Wendy Alexander MSP became leader of the Labour Party group in the Scottish Parliament in September 2007. In the course of her leadership election campaign, someone in her team recorded a donation of £950 as coming from a domestically-based company, whereas it in fact came (unlawfully) from an overseas-based individual. The Electoral Commission investigated two potential criminal offences that arose under the Political Parties, Elections and Referendums Act 2000. In February 2008, it issued what the Information Tribunal described as a “meagre statement”. It said that there was insufficient evidence of an offence under section 61 (knowingly facilitating, concealing or disguising an impermissible donation), but it acknowledged – implicitly – that an offence under section 56(3) (failure to return an impermissible donation within 30 days). Nonetheless, the case was not referred to the Procurator Fiscal. Many were dissatisfied with the investigation.
The requester in this case sought further information. Answers to a number of his questions were withheld. The Tribunal in Ferguson v IC and The Electoral Commission (EA/2010/0085) has today handed down a decision which is notable both for its commentary on the interaction between personal data and the inherent publicity of political life, and for a number of distinctions it draws between types of information which, at first glance, may appear to be personal.
Broadly, there were two types of question in dispute. One type sought the names of those who provided the Electoral Commission with answers to certain questions. Applying Durant, the Tribunal held that this was not personal data. Even if it were personal data, a Schedule 2 condition would be met, and the processing would be lawful and fair because there was no indication that interviewees had an expectation of confidentiality. The Tribunal emphasised that fairness does involve a balance of competing interests. Section 30(1) was engaged, but the public interest favoured disclosure. Here the Tribunal rejected the submission that disclosure would undermine voluntary co-operation with the Electoral Commission’s investigations: “politicians and their supporters have strong incentives to co-operate with the Commission”.
The second type was about who had misrecorded the donation and why. This was held to be sensitive personal data. The Tribunal cautioned against generalising about FOIA being purpose-blind: an applicant’s identity and motives may sometimes shed light on the public interests involved, and on whether conditions from Schedules 2 and 3 are met. In this case, however, a Schedule 3 condition was not met: the Tribunal was not persuaded that, at the relevant time, the answers the appellant sought were necessary for him to obtain legal advice on a possible application for judicial review of the Electoral Commission.
The Tribunal remarked that the appellant would have had a “strongly arguable case” under condition 6(1) of Schedule 2, and made a number of observations on fairness. It commented that “politics is an inherently public activity. The extent and manner of compliance with the rules should be expected to be subject to public scrutiny”. The Tribunal did, however, distinguish between the section 56 offence (implicit finding of guilt) and the section 61 offence (explicit finding of insufficient evidence). Disclosure concerning the former would not be unfair: Ms Alexander “would be well able to say in mitigation anything that she wished by making public statements, as any serious politician would”. Disclosure concerning the latter would be unfair: it “would risk placing the data subjects under a cloud of suspicion, in circumstances where there might be no definitive termination of speculation and where, as a result, undue distress would be likely to ensue”.