Section 7(9) DPA is about privacy, not employment disputes

Disputes about subject access requests under section 7 of the Data Protection Act 1998 only rarely make their way to the Higher Courts. The leading – and often bedevilling – case of Durant is, for example, now 9 years old. Given this scarcity of precedent from the High Court and Court of Appeal, up-to-date illustrations of the judiciary’s approach to the DPA are most usefully sought in County Court judgments – see for example Panopticon’s post on the case of Elliot v Lloyds TSB Bank from earlier this year.

The most recent notable judgment is that of the County Court (HHJ May QC) in Professor Karim Abadir v Imperial College.

The applicant is an eminent econometrics professor employed by Imperial and has been since 2005. In 2011, Professor Abadir took issue when another professor at Imperial began to assess the academic staff by means of subjective metrics. The applicant objected to this, considering those metrics to be inappropriate for the academic staff in his department, and sought disclosure of the discussions that had taken place prior to their implementation.  Aggrieved, he made a subject access request. He was given some information, apparently of the human resources variety in the main. He objected to the nature of some of the comments which had been circulated about him and took the view that some of the emails he sought had been deleted. Imperial informed him in July that it would be implementing an email system upgrade and change of server in August. The applicant feared that some of the emails he wished to obtain would be permanently deleted. He sought an injunction preventing the systems work and requiring Imperial to search for and disclose to him “every document where reference is made” to him, including in deleted files.

Professor Abadir’s application was refused for a number of reasons.

Two reasons were matters of form, in that they related to what was missing from the application. The application was “objectionable” on the grounds that the applicant had not specified the nature of the underlying claim he would bring in due course. Also, assuming the underlying intended claim to be under section 7(9) of the DPA, the Judge expected the applicant to provide a draft order specifying exactly what information or searches he sought. The applicant had not done so. Instead, he asked for “generalised search of all computer systems, to include deleted data”.

Two further reasons were fatal in substantive terms. One was that there was no evidence to support the claim that the systems work would lead to the permanent loss of relevant emails. In fact, Imperial’s evidence contradicted that. There was thus no urgency to justify granting an injunction.

The final reason concerned the purpose or motive behind Professor Abadir’s claim. It was confirmed that his purpose was “to obtain disclosure of documents for purposes of deciding how to frame and pursue against Imperial College employment grievances which Prof Abadir believes he has. Put this way, the process by which documents are sought, given the purpose to which they are intended to be put, is much more akin to an application for pre-action disclosure.  It is disclosure, not right of access to personal data, which Prof Abadir is really seeking from Imperial College.”

On this point, HHJ May QC concluded that “disclosure is sought is not for the purposes of protecting Prof Abadir’s privacy but for the purposes of pursuing a claim against his employer.  To use the provisions of the DPA to pursue such a purpose is an abuse: Ezsias v The Welsh Ministers”.

Unusually, the Judge also awarded the University costs on an indemnity basis. In part, this was because the applicant had failed to identify the underlying cause of action, or to contact Imperial to make enquiries about its server changes before issuing his application for an injunction. HHJ May QC also concluded as follows: “to the extent that the injunction was sought for the purposes of supporting an intended action for DPA disclosure, it was clearly misconceived.  To seek disclosure under the DPA for the purposes of considering an employment claim is an abuse.  In any event, as DPA proceedings are for the purposes of protecting privacy, deletion/destruction of documents would not be contrary to those purposes, quite the reverse.”

It is apparent, therefore, that Courts continue to be unimpressed by the pursuit of subject access requests motivated by prospective litigation, and that they tend to see privacy concerns (rather than employment grievances) as the underlying rationale for the right of access to personal data. This will be welcomed by many data controllers.

Anya Proops appeared for Imperial College.

Robin Hopkins