Disclosing Disciplinary Records Under FOIA

The Information Tribunal has recently handed down a decision in which it upheld the Commissioner’s conclusion that information as to judges’ serious misconduct was exempt from disclosure under the personal data exemption provided for under s. 40(2)(c) FOIA – Guardian Newspapers v IC (EA/2008/0084). The decision is interesting not least because it highlights the Tribunal’s continuing reluctance to treat personal data concerning disciplinary matters as being disclosable under FOIA (see further on this point the earlier cases of Waugh v IC & Doncaster College (EA/2007/0060) and Roger Salmon v IC & King’s College (EA/2007/0135)). Notably, the Tribunal also held that the information in question was exempt under s. 31(1)(c) FOIA (administration of justice exemption).

The central issue in the appeal was whether disclosure of the information would contravene the first data protection principle (DPP1) contained in Schedule 1 to the Data Protection Act 1998 (DPA) and, hence, render the information absolutely exempt from disclosure under s. 40(2)(c) FOIA. The Tribunal held that DPP1 would be contravened. In reaching this conclusion, the Tribunal took into account in particular the facts that:

·         the DPA contained an exclusion which prevented judicial office holders themselves gaining access to data which revealed assessments of their ‘suitability to hold judicial office’ and it would be an odd result if third parties could access such data under FOIA but the data subjects themselves could not (para. 91);


·         some of the information would amount to sensitive personal data which would require that one of the stringent conditions contained in Schedule 3 be met in order for the disclosure to be in accordance with DPP1 (para. 92);


·         some information was already in the public domain as to the fact and scope of reprimands  or serious actions (para. 93);


·         the judges themselves would have a reasonable expectation that their disciplinary record would be kept confidential (para. 96);


·         there would a risk that judges would suffer great distress if the information were to be disclosed and, further, that their future authority and their future employment prospects would be jeopardised (para. 97).


In addition the Tribunal held that s. 31(1)(c) FOIA was engaged in respect of the information and that the public interest weighed in favour of maintaining that exemption. In reaching this conclusion, the Tribunal took into account in particular the fact that, in its view, disclosure of the information would undermine a judge’s authority while carrying out his or her judicial function and would otherwise disrupt the judicial process by encouraging legal representatives to seek adjournments by reason of alleged concerns about the judge’s good standing (para. 106). 11KBW’s Karen Steyn appeared on behalf of the Ministry of Justice.