PRIVACY BY DESIGN – NEW OPINION FROM THE EUROPEAN DATA PROTECTION SUPERVISOR

Posted on | by Anya Proops KC

The European Data Protection Supervisor last week adopted a new opinion examining the question of how effectively to safeguard data protection and privacy rights in the fast-moving world of information technology. The central thrust of the opinion is that new information technologies themselves need to be developed in a way which protects personal data and privacy, rather than simply being subject to possibly ineffective control policies once they have been developed. This so called ‘privacy by design’ approach to developing new technologies is intended to build public trust in the information society.

ACCESSING PROPERTY SEARCH INFORMATION – NEW HIGH COURT JUDGMENT

Posted on | by Anya Proops KC

Last week I posted on a judicial review claim which was then being heard in the High Court on the question of access to property search information held by local authorities. Judgment was handed down in the case last Friday – OneSearch Direct v City of York Council [2010] EWHC 590 (Admin). The case involved an attempt by a property search company (OneSearch) to gain direct access to unrefined property records held by a local authority. The advantage to OneSearch of gaining such direct access is that it would not have to pay to receive the relevant property search information through what is commonly known as the ‘CON29R’ system. The CON29R system typically entails local authorities providing answers to property search enquiries (on a form known as the CON29R form) and then charging for the provision of that information under the Local Authorities (England) (Charges for Property Searches) Regulations 2008. When OneSearch’s request for direct access to the records was refused by the council, the company brought a claim for judicial review against the council. In that claim, which was treated as a test case, OneSearch argued that denying access to the unrefined records was unlawful having regard to the statutory purpose and intention underlying the relevant local authority legislative scheme. Hickenbottom J rejected OneSearch’s claim. He held that it was entirely lawful and in accordance with the statutory scheme for the council to opt to provide the relevant property search information through the CON29R system. This judgment will come as a blow to those property search companies who see the CON29R system as a costly system which unjustly allows local authorities to exploit their monopolistic position as controllers of property search records. Notably, the rights of access available under the Environmental Information Regulations 2004 were not relied upon by OneSearch in this case – cf my recent post on the case of East Riding Council v ICO & York Place. 11KBW’s Jason Coppel acted on behalf of the council.

DISCLOSING INFORMATION FOR CHILD PROTECTION PURPOSES – NEW ADMINISTRATIVE COURT JUDGMENT

Posted on | by Anya Proops KC

The question of whether and to what extent local authorities can or should share information about individuals thought to pose a risk to children is often a very difficult one to answer in practice. Failure to disclose the information may expose the authority to claims that it has not acted in accordance with its duties to safeguard children’s interests. On the other hand, sharing the information may expose the authority to claims that it has acted in excess of its powers and has otherwise breached the individual’s right to privacy under Article 8 ECHR. In the recent case of H & L v X City Council and Y City Council [2010] EWHC 466 (Admin), the Administrative Court considered this question in a case involving the disclosure of information by a local authority about a severely disabled man (H) who been convicted of indecent assault on a child. In this case, the council had made a variety of disclosures to organisations with which H was involved. It had also adopted a policy of considering on a case by case basis whether it should make disclosure of information relating to H to organisations with which he became involved in the future. In addition, the local authority had a policy of disclosing information to H’s personal care assistants, purportedly to protect any children those carers may bring into contact with H.

In a judgment which recognised the very strong imperative in favour of protecting children’s interests, Judge Langan QC held that the policies of disclosure to organisations with which H was involved constituted a proportionate interference with H’s Article 8 right to privacy and was otherwise lawful. In reaching this conclusion, the judge took into account the fact that the disclosures were fairly guarded in nature; were not made in lurid terms and did not go beyond what was required for the purpose of making a measured communication. The judge similarly held that the policy of notifying other organisations with which H came into contact in future on a case-by-case basis was a reasonable, proportionate and otherwise lawful policy. However, the judge took issue with the authority’s policy of notifying H’s care assistants. He held that this was a disproportionate measure, particularly in view of the facts that: two of the three long-term carers had no children; there was a ‘no children at work’ provision in the relevant employment contracts and, further, the terms of the disclosures would raise suspicions in the minds of the carers which was more grave than H’s past conduct justified. In reaching his conclusions on the various policies adopted by the council, the judge plainly had in mind the recent important Supreme Court judgment in R(L) v Commissioner of Police of the Metropolis [2009] 3 WLR 1056, where the Supreme Court held that it was no longer right to assume that priority must be given to the need to protect the vulnerable over the right to respect for the private life of the individual. What this case perfectly illustrates is the highly fact-sensitive approach which needs to be adopted in any case where the local authority is contemplating sharing information for child protection purposes. Tim Pitt-Payne appeared on behalf of the local authority

DNA DATABASE – A HOT ELECTION ISSUE

Posted on | by Anya Proops KC

It would seem that the approach to be taken to the retention of DNA on the Police National Database is going to be a hot election issue. The Government has for some time been seeking to introduce onto the statute books new legislation which would enable the DNA of persons who have not been convicted of any offence to be stored for up to six years (see my November 2009 post on this issue). However, a report in yesterday’s Guardian suggests that the Government may scrap the 6 year retention provision in order to get the remainder of the Crime and Security Bill passed into law before the election. Meanwhile, the Conservatives have proposed that the period of retention of DNA relating to unconvicted persons should be three years. The Government has attacked these proposals on the basis that they amount to a criminals charter. Of course, even if particular party political proposals with respect to the DNA database are effective in attracting the popular vote, that is not to say that they would find favour before the Strasbourg Court on a challenge brought under Article 8 ECHR (see further on this issue the Marper judgment discussed in my May 2009 post).

ACCESS TO PROPERTY SEARCH INFORMATION – TEST CASE IN THE ADMINISTRATIVE COURT

Posted on | by Anya Proops KC

This has been a particularly busy week so far as the law relating to accessing property search information is concerned. On 15 March, I blogged about a new Information Rights Tribunal judgment on the application of the Environmental Information Regulations 2004 (EIR) to requests for property search information – see my post. On 17-18 March 2010, the Administrative Court (Hickinbotham J) heard a test case judicial review of the policy of City of York Council on access to and charges for property search information under the Local Authorities (England) (Charges for Property Searches) Regulations 2008. The Claimant, Onesearch Direct Limited, maintains that all local authorities have an obligation under the 2008 Regulations to grant it direct access to their property records, and to charge no more than the cost of doing so. It is understood that Onesearch are pursuing their claim under the 2008 Regulations rather than the EIR in part because of the administrative inconvenience of having to wait up to 20 days to receive a response under the EIR (see r. 5(2) EIR). Judgment is expected on Friday 20 March 2010. Jason Coppel represents the Council.

CHARGING FOR PROPERTY SEARCH INFORMATION – IMPORTANT NEW TRIBUNAL JUDGMENT

Posted on | by Anya Proops KC

Anybody who has ever bought a property will know that property searches must be conducted as part of the process. Originally, it was the buyer who had to conducted the searches. However, following the introduction of the HIPs regime in 2007, it is now the seller’s responsibility. In tandem with the introduction of the HIPs regime, the Government introduced the Local Authorities (England) (Charges for Property Searches) Regulations 2008, which empower local authorities to charge for making property search information available to members of the public. However, importantly, those Regulations have to be applied in a way which does not, in effect, cut across the access regime afforded under the Environmental Information Regulations 2004 (EIR). This means that, in practice, it will often be the EIR which governs whether and to what extent local authorities can charge for making property search information available

In the recent case of East Riding of Yorkshire v IC & York Place, the Tribunal was called upon to determine the question of whether, on an application of the EIR, particular property search information should have been made available to a property search company free of charge. More particularly, the Tribunal had to determine whether the local authority: (a) was required to allow the company to inspect the information free of charge at the local authorities premises; or (b) was entitled to refuse inspection and make the information available by way of hard copy documents, for which a charge could be levied under r. 8 EIR. After having made a number of findings as to the weakness of certain aspects of the council’s evidence, the Tribunal went on to hold that the council ought in fact to have permitted the company to inspect the relevant records free of charge. This judgment is important both because of its careful examination of the principles relating to charging under the EIR and because of its implications for local authority charging regimes in respect of property search information. 11KBW’s Jane Oldham appeared on behalf of the council and Anya Proops appeared on behalf of the Information Commissioner.