Court of Appeal gives judgment on credit reference agencies and accuracy of personal data

Posted on | by Robin Hopkins

The fourth data protection principle requires that “personal data shall be accurate and, where necessary, kept up to date”. It does not, however “impose an absolute and unqualified obligation on [data controllers] to ensure the entire accuracy of the data they maintain. Questions of reasonableness arise in the application of the fourth principle, as paragraph 7 of Part II of Schedule I spells out.” This statement by Davis LJ (at para. 80) encapsulates the case of Smeaton v Equifax plc [2013] EWCA Civ 108, in which the Court of Appeal handed down judgment today.

Equifax is a well-known credit reference agency. Between 22 May 2002 and 17 July 2006 Equifax included in its credit file concerning the Respondent, Mr Smeaton, an entry to the effect that he was subject to a bankruptcy order. This was incorrect – that order had been rescinded in 2002.

He was subsequently declined a business loan, with serious detrimental consequences for that business. He brought a claim against Equifax for those business losses and “other losses and distress consequent upon his descent into a chaotic lifestyle”.

Initially, his cause of action was defamation. By the time of trial in 2011, it had become (a) a claim under s. 13 of the Data Protection Act 1998, and (b) a parallel common law tort claim.

The judge, HHJ Thornton QC (having substantially amended the first draft of his judgment following submissions at handing down), found that Equifax had breached the fourth data protection principle (as well as the first and the fifth, though he had heard no argument on these points), that it owed Mr Smeaton a parallel duty in tort and that he had suffered losses as a result of these breaches.

The Court of Appeal disagreed in strong terms, Tomlinson LJ saying this at para. 11 about the judge’s approach and conclusions – particularly on causation:

“In retrospect it is I think unfortunate that the judge attempted to resolve the causation issue in principle, divorced from the question what loss could actually be shown to have been caused by the asserted breaches of duty. I have little doubt that Mr Smeaton believes in all sincerity that a good number of the vicissitudes that have befallen him can be laid at the door of Equifax, but a close examination of the relationship between the losses alleged and the breaches of duty found by the judge would perhaps have introduced something in the way of a reality check. Had the judge looked at both issues together he might I think have had a better opportunity to assess the proposition in the round. As it is, the judge’s conclusion that the breaches of duty which he identified caused Mr Smeaton loss in that they prevented Ability Records from obtaining a loan in and after mid-2006 is in my view not just surprising but seriously aberrant. It is without any reliable foundation and completely unsupported, indeed contradicted, by the only evidence on which the judge could properly rely.”

Turning from the facts of the case and the question of causation to the approach to the fourth data protection principle in general, Tomlinson LJ said this at para. 44:

“The judge was also in my view wrong to regard the mere fact that the data had become inaccurate and remained accessible in its inaccurate form for a number of years as amounting to a “clearly established breach of the fourth principle” – judgment paragraph 106. Paragraph 7 of Part II provides that the fourth principle is not, in circumstances where the data accurately records [erroneous] information obtained by the data controller from the data subject or a third party, to be regarded as contravened if the data controller has, putting it broadly, taken reasonable steps to ensure the accuracy of the data. A conclusion as to contravention cannot in such a case be reached without first considering whether reasonable steps have been taken. As the facts of this case show, that may not always be a straightforward enquiry. Perhaps often it will and it may not therefore usually be difficult to establish a contravention. Once it is concluded that reasonable steps were not taken in this regard, a consumer may seek compensation under s.13. It will then be a defence for the data controller to show that he had taken such care as in all the circumstances was reasonably required to comply with the requirement concerned. It may be that that enquiry is in substance no different from that required under paragraph 7 of Part II in the limited class of case to which that paragraph refers. However it should be noted that in cases not covered by paragraph 7 a contravention may be established without consideration of the reasonableness of the steps taken by the data controller. In such a case reasonableness would arise only if a defence were mounted under s.13(3).”

Tomlinson LJ then summarised the law and relevant legal guidance on credit reference agencies and bankruptcy proceedings. At para. 59, he concluded that:

“The judge’s approach begins with the observation, at paragraph 95 of the judgment, that erroneous or out of date data which remains on a consumer’s credit file can be particularly damaging. Of course this is true, and nothing I say in this judgment is intended to undermine the importance of the fourth data protection principle. But before deciding what is the ambit of the duty cast upon CRAs to ensure the accuracy of their data, it is necessary to put this important principle into context and to maintain a sense of proportion. In the context of lending, arrangements have been put in place to ensure that an applicant for credit should not suffer permanent damage as a result of inaccurate information appearing on his file. As recorded above these safeguards are set out in the Guide to Credit Scoring and are further explained in at least two other published documents…. The judge made no reference to these arrangements which are in my view relevant to the question how onerous a duty should be imposed upon a CRA to ensure that its data is accurate. I agree with Mr Handyside that in most cases of applications for credit failed on account of incorrect data the harm likely to be suffered is temporary inconvenience. It is possible that the judge overlooked this as a result of his flawed conclusion that it was inaccurate data, or more precisely the alleged breach of duty which gave rise thereto, which prevented Mr Smeaton / Ability Records from obtaining credit in and after July 2006.”

He continued at para 62:

“The judge ought in my view to have taken into account that these various publications demonstrate that both the methods by which CRAs collected and updated their data and the shortcomings in those methods were well-known to and understood by the Information Commissioner and the Insolvency Service.”

Tomlinson LJ also concluded (at paras. 67-68) that part of the judge’s conclusions on DPA breach “amounts to a conclusion that Equifax was in breach of the duty required of it under the DPA because it failed to attempt to persuade the Secretary of State and the Insolvency Service to initiate modifications to the legislative and regulatory framework and in particular failed to secure the reversal of the legislative choice made in 1986 no longer to require the automatic advertisement of annulments and rescissions. I do not consider that this is a realistic conclusion. Self-evidently it is not realistic to conclude that an exercise of this sort was either necessary or feasible in relation to a tiny number of cases where the consequences of inaccuracy could not normally be expected to be anything other than temporary inconvenience. A duty the content of which is to lobby for a change in the law must be very uncertain in its ambit and extent and in my view is implausible.”

Finally, not only had the judge erred in his approach to causation and the fourth data protection principle, he was also wrong to find that there was a parallel duty in common law: the House of Lords said in Customs and Excise Commissioners v Barclays Bank [2007] 181 that statutory duties cannot generate parallel common law ones, and on the raditional three-fold test of foreseeability, proximity and whether it is fair, just and reasonable to impose a duty, the answer here would also be ‘no’.

The judgment will be welcomed not only by credit reference agencies, but by all those data controllers whose particular circumstances mean that data inaccuracy is, best efforts notwithstanding, an occupational hazard.

For another blog post on this judgment, see Information Rights and Wrongs, where Jon Baines was quick off the mark.

Robin Hopkins

Application of the DPA to surveillance activities

Posted on | by Panopticon Blog

By Julian Milford

The First-Tier Tribunal (“FTT”) has just issued the first ever tribunal decision concerning the application of the Data Protection Act 1998 (“DPA”) to surveillance activities: Southampton City Council v The Information Commissioner EA/2012/0171, 19 February 2013. In this case, the Council’s licensing committee had resolved in 2009 that all taxis it licensed should be fitted with digital cameras, which made a continuous audio-visual recording of passengers.  The Information Commissioner (“ICO”) issued an enforcement notice against the Council under the DPA, requiring the Council to stop audio recording, because it was in breach of the Data Protection Principles in the Act (the first Data Protection Principle in particular).

The Council appealed to the FTT. It accepted that words recorded by the equipment were “personal data” for the purposes of the DPA, and the very act of recording was a form of “processing” by the Council under the Act. What the Council disputed was (1) the conclusion that the policy involved the processing of “sensitive personal data” as well as personal data; and (2) the ICO’s finding that the recording and retention of audio data was a disproportionate interference with passengers’ privacy rights under Article 8 of the European Convention.

On both points, the FTT found in favour of the ICO. The FTT said that it was “unrealistic” to contend that the policy did not involve the processing of “sensitive personal data”: taxi users would undoubtedly from time to time discuss their own and others’ sex lives, health, politics and so on. The FTT also agreed with the ICO that although the processing served the legitimate aims of promoting public safety, preventing crime, and protecting persons, it was not proportionate. The FTT observed that there were two important points to note. First, the legitimate aim could only be directed at “taxi-related” crime: the fact that police had been able to obtain useful evidence about other crimes could not therefore come into the balance as a benefit. Secondly, the relevant benefits and disbenefits were only the marginal ones coming from audio recording, because no complaint was made about CCTV in taxis. Against that background, the policy’s significant interference with privacy rights outweighed any resulting benefits. The FTT was particularly impressed by arguments about “function creep” i.e. the use of the system for other purposes by (say) the police; and by the danger that someone would access and make improper use of the very extensive recorded information. Finally, the FTT said that the ICO was entitled to serve an enforcement notice, given the high public importance of the case.

Plainly, this is a significant decision, whose principles can be read across to a range of surveillance activities carried out by public bodies.

Timothy Pitt-Payne QC and Anya Proops of 11KBW appeared for Southampton City Council and the ICO respectively.

Electoral registration

Posted on | by James Goudie KC

The first Commencement Order has been made under the Electoral Registration and Administration Act 2013.  The Order brings into force provisions enabling Regulations to be made about the disclosure of information for the purposes of electoral registration.  The provisions are in Section 2 of and Schedule 2 to the Act (Sharing and Checking Information), amending Schedule 2 to the Representation of the People Act 1983.  The Regulations are to enable a system to be established for the verification of the eligibility of applicants and registered electors in Great Britain, and verification that applicants are the persons they claim to be.  The Regulations may authorise or require Registration Officers to require an applicant or a registered elector to provide evidence of eligibility and that an applicant is the person named in the application.

Vexatious and manifestly unreasonable requests: definitive guidance from the Upper Tribunal

Posted on | by Robin Hopkins

Public authorities often have cause to consider whether to treat requests for information as vexatious (section 14 of FOIA) or manifestly unreasonable (regulation 12(4)(b) of the EIR). Precise definitions of those terms are difficult to pin down. They are not supplied by legislation. There is no binding authority from appellate courts or tribunals on their meaning in the information rights context. The Information Commissioner’s guidance is long-standing, but First-Tier Tribunals vary in the extent to which they use that guidance.

In three distinct but related decisions published today, the Upper Tribunal (Judge Wikeley) has filled this gap, providing what is (for now) the definitive, binding guidance on what vexatiousness and manifest unreasonableness mean in this context, and how reliance on those provisions should be approached. The cases are Dransfield, Craven and Ainslie, with Dransfield serving as the lead case (for summaries of the first-instance decisions, use Panopticon’s search function).

The key principles of general application are summarised below, followed by observations on the three specific appeals.

What kind of a creature is section 14 of FOIA?

Section 14 is not stricly speaking an ‘exemption’. The purpose of the exemptions in Part 2 of FOIA “is to protect the information because of its inherent nature or quality. The purpose of section 14, on the other hand, must be to protect the resources (in the broadest sense of that word) of the public authority from being squandered on disproportionate use of FOIA (to that extent I agree with the observations of the FTT in Lee v Information Commissioner and King’s College Cambridge EA/2012/0015, 0049 and 0085 at [50])… To that extent, section 14 of FOIA operates as a sort of legislative “get out of jail free card” for public authorities. Its effect is to relieve the public authority of dealing with the request in issue, except to the limited extent of issuing a refusal notice as required by section 17. In short, it allows the public authority to say in terms that “Enough is enough – the nature of this request is vexatious so that section 1 does not apply.”” (Dransfield, paras 10-11).

What does ‘vexatious’ mean in this context?

“’Vexatious’ is a protean word, i.e. one that takes its meaning and flavour from its context.” The dictionary definition is only a starting point: irritation or annoyance alone does not suffice – public scrutiny may be irritating or annoying to some, but it is the essence of FOIA.

“The question ultimately is this – is the request vexatious in the sense of being a manifestly unjustified, inappropriate or improper use of FOIA?” (Dransfield, para 43).

Guidance and illustrations

Judge Wikeley offered illustrative guidance under four headings (see the discussion at paras 28-39 of Dransfield). At para 28, he said this:

“Such misuse of the FOIA procedure may be evidenced in a number of different ways. It may be helpful to consider the question of whether a request is truly vexatious by considering four broad issues or themes – (1) the burden (on the public authority and its staff); (2) the motive (of the requester); (3) the value or serious purpose (of the request) and (4) any harassment or distress (of and to staff). However, these four considerations and the discussion that follows are not intended to be exhaustive, nor are they meant to create an alternative formulaic check-list. It is important to remember that Parliament has expressly declined to define the term “vexatious”. Thus the observations that follow should not be taken as imposing any prescriptive and all encompassing definition upon an inherently flexible concept which can take many different forms.”

Background and context can be highly relevant. As to burden, questions of volume, breadth, pattern and duration of requests may be relevant. Note, however, that volume alone might not be decisive. Furthermore, an individual request can be vexatious.

While FOIA is axiomatically motive blind, “the proper application of section 14 cannot side-step the question of the underlying rationale or justification for the request” (Dransfield, para 34).

Series of requests can sometimes start out innocuously, but fall into “vexatiousness by drift” (Dransfield, para 37).

As to serious purpose or value, “the weight to be attached to that value or serious purpose may diminish over time. For example, if it is truly the case that the underlying grievance has been exhaustively considered and addressed, then subsequent requests (especially where there is “vexatiousness by drift”) may not have a continuing justification” (Dransfield, para 38).

Notes of caution

Judge Wikeley confirmed that the term ‘vexatious’ here applies to the request, not the requester (Dransfield, para 19).

He also warned that the right to deem a single request vexatious “should not be seen as giving licence to public authorities to use section 14 as a means of forestalling genuine attempts to hold them to account” and that “a lack of apparent objective value cannot alone provide a basis for refusal under section 14, unless there are other factors present which raise the question of vexatiousness. In any case, given that the legislative policy is one of openness, public authorities should be wary of jumping to conclusions about there being a lack of any value or serious purpose behind a request simply because it is not immediately self-evident” (Dransfield, paras 36 and 38 respectively).

Where does this leave the Commissioner’s guidance?

The guidance remains valuable, but the ‘five factors’ are at best ‘pointers to potentially relevant considerations’; they are a means to an end (the end being the ‘ultimate test’ – see above) (Dransfield, paras 39-45).

Is the test for ‘manifest unreasonableness under the EIR any different?

A short answer: no (Craven, para 30).

Regulation 12(4)(b) is different to section 14 in three ways. “First, section 14 excuses the public authority from responding, but is not formally a FOIA exemption, whereas regulation 12(4)(d) is structurally an exception under the EIR. Second, the EIR provision is expressly subject to a public interest test. Third, under the EIR there is a presumption in favour of disclosure (see regulation 12(2))” (Craven, para 19).

However, the approach to this provision is the same as the approach to section 14 of FOIA (see above), both for analytical reasons and pragmatic ones (if the approach is the same, the question of which regime applies need not be analysed).

Unlike FOIA, the EIR do not have a separate exception for cost of compliance. Regulation 12(4)(b) is the provision relied upon when the cost of compliance is disproportionate. What about FOIA? Can section 14 be used even where section 12 might also have been an option (as has been argued at First-Tier level: see the IPCC and TieKey cases, for example)? The Upper Tribunal’s answer is yes, it can. Judge Wikeley did, however, say this (Craven, para 31):

“Notwithstanding the above, if the public authority’s principal reason (and especially where it is the sole reason) for wishing to reject the request concerns the projected costs of compliance, then as a matter of good practice serious consideration should be given to applying section 12 rather than section 14 in the FOIA context. Unnecessary resort to section 14 can be guaranteed to raise the temperature in FOIA disputes. In principle, however, there is no reason why excessive compliance costs alone should not be a reason for invoking section 14, just as may be done under regulation 12(4)(b), and in either case whether it is a “one-off” request or one made as part of a course of dealings.”

The outcomes in the individual appeals

In Dransfield (which concerned a series of requests about lightning protection measures), the appeals by the Commissioner and the public authority succeeded. The request fell within section 14. Judge Wikeley concluded inter alia that:

“I have no hesitation in accepting Mr Cross’s primary submission. The FTT adopted too restrictive an approach to the application of section 14 in paragraphs [31]-[38] of the reasons for the decision. In particular, the FTT relied on an unwarranted distinction between two types of case in which there has been a past course of dealings. The FTT’s view was, in effect, that where the link between the request in issue and the previous course of dealing was one of subject matter alone, then the public authority could not treat the request as vexatious on the basis of that course of dealing, whatever other considerations might suggest. On the FTT’s approach, there had to be some “underlying grievance”, not simply a “similarity of subject matter” in order for section 14 to bite.”

In Craven (which concerned a series of requests about high voltage electric cables), the requester’s appeal was allowed on the questions of adequacy of reasons and the failure of the FTT to set out the reasons for the dissenting minority view, but the Upper Tribunal re-made the decision and concluded that section 14 and regulation 12(4)(b) had been correctly applied by the public authority.

In Ainslie, the requester’s appeal was allowed. He was found to have been acting firmly in the public interest, and “the FTT failed to find sufficient facts, and in particular to resolve certain important disputed issues on the evidence before it, and in doing so failed to provide adequate reasons for its decision” (Ainslie, para 26).

Other important points

These decisions also contain a number of points of general application beyond the vexatiousness context. All those involved in Tribunal litigation should note the following points.

The Upper Tribunal has held that, where a FTT decision is a majority one rather than unanimous, the FTT will err if it fails to set out the reasons for the minority view (Craven, para 42).

Further, while not a new point, the Upper Tribunal has confirmed the importance of FTTs giving adequate reasons (whether unanimous or majority decisions) to allow parties to know why they won or lost.

Judge Wikeley has cautioned that strike-out applications in information rights matters should not be resorted to lightly, but should only follow careful consideration (Craven, para 94).

Where section 14 or regulation 12(4)(b) are relied upon, “every effort should be made to ensure that the parties can participate in an oral hearing. This allows the relevant issues to be properly explored in a way that is simply not always possible on the papers” (Craven, para 95).

Tribunals should also be “more alive to the importance of making their processes accessible to ordinary citizens acting without the benefit of professional representation… was the request vexatious or manifestly unreasonable (or not)? The appellate process in such a case needs to focus on that question, rather than indulge in legalistic point-scoring. Tribunals are for users, after all, not just (if at all) for lawyers” (Craven, para 96).

Finally, Judge Wikeley observed that the preponderance of section 14 cases at Tribunal level was no reflection on the general usage of FOIA. At para 83 of Dransfield, he made this observation:

“As the American legal theorist Professor Karl Llewellyn wisely observed, litigated cases are inherently “pathological”; they bear the same relation to the broader set of disputes “as does homicidal mania or sleeping sickness, to our normal life” (The Bramble Bush (1960), p.58).”

For those who spend much of their life litigating, these last points are food for thought.

Tom Cross appeared for the Commissioner in all three appeals. Rachel Kamm and James Cornwell appeared for the public authorities in Dransfield and Craven respectively.

Robin Hopkins

Personal data: it’s all in the name

Posted on | by James Cornwell

A person’s name constitutes his or her personal data – so has held the Upper Tribunal recently in Information Commissioner v Financial Services Authority & Edem [2012] UKUT 464 (AAC).

Section 1(1) of the Data Protection Act 1998 (“the DPA”) defines “personal data” thus:

“‘personal data’ means data which relate to a living individual who can be identified—

(a) from those data, or

(b) from those data and other information which is in the possession of, or is likely to come into the possession of, the data controller,

and includes any expression of opinion about the individual and any indication of the intentions of the data controller or any other person in respect of the individual; …”

Mr Edem made a request under the Freedom of Information Act 2000 (“FOIA”) to the Financial Services Authority (“the FSA”) seeking “a copy of all information that the FSA holds about me and/or my complaint that the FSA had failed to correctly regulate Egg plc”. The FSA declined to provide the information on various grounds. Mr Edem complained to the Information Commissioner. By the time that the Commissioner issued his Decision Notice the only remaining withheld information was the names of three FSA officials. The Commissioner upheld the FSA’s refusal to disclose this information on the basis that it was personal data of the individuals, they would have had no expectation of their names being released in public and any legitimate interest in disclosure was outweighed by the prejudice to their rights and freedoms (i.e. the information was exempt under FOIA, section 40(2) because disclosure would breach the First Data Protection Principle in Schedule 1 to the DPA).

On Mr Edem’s appeal the First-tier Tribunal (Information Rights) (“the FTT”) decided that the names of the officials did not constitute their personal data and ordered disclosure. In reaching that conclusion the FTT purported to apply the well-known analysis of the concept of personal data by Auld LJ in Durant v FSA [2003] EWCA Civ 1746, [2011] 1 Info LR 1 at [26-29]. In Durant at [28] Auld LJ identified two notions “that may be of assistance” in considering whether information relates to an person: biographical significance and focus. The FTT found that the disputed information was “not biographical in any significant sense” as it simply concerned transactions in which the individuals were involved. Further, the FTT held that the information did not have the individuals as its focus, but rather the handling of Mr Edem’s complaint.

In the Upper Tribunal Judge Jacobs rejected that analysis and allowed the Commissioner’s and FSA’s appeals against the FTT’s decision.

The Judge identified two relevant elements to the definition of personal data in section 1(1) of the DPA: relation and identification (see at [10]). Durant was a case about relation, not identification (see at [20], [29]). The Judge considered that Auld LJ’s two notions (biographical significance and focus) were not presented as being exhaustive or as defining the concept of personal data (see at [21]) and were limited to “borderline” cases (see at [23]).

Judge Jacobs considered that the ECJ’s decisions in Criminal Proceedings against Bodil Lindqvist (Case C-101/01) [2003] ECR I-6055 and European Commission v Bavarian Lager Co Ltd (Case C-28/08 P) were authority that the names of persons are personal data.

As the names of the officials were held by the FSA, the information was data for the purposes of section 1(1) of the DPA (see at [33]). Although the names were (in this case) not unique, taken together with contextual information such as grades and dates of employment they identified the officials (see at [36]).  As to the relation element of the definition of personal data, the Judge concluded that the FTT had either: (1) misdirected itself because Auld LJ’s two notions were not relevant in this case as the information requested included not just the names but other personal data including the individuals’ role within the FSA and their involvement in Mr Edem’s complaint (see at [38]); or (2) misapplied Auld LJ’s two notions. There were two ways in which such misapplication occurred. First, the FTT adopted an approach to biographical significance that was too narrow and was inconsistent with the ECJ’s decision in Bavarian Lager (see at [40]). Secondly, the holder of information has to know whether or not information is personal data at the time it is recorded and on the test adopted by the FTT information would not be biographical because its significance was not known at the time of recording (see at [41]).

Having concluded that the information was personal data Judge Jacobs set aside the FTT’s decision and re-made the decision, finding (in agreement with the Commissioner’s Decision Notice) that condition 6 of Schedule 2 to the DPA was not satisfied as no legitimate interest in disclosure had been identified.

The Upper Tribunal’s conclusion in relation to the misapplication of Auld LJ’s two notions is plainly correct – the FTT’s approach does seem to have been significantly narrower than that approved by the ECJ in Bavarian Lager. Judge Jacobs’ second point in relation to misapplication is interesting. If biographical significance is interpreted in such a way that it is dependent on subjective or context-dependent judgment, then the task of a data controller would, indeed, be rendered very difficult as information slipped into and out of being personal data.

It should be noted that both in this case and Bavarian Lager there was some additional context in which the names appeared that gave them biographical significance – the case should not be read as saying that a name on its own (devoid of context) is necessarily personal data.

The Judge’s reasoning on the FTT’s misdirection at [38] is potentially more controversial. Whilst Auld LJ clearly intended his “two notions” to be non-exhaustive, it is open to question whether the judgments in Durant can really be read as intending to limit them only to borderline cases. However, that is the stance that the Information Commissioner and the Government have traditionally taken in interpreting Durant and Judge Jacobs has accepted it.

Information “reasonably accessible” despite hefty charge

Posted on | by Charles Bourne

In Davis v ICO and Health and Social Care Information Centre (case no. EA/2012/0175, judgment 24 January 2013) the First-Tier Tribunal applied the absolute exemption under section 21 of FOIA 2000 for information which is reasonably accessible to an applicant other than under section 1. The requested information consisted of health statistics which the public authority was willing to provide to the appellant under its publication scheme for a charge of £1,550. The appellant argued that the charge meant the information could not be considered to be reasonably accessible to a person of ordinary means.

 Section 19 of FOIA requires public authorities to adopt publication schemes, subject to approval by the Information Commissioner, for the dissemination of information with or without charge. Section 20 provides for the ICO to approve model publication schemes which public authorities may adopt without further approval.

 The critical provision in this case was section 21(3) which provides that information is “not to be regarded as reasonably accessible to the applicant merely because it is available from the public authority on request, unless the information is made available in accordance with the authority’s publication scheme and any payment required is specified in, or determined in accordance with, the scheme”.

 The Tribunal interpreted this provision as meaning that if a scheme has the ICO’s approval and if the charge is specified in the scheme or ascertainable from it, the ICO and the Tribunal are required – rather than merely empowered – to regard the information as reasonably accessible.

 There was therefore no scope for the ICO or the Tribunal to judge the accessibility of the information by reference to the charge or any other factor. The ICO’s approval of the model scheme was conclusive. The Tribunal was persuaded that the ICO is indeed the appropriate authority to determine whether access is reasonable, and that it was hard to see why Parliament should enact a detailed system for approval of publication schemes and notification of charges “if compliance simply made the authority`s published information eligible for an assessment as to whether it was reasonably accessible”.

 It seems that the only remedy for an applicant who is deterred by charges is to draw the matter to the ICO’s attention. The ICO is empowered to revoke his approval on notice and, as the Tribunal noted, might take such a step if there was evidence of charges deterring information requests.

 Charles Bourne