the first ever appeal to the Upper Tribunal on the application of the monetary penalty regime (Central London Community Healthcare Trust NHS v IC). However, doubtless one of my colleagues will in due course provide illuminating analysis of this important decision.

Anya Proops