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’.
Disclosing Disciplinary Records Under FOIA
June 16th, 2009 by Anya ProopsThe 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.