Flushing out Wrongdoing: the DPA and the Publication of Allegations about Toilets

Local government is an exciting place. And because it is an exciting place, filled with thrusting go-getting types who live on the edge of danger, there is the risk of occasional accusations of wrongdoing. Councillor Hussain, a Labour member, of that parish is the subject of serious allegations – which have not yet been determined – to whit that he procured the sale of some toilets to a person connected to him at an undervalue and that he expunged some parking tickets issued to family members.

What, though, has this to do with data protection and the subject matter of this blog? Amongst many other grounds of challenge raised in his judicial review, Cllr Hussain complained that the Council’s decision to publish a report of the solicitor who had investigated the allegations, and the Opinion of leading counsel in relation to the onward handling of those allegations, was a breach of his data protection and Article 8 ECHR rights. In R (Hussain) v Sandwell Metropolitan Borough Council [2017] EWHC 1641 (Admin), his claims were rejected.

The judgment is extremely long and is mostly of interest to those for whom the local government Code of Conduct regime is legal catnip. But if one sticks it out to [216] of the judgment, Green J commences a relatively brief, but useful, discussion of compatibility of publication of the investigation report with the DPA, including some aspects of the data protection principles which have not been the subject of copious judicial consideration. In fact, the analysis was entirely done under the DPA; Green J rejected the Article 8 argument almost out of hand having decided that publication did not breach the DPA: at [239].

Green J noted that there had been an argument that the reports contained sensitive personal data because they referred to Cllr Hussain’s political opinions, i.e. that he was a member of the Labour Party. Perhaps not surprisingly, this was not thought an attractive point, and the judge clearly thought that standing as a Labour councillor was sufficient to amount to information deliberately placed in the public domain by the data subject so as to satisfy condition 5 of Schedule 3: at [228]. There is no discussion of whether the discussion of the allegations might amount to the allegation of a criminal offence (such as, perhaps, fraud or misconduct in public office).

The focus of the reasoning was around the first data protection principle. FOIA users will find this all fairly familiar, and indeed it is nice to see some familiar faces from the Upper Tribunal popping up to guide the High Court through condition 6 of Schedule 2 and fairness (Goldsmith on necessity and Haslam on councillors failing to pay council tax both get an approving mention).

The Court accepted that a number of Schedule 2 conditions were met, including ones not often seen. Condition 3 was met because the Council had an obligation in section 27 of the Localism Act 2011 to promote and maintain high standards, which included transparency and accountability and that it should be seen to do so. (This is a generous approach to characterising legal obligations, and may well assist under the GDPR when condition 6(1) is disapplied for public bodies.) For much the same reasoning, condition 5(b) was also met: publication was necessary in the exercise of the Council’s functions. So was 5(d): necessary for the exercise of a function of a public nature exercised in the public interest. Of course, condition 6(1) was also used, and Green J concluded that was also met because of the strong interest in dispelling public concern about suppression of wrongdoing (because of partial leaks) and to maintain confidence, as well as enhancing transparency generally.

Green J then conducted a fairness balancing exercise (recognising an overlap with the conditions) at [237]. He set out a number of factors, including that: the public would be enabled to see the full picture; the documents had probably already been leaked; it avoided the impression of concealment; a serious prima facie case existed of wrongdoing; past non-publication couldn’t prevent a more transparent approach here; publication would have a deterred effect because “sunlight bleaches” and allegations are disclosed in a variety of legal contexts all the time; and an impact on his family was outweighed by the greater scrutiny his public position involved.

Perhaps the most useful bit of the judgment is at [238], at which Green J considers the principles of relevance and accuracy. The Court rejected a breach of the accuracy principle, raised in relation to provisional investigation reports and it is worth setting out the reasoning in full:

I can see that when the personal data in issue relates to matters such as: name, address, age, marital status, nationality, etc, that accuracy is achievable. However, the concept of “accuracy” may need to be seen in a different context in relation to data contained in the Wragge Report, the Opinion and the Audit Report. These strive to make provisional findings only, not definitive findings. As a matter of logic a document can accurately set out findings which are understood as provisional or prima facie findings even if later those views are not upheld at a full hearing. The subsequent formal findings do not render inaccurate the earlier view inaccurate as provisional or prima facie. The Claimant’s objection, if valid, would preclude the publication of any report containing provisional findings which by their nature run the risk of later turning out to be inaccurate when tested at a trial or subsequent hearing convened to determine their truth. In my view a document which contains provisional findings and sets out no more than a prima facie case for further investigation cannot for this reason be said to be inherently inaccurate.

Accuracy, quite rightly, has to be seen in context.

Finally, an argument was made that pursuing the DPA claim by judicial review was a breach of the alternative remedy principle because it could have been brought as a Part 7 claim under section 10. Green J did not agree, chiefly because the judicial review was being heard in the High Court, as the section 10 could have been; that it would have been disproportionate to reject it on that basis having heard the case; and that refusing relief would simply have caused costs and delay: at [240]. On the facts, this is probably sensible, but the answer may be different if the claim is really only about the DPA as opposed to the multiple other public law complaints raised in the earlier 200 paragraphs of the judgment. (On such a case, oddly also called Hussain, see here.)

All in all, some interesting DPA food for thought in Hussain and worth reading. Just don’t use it as toilet reading. Especially not in Sandwell.

Peter Oldham QC appeared for Cllr Hussain. James Goudie QC and Ronnie Dennis appeared for the Council.

Christopher Knight