UKIP, the ICO and Information Notices

February 21st, 2019

Information notices have so rarely surfaced in information rights litigation that I can almost hear a number of Panopticon readers saying ‘what is an information notice again?’. Fair question. It is a notice which the ICO is empowered to serve requiring someone to furnish it with information it needs in order to discharge its functions, e.g. by investigating potential data protection contraventions. Generally, parties provide such information voluntarily upon request. If they don’t – or if they don’t do so adequately – the ICO can issue a formal notice compelling them to provide the requested information (s. 43 of the DPA 1998; s. 142 of the DPA 2018). As with other enforcement notices, an information notice can be appealed to the Tribunal.

The Upper Tribunal has recently had cause to consider information notices for the first time, in the case of UKIP v Information Commissioner [2019] UKUT 662 (AAC). Its decision is here: UKIP – UTT Decision.

As part of its investigation into the data-related practices of political parties, the ICO wrote to UKIP with a list of questions. It received answers that were, at best, terse (between a few words and four lines each). The ICO was not prepared to leave it there; it issued an information notice. UKIP regarded the notice as unnecessary and vague. It sought to take back control, by appealing to the First-Tier Tribunal. After some to-ing and fro-ing, the Tribunal upheld the information notice. UKIP remained displeased, and appealed to the Upper Tribunal. [Please excuse my half-hearted attempt at channelling Panopticon’s usual punmaster].

Speaking of whom: enter Christopher Knight to do battle with UKIP.

Upper Tribunal Judge Wikeley has dismissed UKIP’s appeal. There was some vagueness (in the information notice) here, and some procedural infelicity (in the Tribunal’s initial approach) there, but overall, the information notice stands. Nothing here of very broad application, but here are some common-sense/mildly amusing nuggets.

One is that UKIP characterised the ICO as proceeding thus: ‘we are looking into political parties; you are a political party; give us all your data’. The UT rejected that characterisation. The ICO had explained its overall investigation into potentially serious malpractice in respect of elections, and it was clear that UKIP, as a ‘grown-up political party’ [how do I insert the right emoji here?] was obviously within the scope of that investigation. In contrast, it would have been disproportionate for the ICO to issue information notices to The Monster Raving Looney Party as part of this investigation. (Submission courtesy of Chris Knight). There is also a name-check for Lord Buckethead (I think that was Judge Wikeley’s own selection).

Another is Judge Wikeley’s analogy at [31] to explain why the ICO had sensibly exercised its discretion here. UKIP’s approach to the ICO’s initial questions was like a student having a go at homework set by its teacher. Its homework was a clear fail. The ICO had a discretion as to whether simply to require it to be redone (i.e. ask again, without issuing a formal information notice), or to demand it be redone on threat of detention. The choice between the two was one for the ICO’s discretion. UKIP remains in detention.

Robin Hopkins @hopkinsrobin

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