Section 40 FOIA provides for a number of exemptions in respect of ‘personal data’. The exemption which is most frequently prayed in aid by public authorities is the one provided for under s. 40(2), read together with s. 40(3)(a)(i). In essence, under these provisions, information will be absolutely exempt from disclosure under FOIA if: (a) it amounts to personal data, as defined in s. 1 of the Data Protection Act 1998 (“DPA”) and (b) its disclosure would contravene one or more of the data protection principles provided for under schedule 1 to the DPA. In practice, it can be very difficult to apply this exemption, particularly where the information in issue may comprise personal data relating to a number of different individuals. It was precisely this issue which the Tribunal had to tackle in the recent case of Bryce v IC & Cambridgeshire Constabulary (EA/2009/0083). In Bryce, a request had been made by Ms Bryce for disclosure of a police investigation report. The report addressed concerns which had been raised by Ms Bryce and others about the way in which the Cambridgeshire Constabulary had investigated the death of Ms Bryce’s sister, who had been killed by her husband. The Tribunal held that the report contained a multiplicity of different types of personal data including: Ms Bryce’s personal data; the husband’s personal data; personal data relating to the husband’s family; the personal data of witnesses; personal data relating to the deceased’s family; and personal data relating to officers who had conducted the investigation. Apart from Ms Bryce’s own personal data, which was exempt from disclosure under s. 40(1) FOIA, the Tribunal approached the question of how the s. 40(2) exemption applied to the remaining data by conducting a discrete analytical exercise in respect of each type of data. It is clear from the Tribunal’s analysis that it was of the view that very different considerations applied, for example, in respect of officers’ data as compared with the data relating to the husband’s family. The key implication of this judgment is that a public authority will expose itself to challenge under FOIA if it simply adopts a blanket ‘one size fits all’ approach to information comprising diffuse types of personal data. The judgment is also notable in that it applies the approach to the concept of ‘personal data’ which was approved in Durant v Financial Services Authority, rather than the arguably more liberal approach embodied in the Commissioner’s guidance: ‘Determining What is Personal Data’.
Tag: section 40 FOIA
LATEST TRIBUNAL DECISION ON THE ‘PERSONAL DATA’ AND ‘COST OF COMPLIANCE’ EXEMPTIONS
The Tribunal’s first decision in the case of Alasdair Roberts v IC and Department for Business, Innovation & Skills (EA/2009/0035) established the controversial principle that the s. 36 exemption only applies where the opinion of the ‘qualified person’ was reached by the time the request was responded to: see Anya Proops’ post on that decision. DBIS was therefore not entitled to rely on s. 36 in refusing Mr Roberts’ request. Its refusal was, however, upheld in the Tribunal’s second decision in this case, which provides the latest word on the s. 40 ‘personal data’ exemption.
In particular, this case concerned the first data protection principle (processing must be fair and lawful and meet a Schedule 2 condition) and paragraph 6(1) of Schedule 2 to the DPA 1998. That condition is that “the processing is necessary for the purposes of legitimate interests pursued by the data controller or by the third party or parties to whom the data are disclosed, except where the processing is unwarranted in any particular case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject”.
Two notable points about the application of this principle emerge.
First – on whether the processing would be fair – senior civil servants (Grade 5 or above) do not have a reasonable expectation of anonymity in respect of any document, no matter how sensitive. More junior civil servants might have reasonable expectations: this will be less cogent where the job is “public-facing” (such as a Job Centre manager), and more cogent where the information is controversial (such as information about animal testing).
Secondly – on legitimate interests of ‘parties to whom the data are disclosed’ – the Tribunal found that the requester’s strong individual interest (for research purposes) was not sufficient to override the fact that this information was of very little interest to the world at large (to whom disclosure is, in the eyes of FOIA, to be made).
This decision also offers further guidance on what can be included within the ‘cost of compliance’ for s. 12 purposes. The Tribunal accepted the established principle that costs of redacting names are to be excluded, but qualified this as follows: “that may be appropriate where the task is simply to locate individuals’ names and redact them… but where, as here, the process requires a judgment to be made, document by document, balancing the various criteria we have identified, then we believe that much, if not all, of the process should be regarded as retrieving from each document the information which requires to be disclosed and therefore properly included in the cost estimate”.
THE PERSONAL IS POLITICAL – ACCESSING NICK GRIFFIN TRIAL RECORDS UNDER FOIA
The Guardian reports today that the CPS has refused a request for disclosure of its records of the 1998 race-hate trial of Nick Griffin. In the year before he was elected leader of the BNP, Mr Griffin was given a suspended prison sentence after being convicted of an offence under the Public Order Act 1986. The prosecution case centred on a magazine edited by Mr Griffin in which he dismissed the Holocaust as a hoax. The Guardian’s article indicates that the paper requested disclosure of the CPS’s records of the trial in circumstances where no transcript had been made of the hearing. It would appear that the request was refused by the CPS under s. 40 FOIA (the personal data exemption) and, in particular, on the basis that a large proportion of the requested information was ‘sensitive personal data’ as it related to the commission of an offence and Mr Griffin’s political opinions (see section 2 of the Data Protection Act 1998). It would appear that the Guardian will now lodge a complaint with the Information Commissioner. For an example of how the Information Tribunal applied s. 40 FOIA to a request for disclosure of personal data about individuals who had been made subject to ASBOs see further Camden v IC EA/2007/21
Abortion statistics: identification of patients and doctors held to be unlikely
In 2003, the Department of Health significantly reduced the detail of publicly available statistics on abortion operations: for example, no information was any longer to be released about post-24-week abortions carried out on the grounds of foetal medical defects. The Department relied principally on s. 40 FOIA in refusing the Prolife Alliance’s request for more detailed data. The Information Tribunal has, however, ordered the statistics to be disclosed: see Department of Health v IC (Additional Party: the Pro Life Alliance) (EA/2008/0074). The Tribunal agreed with the Department that the requested abortion statistics, although entirely anonymised, did constitute personal data because they were not anonymous in the hands of the data controller. The Department’s principal concern, namely the inferential identification of doctors or patients, was not, however considered ‘likely’ in the circumstances. This factual finding meant that, in the Tribunal’s view, the release of the requested personal data was fair and lawful and that (under paragraph 6(1) of Schedule 2 to the DPA) the potential prejudice to patients and doctors was outweighed by legitimate third party interests in (inter alia) monitoring compliance with abortion law, identifying abortion trends, informing public debate and encouraging accountability of medical practitioners. The decision is of note for its detailed analysis of the ways in which individuals might be identified from statistical data, and for the Tribunal’s reliance on the Corporate Officer of the House of Commons litigation (in its various stages) for guidance on the balancing test under paragraph 6(1) of Schedule 2 to the DPA.
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.
ABORTION STATISTICS AND PERSONAL DATA
The Information Tribunal will this week begin hearing an important appeal against a decision of the Information Commissioner that certain abortion statistics relating to ground (e) abortions (abortions in cases of disability) were disclosable under section 1 FOIA. The appeal concerns in particular the interesting and difficult question of whether and to what extent ostensibly anonymous, statistical information can nonetheless constitute ‘personal data’ for the purposes of the personal data exemption provided for under section 40 FOIA. Before the Commissioner, the DH argued that, whilst the information in the abortion statistics does not per se identify any particular individual, because the statistics themselves relate to a relatively small number of cases, it would still be possible to identify particular patients and/or doctors who have carried out the abortions, particularly if the statistics were married either with other information held by the DH or already in the public domain. The Commissioner was not persuaded by that argument. He held that the statistical information was so far removed from the information on the Abortion Notification forms from which the information was derived that it no longer retained the attributes of personal data. The proposition that proximity to identifying information should be the barometer of whether particular anonymous information constitutes ‘personal data’ is likely to be hotly contested before the Tribunal. Watch this space for further news! Tim Pitt-Payne will be appearing on behalf of the Commissioner.