Disclosing child protection information: make sure you ask the right questions first

High-profile revelations in recent years illustrate the importance of public authorities sharing information on individuals who are of concern in relation to child protection matters. When inaccurate information is shared, however, the consequences for the individual can be calamitous.

AB v Chief Constable of Hampshire Constabulary [2015] EWHC 1238 (Admin) is a recent High Court judgment (Jeremy Baker J) which explores the implications of such inaccurate disclosures. The case is not only about inaccuracies per se, but about why those inaccuracies were not picked up before the disclosure was made.

Perhaps the most notable point from the judgment is this: if such a disclosure is to be necessary, then the data controller must take care to ask themselves reasonable questions about that information, check it against other obvious sources, and make necessary enquiries before disclosure takes place.

In other words, failure to ask the right questions can lead to the wrong course of action in privacy terms. Here is how that principle played out in the AB case.

Background

In 2010, AB was summarily dismissed from his job as a science teacher for inappropriate comments and conduct with potential sexual undertones, as well as a failure to maintain an appropriately professional boundary with students. His appeal against dismissal failed. The Independent Safeguarding Authority, however, decided not to include AB on its barred lists. The General Teaching Council also investigated AB, but it did not find that the allegations of improper conduct were made out.

AB’s dismissal, however, came to the attention of a member of the child abuse investigation public protection unit of the Hampshire Constabulary. Enquiries were made of the college, and certain email correspondence and records were generated and retained on police systems.

Later the following year, AB was offered a teaching job elsewhere. This came to the police’s attention in 2013. There was internal discussion within the police about this. One officer said in an email that, among other things (i) AB had also been dismissed from another school, and (ii) AB’s 2010 dismissal had involved inappropriate touching between himself and pupils. There was no evidence that either of those points was true. That email concluded “From What I’ve been told he should be nowhere near female students. I will put an intel report in on [AB]”.

The above information was passed to the Local Authority Designated Officer (‘LADO’) and in turn to the school, who terminated AB’s employment. He then made a subject access request under the DPA, by which he learnt of the above communication, and also the source of that information, which was said to be a notebook containing a police officer’s notes from 2010 (which did not in fact record either (i) or (ii) above). AB complained of the disclosure and also of the relevant officer’s failures to follow the requisite safeguarding procedures. The police dismissed his complaint.

The Court’s judgment

AB sought judicial review of both the disclosure of the inaccurate email in the email, and of the dismissal of his complaint about the police officer’s conduct in his reporting of the matter.

The Court (Jeremy Baker J) granted the application on both issues. I focus here on the first, namely the lawfulness of the disclosure in terms of Article 8 ECHR.

Was the disclosure “in accordance with the law” for Article 8 purposes?

The Court considered the key authorities in this – by now quite well-developed – area of law (Article 8 in the context of disclosures by the police), notably:

MM v United Kingdom [2010] ECHR 1588 (the retention and disclosure of information relating to an individual by a public authority engages Article 8, and must therefore be justified under Article 8(2));

Tysiac v Poland (2007) 45 EHRR 42, where the ECtHR stressed the importance of procedural safeguards to protecting individuals’ Article 8 rights from unlawful interference by public bodies;

R v Chief Constable of North Wales Ex. Parte Thorpe [1999] QB 396: a decision about whether or not to disclose the identity of paedophiles to members of the public, is a highly sensitive one. “Disclosure should only be made when there is a pressing need for that disclosure”);

R (L) v Commissioner of Police for the Metropolis [2010] 1 AC 410: such cases are essentially about proportionality;

R (A) v Chief Constable of Kent [2013] EWCA Civ 1706: such a disclosure is often “in practice the end of any opportunity for the individual to be employed in an area for which an [Enhanced Criminal Record Certificate] is required. Balancing the risks of non-disclosure to the interests of the members of the vulnerable group against the right of the individual concerned to respect for his or her private life is a particularly sensitive and difficult exercise where the allegations have not been substantiated and are strongly denied”;

R (T) v Chief Constable of Greater Manchester Police & others [2015] AC 49 and R (Catt) v ACPO [2015] 2 WLR 664 on whether disclosures by police were in accordance with the law and proportionate.

The Court concluded that, in light of the above authorities, the disclosure made in AB’s case was “in accordance with the law”. It was made under the disclosure regime made up of: Part V of the Police Act 1997, the Home Office’s Statutory Disclosure Guidance on enhanced criminal records certificates, section 10 of the Children Act 2004 and the Data Protection Act 1998.

See Jeremy Baker J’s conclusion – and notes of caution – at [73]-[75]:

“73. In these circumstances it seems to me that not only does the common law empower the police to disclose relevant information to relevant parties, where it is necessary for one of these police purposes, but that the DPA 1998, together with the relevant statutory and administrative codes, provide a sufficiently clear, accessible and consistent set of rules, so as to prevent arbitrary or abusive interference with an individual’s Article 8 rights; such that the disclosure will be in accordance with law.

74. However, it will clearly be necessary in any case, and in particular in relation to a decision to disclose information to a third party, for the decision-maker to examine with care the context in which his/her decision is being made.

75. In the present case, although the disclosure of the information by the police was to a LADO in circumstances involving the safeguarding of children, it also took place in the context of the claimant’s employment. The relevance of this being, as DC Pain was clearly aware from the contents of his e-mail to PS Bennett dated 10th June 2013, that the disclosure of the information had the potential to adversely affect the continuation of the claimant’s employment at the school….”

Was the disclosure proportionate?

While the disclosure decision was in accordance with the law, this did not remove the need for the police carefully to consider whether disclosure was necessary and proportionate, particularly in light of the serious consequences of disclosure for AB’s employment.

The Court held that the disclosure failed these tests. The crucial factor was that if such information about AB was well founded, then it would have been contained in his Enhanced Criminal Record Certificate – and if it was not, this would have prompted enquiries about the cogency of the information (why, if it was correct, was such serious information omitted from the ECRC?) which would reasonably have been pursued to bottom the matter out before the disclosure was made. These questions had not been asked in this case. See [80]-[81]:

“… In these circumstances, it was in my judgment, a necessary procedural step for DC Pain to ascertain from the DBS unit as to, whether, and if so, what information it had already disclosed on any enhanced criminal record certificate, as clearly if the unit had already disclosed the information which DC Pain believed had been provided to him by the college, then it would not have been necessary for him to have made any further disclosure of that information.

81. If either DC Pain or PS Bennett had taken this basic procedural step, then not only would it have been immediately obvious that this information had not been provided to the school, but more importantly, in the context of this case, it would also have been obvious that further enquiries were required to be made: firstly as to why no such disclosure had been made by the DBS unit; and secondly, once it had been ascertained that the only information which was in the possession of the DBS unit was the exchange of e-mails on the defendant’s management system, as to the accuracy of the information with which DC Pain believed he had been provided by the college.”

Judicial reviews of disclosure decisions concerning personal data: the DPA as an alternative remedy?

Finally, the Court dealt with a submission that judicial review should not be granted as this case focused on what was essentially a data protection complaint, which could have been taken up with the ICO under the DPA (as was suggested in Lord Sumption’s comments in Catt). That submission was dismissed: AB had not simply ignored or overlooked that prospect, but had rather opted to pursue an alternative course of complaint; the DPA did not really help with the police conduct complaint, and the case raised important issues.

Robin Hopkins @hopkinsrobin

Section 13 DPA in the High Court: nominal damage plus four-figure distress award

Given the paucity of case law, it is notoriously difficult to estimate likely awards of compensation under section 13 of the Data Protection Act 1998 for breaches of that Act. It is also very difficult to assess any trends in compensation awards over time.

AB v MoJ [2014] EWHC 1847 (QB) is the Courts’ (Mr Justice Jeremy Baker) latest consideration of compensation under the DPA. The factual background involves protracted correspondence involving numerous subject access requests. Ultimately, it was held that the Defendant failed to provide certain documents to which the Claimant was entitled under section 7 of the DPA within the time frames set out under that section.

Personal data?

There was a dispute as to whether one particular document contained the Claimant’s ‘personal data’. Baker J noted the arguments from Common Services Agency, and he is not the first to observe (at his paragraph 50) that it is sometimes not a ‘straightforward issue’ to determine whether or not information comes within the statutory definition of personal data. Ultimately, he considered that the disputed document did not come within that definition: it “is in wholly neutral terms, and is indeed merely a conduit for the provision of information contained in the letters which it enclosed which certainly did contain the claimant’s personal data”.

Nonetheless, the DPA had been breached in virtue of the delays in the provision of other information to which the Claimant was entitled under section 7. What compensation should he be awarded?

Damage under section 13(1) DPA

Baker J was satisfied, having considered In Halliday v Creation Consumer Finance Limited [2013] EWCA Civ 333, [2013] 2 Info LR 85 (where the same point was conceded), that nominal damage sufficed as ‘damage’ for section 13(1) purposes: “In this regard the word “damage” in this sub-section is not qualified in any way, such that to my mind provided that there has, as in this case, been some relevant loss, then an individual who has also suffered relevant distress is entitled to an award of compensation in respect of it”.

Here the Court was satisfied that nominal damages should be awarded. The Claimant had spent a lot of time pursuing his requests, albeit that much of that time also involved pursuing requests on clients’ behalves, and albeit that no actual loss had been quantified:

“Essentially the claimant is a professional man who, it is apparent from his witness statement, has expended a considerable amount of time and expense in the pursuit of the disclosure of his and others’ data from various Government Departments and other public bodies, including the disclosed and withheld material from the defendant. Having said that, the claimant has not sought to quantify his time and expense, nor has he allocated it between the various requests on his own and others’ behalves. In these circumstances, although I am satisfied that he has suffered damage in accordance with s.13(1) of the DPA 1998, I consider that this is a case in which an award of nominal damages is appropriate under this head, which will be in the conventional sum of £1.00.”

Distress under section 13(2) DPA

That finding opened the door to an award for distress. The Court found that distress had been suffered, although it was difficult to disentangle his distress attributable to the breaches of the DPA from his distress as to the other surrounding circumstances: “doing the best I am able to on the evidence before me I consider that any award of compensation for distress caused as a result of the relevant delays in this case, should be in the sum of £2,250.00”.

Until this week, Halliday was the Courts’ last reported (on Panopticon at any rate) award of compensation under section 13 DPA. That was 14 months ago. In AB, the Court awarded precisely triple that sum for distress.

For a further (and quicker-off-the-mark) discussion of AB, see this post on Jon Baines’ blog, Information Rights and Wrongs.

Robin Hopkins @hopkinsrobin