¶ ile paragrafa bağlantı verin veya alıntıyı künyesiyle kopyalayın. Üretilen bağlantı kimlikleri resmî paragraf numarası değildir.
IN THE FIRST-TIER TRIBUNAL Case No. EA/2011/0047
GENERAL REGULATORY CHAMBER
INFORMATION RIGHTS
ON APPEAL FROM:
The Information Commissioner’s Decision Notice No: FS50300474
Dated: 20 January 2011
Appellant: Christopher Quinn
Respondent: Information Commissioner
Additional Party: Hampshire Constabulary
On the papers
Heard at: Field House London
Date of hearing: 31 August 2011
Date of decision: 20 September 2011
Before
Angus Hamilton
Tribunal Judge
And
David Wilkinson
and
Michael Jones
Subject matter: 40 Freedom of Information Act 2000
Appeal No.: EA/2010/0151
Cases considered:
Kelway v IC & Chief Constable of Northumbria Police EA/2008/0037
Durant v Financial Services Authority [2003] EWCA Civ 1746
DECISION OF THE FIRST-TIER TRIBUNAL
The Tribunal dismisses the appeal for the reasons set out below.
-2-
Appeal No.: EA/2010/0151
REASONS FOR DECISION
Introduction
1. The factual background to this appeal has been very ably set out by
the Commissioner in his Response to Mr Quinn’s appeal. That
summary reads as follows:
2. The Regulation of Investigatory Powers Act (‘RIPA’) regulates the
powers of public bodies to carry out surveillance and investigation and
covers the interception of communications. For example, the Act
enables certain public bodies to demand that someone hands over
cryptographic keys to encrypted digital data. Under section 53 of RIPA:
“(1)A person to whom a section 49 notice has been given is guilty
of an offence if he knowingly fails, in accordance with the notice,
to make the disclosure required by virtue of the giving of the
notice”.
3. On 24 November 2009, an article was published in The Register (‘the
article’), about an individual, identified only by the initials JFL, who was
sentenced under Part III of RIPA The article states that the individual’s
“crime was a persistent refusal to give counter-terrorism police the keys
to decrypt his computer files.”
4. By email dated 24 November 2009 the Appellant, having encountered
the article, wrote to the Hampshire Constabulary (‘the Constabulary’)
making the following request:
5. “Please let me have all information relating to people convicted
under the refusal to decrypt legislation, like mentioned in
http://www.theregister.co.uk/2009/11/24/ripa_jfl/” (‘the request’).
-3-
Appeal No.: EA/2010/0151
6. The Appellant made the same request to a number of other public
authorities.
7. By email dated 24 November 2009 the Constabulary sought
clarification of the Appellant’s request, asking the Appellant to provide
“additional details as to the information you are actually seeking
when you refer to ‘all information’. We also need date
parameters.”
8. The Appellant replied by email the same day (24 November), advising
the Constabulary as follows:
9. “I’m seeking information about what happened; whether it was indeed
as the article appeared to report; whether for example there was any
significant risk of terrorist attack from any of the individuals
convicted and what evidence there was for this; what matter. I was
mostly interested in the case mentioned in the article, but would like to
know of any others. Dates from when the legislation was brought into
force to present, but again mostly that where JFL was serve with a
section 49 notice, and any interviews that may have been
conducted at Fareham station (it wasn’t clear from the article
whether any had, which is part of the reason I’m making a fairly
broad request) or anywhere else you might hold information for. I
don’t need details like name and address, or similar irrelevant personal
details, but would like to know what regard was taken of the
mental health of JFL as I think that is relevant to the appropriateness
of the legislation compared to what MPs said it would be for.”
10. The Constabulary responded to the request on 19 January 2010,
describing the request as follows:
a. Point 1 – The information requested in the highlighted parts of the
above email (‘point 1’)
-4-
Appeal No.: EA/2010/0151
b. Point 2 – All information relating to people convicted under the
refusal to decrypt legislation (‘point 2’).
11. With respect to point 1, it neither confirmed nor denied that it held the
information, citing the exemptions in section 40(5), 30(3), 23(5), 24(2),
38(2) and 31(3) of the Act. With respect to point 2, the Constabulary
told the Appellant that it “does not hold this information as the answer
is zero.”
12. The decision in relation to point 1 was upheld following an internal
review. In the Constabulary’s internal review response, it highlighted
those parts of the Appellant’s clarification of the request provided in his
email of 24 November 2009 which led it to continue neither to confirm
nor deny that information was held.
13. The complainant complained to the Commissioner on 3 June 2010
challenging the decision to withhold the information requested.
14. At the outset of his investigation, the Commissioner advised the
Appellant in correspondence that, unless he heard from him to the
contrary, the scope of his investigation would be to determine whether
or not the Constabulary was correct neither to confirm nor deny
whether it held the information referred to as Point 1 in its
correspondence. As the Commissioner did not hear anything back from
the Appellant, the Commissioner undertook his investigation on that
basis.
15. The Commissioner issued a Decision Notice dated 20 January 2011 in
relation to this matter in accordance with s. 50 of the Act. The Decision
Notice stated that the Constabulary had correctly relied on section
40(5) of the Act and as such, required no steps to be taken.
-5-
Appeal No.: EA/2010/0151
The appeal to the Tribunal
16. On 16 February Mr Quinn submitted an appeal to the Tribunal (IRT).
His Grounds of Appeal are set out in the Open Bundle of Documents
before us at pp 20-21.
17. The Commissioner in paragraph 23 of his Response sets out what he
believed were the Appellant’s grounds of appeal. The Appellant, in his
reply to the Commissioner’s Response did not dispute that the
Commissioner’s analysis represented the grounds upon which he was
appealing against the Commissioner’s Decision Notice. The
Commissioner’s analysis of the grounds of appeal is:
i) The Commissioner erred when considering the scope of the
Appellant’s request.
ii) The Commissioner erred in concluding that the information
requested would constitute personal data.
iii) The Commissioner erred in concluding that the Constabulary
were correct to rely upon section 40(5) of the Act.
The questions for the Tribunal
18. Accordingly the Tribunal adopted this analysis as the questions to be
considered in this appeal.
Evidence
19. All parties have agreed that this matter should be considered ‘on the
papers’ only and we have heard no live evidence or oral submissions.
No parties or representatives have attended the hearing.
-6-
Appeal No.: EA/2010/0151
20. We have considered, from the Appellant, the Notice and Grounds of
Appeal and supporting documents together with quite extensive email
correspondence submitted by Mr Quinn to the Tribunal.
21. We have considered, from the Commissioner, the Decision Notice, the
Response to Appeal and the final submissions.
22. We have considered, from Hampshire Constabulary their Response to
Mr Quinn’s Appeal.
Conclusion and remedy
23. We considered first of all Mr Quinn’s complaint that the scope of his
request has been misinterpreted by the Commissioner (and indeed
initially by Hampshire Constabulary). We examined the
correspondence between the parties and we also considered the
wording of the initial request from the Appellant to the Constabulary
dated 24 November 2009 and the clarification contained in the email of
the same date. We concluded that, in light of the wording of the request
and clarification and in light of Mr Quinn’s failure to provide any written
challenge or response to the Commissioner’s interpretation of his
complaint (paragraph 14 above), the Commissioner was correct to limit
his investigation in the way he did.
24. In the Tribunal’s view the second question is closely tied to the first. Mr
Quinn contends that the information he was seeking was far wider than
the information highlighted in paragraph 9 above (‘point 1’) and
because it was far wider could not be categorised, or could not be
wholly categorised, as personal data. In his grounds of appeal the
Appellant gave as examples of the information he sought, namely
“copies of legislation, guidance for/by the police on using the
Regulation of Investigatory Powers Act and guidance on dealing with
vulnerable people” The Tribunal, as confirmed by the preceding
paragraph, have accepted that the Commissioner was correct to limit
-7-
Appeal No.: EA/2010/0151
his investigation to the ‘point 1’ issues. The Tribunal also considered
that the ‘point 1’ issues were unequivocally personal data and indeed
sensitive personal data. The Tribunal accepted and adopted the
analysis on this issue by the Commissioner which is set out in
paragraphs 34-45 of the Commissioner’s Response to the Appeal. For
the sake of completeness a copy of the Commissioner’s Response is
appended to this Judgement as Appendix A.
25. In relation to the third question described in paragraph 17 above - the
Tribunal was again assisted by the Commissioner’s analysis set out in
paragraphs 48-56 of the Commissioner’s Response and the Tribunal
approved and adopted that analysis. Consequently the Tribunal
concluded that the Commissioner was correct to decide that the
exemption in section 40(5)(b)(i) of the Act is engaged with respect to all
of the information falling within the scope of the request.
26. Mr Quinn’s appeal is consequently dismissed. The Tribunal did note,
and Mr Quinn may wish to note, the indication from Hampshire
Constabulary in its Response to his Appeal that had Mr Quinn made a
request to the public authority for the information that he says he
intended to seek namely “copies of legislation, guidance for/by the
police on using the Regulation of Investigatory Powers Act and
guidance on dealing with vulnerable people” then he “would have been
informed that this information is publicly available, either on the
Hampshire Constabulary website, the Surveillance Commissioner’s
website or enshrined in legislation which is easily located on the
Internet” (The public authority’s Response at page 47 of the Open
Bundle)
Our decision is unanimous
Angus Hamilton DJ(MC)
Tribunal Judge Date: 20 September 2011
-8-
Appeal No.: EA/2010/0151
Appendix A
IN THE MATTER OF AN APPEAL TO THE FIRST TIER TRIBUNAL
(INFORMATION RIGHTS)
UNDER SECTION 57 OF THE FREEDOM OF INFORMATION ACT 2000
EA/ 2011/0047
B E T W E E N:-
CHRISTOPHER QUINN Appellant
-And-
THE INFORMATION COMMISSIONER
Respondent
RESPONSE
BY THE INFORMATION COMMISSIONER
Introduction
1. This Response is served in accordance with Rule 23 of the Tribunal Procedure
(First Tier Tribunal) (General Regulatory Chamber) Rules 2009.
2. Christopher Quinn (“The Appellant”) is appealing against the Information
Commissioner’s (“the Commissioner”) Decision Notice (ref FS50300474) dated
20 January 2011. The appeal is brought under section 57 of the Freedom of
Information Act 2000 (“the Act”).
3. The Commissioner intends to oppose this appeal. The grounds upon which he
relies are set out below.
Legislative Framework
-9-
Appeal No.: EA/2010/0151
4. The Act came into force on 1st January 2005.
5. Under section 1(1) of the Act a person who has made a request to a ‘public
authority’ for information is, subject to other provisions of the Act: (a) entitled to
be informed in writing whether it holds the information requested (section 1(1)
(a)) and (b) if it does, to have that information communicated to him (section 1(1)
(b)).
6. The duty to provide the requested information imposed under section 1(1) (b) will
not arise where the information is itself exempted under provisions contained in
Part II of the Act. The exemptions provided for under Part II fall into two classes:
absolute exemptions and qualified exemptions. Where the information is subject
to a qualified exemption, it will only be exempted from disclosure if, in all the
circumstances of the case, the public interest in maintaining the exemption
outweighs the public interest in disclosing the information (this is the public
interest test – see section 2(2) of the Act).
7. Under section 50(1) of the Act, any person may apply to the Commissioner for a
decision whether, in any specified respect, a request for information made by the
complainant to a public authority has been dealt with in accordance with the
requirements of Part I of the Act.
8. Except where a complainant has failed to exhaust a local complaints procedure, or
where the complaint is frivolous or vexatious, subject to undue delay, or has been
withdrawn or abandoned, the Commissioner has a duty to consider whether the
- 10 -
Appeal No.: EA/2010/0151
request has been dealt with in accordance with the requirements of Part I of the
Act and to issue a Decision Notice to both the complainant and public authority.
9. Where the Commissioner decides that a public authority has failed to
communicate information, or to provide confirmation or denial, in a case where it
is required to do so by section 1(1), or has failed to comply with any of the
requirements of sections 11 and 17, the Decision Notice must specify the steps
which must be taken by the authority for complying with that requirement and the
period within which they must be taken.
10. Where a Decision Notice has been served, the complainant or the public authority
may then appeal against the Notice under s 57 of the Act.
Factual Background to this Appeal
11. The Regulation of Investigatory Powers Act (‘RIPA’) regulates the powers of
public bodies to carry out surveillance and investigation and covers the
interception of communications. For example, the Act enables certain public
bodies to demand that someone hands over cryptographic keys to encrypted
digital data. Under section 53 of RIPA, “(1)A person to whom a section 49 notice
has been given is guilty of an offence if he knowingly fails, in accordance with the
notice, to make the disclosure required by virtue of the giving of the notice”.
12. On 24 November 2009, an article was published in The Register (‘the article’),
about an individual, identified only by the initials JFL, who was sentenced under
Part III of RIPA The article states that the individual’s “crime was a persistent
refusal to give counter-terrorism police the keys to decrypt his computer files.”
- 11 -
Appeal No.: EA/2010/0151
Request by Complainant
13. By email dated 24 November 2009 (12.45) the Appellant wrote to the Hampshire
Constabulary (‘the Constabulary’) making the following request:
“Please let me have all information relating to people convicted under the refusal
to decrypt legislation, like mentioned in
http://www.theregister.co.uk/2009/11/24/ripa_jfl/” (‘the request’).
The Appellant made the same request to a number of other public authorities.
14. By email dated 24 November 2009 (14.14), the Constabulary sought clarification
of the Appellant’s request, asking the Appellant to provide “additional details as
to the information you are actually seeking when you refer to ‘all information’.
We also need date parameters.”
15. The Appellant replied by email the same day (24 November 14.32), advising the
Constabulary as follows:-
“I’m seeking information about what happened; whether it was indeed as the
article appeared to report; whether for example there was any significant risk of
terrorist attack from any of the individuals convicted and what evidence there
was for this; what matter. I was mostly interested in the case mentioned in the
article, but would like to know of any others.”
“Dates from when the legislation was brought into force to present, but again
mostly that where JFL was serve with a section 49 notice, and any interviews that
may have been conducted at Fareham station (it wasn’t clear from the article
whether any had, which is part of the reason I’m making a fairly broad request)
or anywhere else you might hold information for.
- 12 -
Appeal No.: EA/2010/0151
“I don’t need details like name and address, or similar irrelevant personal details,
but would like to know what regard was taken of the mental health of JFL as I
think that is relevant to the appropriateness of the legislation compared to what
MPs said it would be for.”
16. The Constabulary responded to the request on 19 January 2010, describing the
request as follows:-
i) Point 1 – The information requested in the highlighted parts of the above
email (‘point 1’)
ii) Point 2 – All information relating to people convicted under the refusal to
decrypt legislation (‘point 2’).
17. With respect to point 1, it neither confirmed nor denied that it held the
information, citing the exemptions in section 40(5), 30(3), 23(5), 24(2), 38(2) and
31(3) of the Act. With respect to point 2, the Constabulary told the Appellant that
it “does not hold this information as the answer is zero.”
18. The decision in relation to point 1 was upheld following an internal review. In the
Constabulary’s internal review response, it highlighted those parts of the
Appellant’s clarification of the request provided in his email of 24 November
2009 which led it to continue neither to confirm nor deny that information was
held. On this basis, the Commissioner understood that the Constabulary
considered that the requested information related to:-
i) whether there was any significant risk of terrorist attack from any of the
individual(s) convicted under the legislation and what evidence there was for
this;
- 13 -
Appeal No.: EA/2010/0151
ii) whether any interviews concerning the individual referred to in the article
were conducted at Fareham police station; and
iii) whether the mental state of the individual referred to in the article was
considered during the course of any investigation 1 .
19. The complainant complained to the Commissioner on 3 June 2010 challenging the
decision to withhold the information requested.
20. The chronology of the Commissioner’s investigation of this case is set out at
paragraphs 20 and 21 of the Commissioner’s Decision Notice.
Scope of the case
21. The Commissioner advised the Appellant in correspondence that, unless he heard
from him to the contrary, the scope of his investigation would be to determine
whether or not the Constabulary was correct neither to confirm nor deny whether
it held the information referred to as Point 1 in its correspondence. As the
Commissioner did not hear anything back from the Appellant, the Commissioner
has undertaken his investigation on that basis.
The Commissioner’s Decision
22. The Commissioner served a Decision Notice dated 20 January 2011 in relation to
this matter in accordance with s. 50 of the Act. The Decision Notice stated that the
1
Referred to in paragraph 13 of the Decision Notice.
- 14 -
Appeal No.: EA/2010/0151
Constabulary had correctly relied on section 40(5) of the Act and as such, required
no steps to be taken.
The Notice of Appeal
23. The Commissioner believes that the Appellant’s grounds of appeal (‘GOA’) are as
follows:-
i) The Commissioner erred when considering the scope of the Appellant’s
request.
ii) The Commissioner erred in concluding that the information requested would
constitute personal data.
iii) The Commissioner erred in concluding that the Constabulary were correct to
rely upon section 40(5) of the Act.
The Commissioner’s response to the Grounds of Appeal
24. Generally, the Commissioner relies on the Decision Notice as setting out his
findings and the reasons for those findings. The Commissioner nevertheless
makes the following observations in respect of the Appellant’s grounds of appeal:-
The Commissioner erred when considering the scope of the Appellant’s request.
25. The Appellant argues that the Commissioner failed to properly investigate
whether the Constabulary correctly responded to the request as the Commissioner
had erroneously treated the Constabulary’s summary of the Appellant’s email of
24 November 2009 as though it was the request.
- 15 -
Appeal No.: EA/2010/0151
26. The Commissioner accepts that the wording of the original request dated 24
November 2009 (email sent at 12.45) appeared to relate to all information relating
to anyone convicted under the refusal to decrypt legislation, providing a link to the
article in The Register merely by way of an example.
27. However, the Constabulary, having requested clarification of the broad nature of
the Appellant’s request, then received the second email from the Appellant dated
24 November 2009 (14.32). From the wording of this email, the Commissioner
would submit that it was reasonable for the Constabulary to have interpreted this
email as a clarification of the original request.
28. The Commissioner would further submit that the scope of the requested
information was correctly set out in paragraph 13 of his Decision Notice. The
Appellant argues that ‘point 1’ “was NOT my request” and that his request was
“rather broader, asking for information other than personal information.” The
Appellant further argues (at the top of the second page of his GOA) that his
request was “not just relating to the individual The Register wrote about.”
29. However, the Commissioner would submit he did not restrict his investigation
(and therefore the scope of the request) to information requested relating solely to
the individual referred to in the article in The Register. For example, point 1
relates to a broad request (not just restricted to the incident referred to in the
article), referring in paragraph 1 to “whether, for example there was any
significant risk of terrorist attack from any of the individuals convicted…”
(Emphasis added).
- 16 -
Appeal No.: EA/2010/0151
30. The Appellant also appears to be arguing that the Commissioner misinterpreted
his request as asking for personal information when in fact he was asking for
information other than personal information. The Commissioner will respond to
this assertion in connection with the second ground of appeal referred to below.
31. In summary, the Commissioner would submit that the Commissioner correctly
identified the information requested for the purposes of his investigation and that
therefore this ground of appeal does not have reasonable prospects of success.
32. The Commissioner would submit that, in any event, even if he was found to be
wrong in identifying the scope of the request, he still reached the correct decision
that the Constabulary were entitled to rely upon the exemption pursuant to section
40(5) in relation to the information requested, if held.
The Commissioner erred in concluding that the information requested would constitute
personal data
33. The Appellant disputes the Commissioner’s contention that the information
requested would constitute personal data and in some respects sensitive personal
data about a third party and, as such, the information should therefore be
disclosed. The Commissioner would submit that this ground of appeal arises out
of a fundamental misunderstanding on the part of the Appellant as to what
constitutes personal data.
Personal data definition
- 17 -
Appeal No.: EA/2010/0151
34. Section 40(7) of the Act confirms that the relevant definition is set out in section
1(1) of the Data Protection Act 1998 (“the DPA”):
“Personal data means data which relate to a living individual who can be
identified-
(a) from those data, or
(b) from those data and other information which is in the
possession of, or is likely to come into the possession of, the
data controller,
and includes any expression of opinion about the individual
and any indication of the intentions of the data controller or
any other person in respect of the individual.”
35. The two main elements of personal data are that the information must “relate to” a
living person, and that person must be identifiable. Information will “relate to” a
person if it is about them, linked to them, has some biographical significance for
them, is used to inform decisions affecting them, has them as its main focus or
impacts on them in any way. 2
36. The leading authority on what is covered by “personal data” is the Court of
Appeal’s decision in Durant v Financial Services Authority 3 . At paragraph 28 of
the judgement, Auld LJ found:-
“It follows from what I have said that not all information retrieved from a
computer search against an individual’s name or unique identifier is personal
2
Commissioner’s guidance on section 40 (11.11.08)
- 18 -
Appeal No.: EA/2010/0151
data within the Act. Mere mention of the data subject in a document held by a
data controller does not necessarily amount to his personal data. Whether it does
so in a particular instance, depends on where it falls in a continuum of relevance
or proximity to the data subject as distinct, say, from transactions or matters in
which he may have been involved to a greater or lesser degree.”
37. Auld LJ then goes on to provide “two notions that may be of assistance” to help
decide whether or not information is personal data, namely biographical
significance and focus. He continues, “In short, it is information that affects his
privacy, whether in his personal or family life, business or professional capacity.”
38. The Commissioner’s guidance on determining what personal data is includes these
two notions in a step by step approach to determine whether data is personal data
under the DPA.
39. In the Tribunal’s decision in Kelway v IC & Chief Constable of Northumbria
Police 4 , the Tribunal held that (at paragraph 60) “in order to assist in making our
decision, we consider we can take into account the notions provided in the
guidance which include those provided by Auld LJ and the [working party]
Opinion 5 , but we are not bound to do so if they are not of assistance.” In that case
the Tribunal decided (at paragraph 61) that “3 witness statements that formed part
of the requested information fell at a point in the continuum that made them Dr
Kelway’s personal data but that the other two [witness statements] are not
sufficiently proximate to Dr Kelway for them to constitute his personal data.”
3
[2003] EWCA Civ 1746
4
EA/2008/0037
- 19 -
Appeal No.: EA/2010/0151
The Appellant’s requests
40. The Commissioner submits that the Appellant’s requests relate to information
relating to individuals, whether this relates to the individual that is the subject of
the article in The Register or other individuals convicted of the offence. In the
case of the individual who was the subject of the article, just because the name of
an individual is not known does not mean that the individual cannot be identified.
41. The Commissioner therefore remains satisfied that the information requested
would, if it existed, relate to living individuals and that therefore the information
is personal data as defined by the DPA.
42. The Commissioner also maintains that the information requested would also
constitute sensitive personal data.
43. “Sensitive personal data” is defined at s. 2 DPA, which provides insofar as is
relevant:
In this Act “sensitive personal data” means personal data consisting of information as
to— …
(e) his physical or mental health or condition,
(g) the commission or alleged commission by him of any offence.
44. The Commissioner submits that the request for information (as clarified in the
second email of 24 November 2009) asks about convicted individual(s), the
location of interviews and what consideration was given to the mental health of an
5
The Tribunal was referring to the opinion of the “working party on the protection of individuals with
- 20 -
Appeal No.: EA/2010/0151
individual. As such, the Commissioner would submit that such information,
would, if held, reveal information about the commission or alleged commission by
an individual of an offence as well as about their mental health.
45. The Commissioner therefore submits that he was correct to conclude that
subsections (e) and (g) of section 2 DPA are applicable and that therefore all of
the information falling within the scope of the request would, if held, fall within
the definition of sensitive personal data.
46. The Appellant argues that he wanted “information that is not about anyone, but is
merely related”. He then gave examples of the information he was requesting that
related to the topic he was interested in, namely, “copies of legislation, guidance
for/by the police on using the Regulation of Investigatory Powers Act, guidance
on dealing with vulnerable people.” However, it is submitted that such
information did not fall within the scope of the Appellant’s request as clarified
and, as such, the Commissioner was not obliged to consider whether the
Constabulary held the same.
47. The Appellant further argues that he thought that some of the confusion was that
some legislation uses ‘related’ with a specific legal meaning but that he was using
it in ordinary prose (i.e. rather than in the context of the DPA). However, the
Commissioner would submit that the Constabulary are obliged to comply with the
provisions of the DPA and is therefore obliged to consider whether the
information requested amounts to personal data as defined in the DPA.
regard to the processing of personal data” established under Art 29(1) of Directive 95/46/EC
- 21 -
Appeal No.: EA/2010/0151
The Commissioner erred in concluding that the Constabulary were correct to rely upon
section 40(5) of the Act.
48. Section 40 (1) to (4) exempt personal data from disclosure under the Act if to do
so would breach the data protection principles. In relation to a request for
information which constitutes the personal data of individual(s) other than the
applicant(s), as in this case, section 40(5)(b)(i) further excludes a public authority
from complying with the duty imposed by section 1(1)(a) of the Act if complying
with that duty would contravene any of the data protection principles.
49. Having established above that the information requested would constitute personal
data and indeed sensitive personal data, it is then necessary to consider whether or
not confirming or denying that the information is held would contravene any of
the data protection principles. By s. 40(7), the “data protection principles” are
those set out in Part I of Schedule I to the Data Protection Act 1998 (“DPA”).
50. The Commissioner considered that the first data protection principle to be the
relevant one in this case which sates that:-
(1) Personal data shall be processed fairly and lawfully, and in particular, shall not be
processed unless –
a) at least one of the conditions in Schedule 2 is met, and
b) in the case of sensitive personal data, at least one of the conditions in
Schedule 3 is also met...
51. By s. 1(1) DPA, “processing” of data includes disclosing that data.
52. As the Commissioner is satisfied that all of the information requested would
constitute sensitive personal data, the Commissioner must consider whether any of
the conditions in Schedule 3 can be met. The Commissioner would submit that he
was correct to conclude that none of the conditions can be met.
53. The Appellant argues that “it would not reveal sensitive personal information to
say whether the police hold non-personal information.” However, the
- 22 -
Appeal No.: EA/2010/0151
Commissioner would submit that, because of the way in which the request is
worded, it would not be possible for the Constabulary to confirm or deny whether
it held information that did not constitute personal data.
54. For example, if the Constabulary were to confirm of deny that it held any
information relating to convictions for the offence in question and evidence of a
risk of terrorist attack from any individual convicted, this would still inevitably
reveal information relating to the commission or alleged commission of an
offence, constituting sensitive personal data. Similarly, if the Constabulary were
to confirm or deny that it held any information relating to the regard taken of the
mental health of JFL, this would inevitably reveal information relating to both the
commission or alleged commission of an offence and the individual’s mental
health or condition, also constituting sensitive personal data.
55. Although the Appellant accepts in his GOA that some of the information he asked
for was personal information and that those parts should be excluded from his
request, the Appellant argues that he should have been provided with the
remainder of the information falling within the scope of his request that did not
contain personal information. However, the Commissioner would submit that, on
the particular facts of this case, confirming or denying that the requested
information is held could itself reveal exempt information.
56. In light of the above, the Commissioner would submit that he was correct to
conclude that the exemption in section 40(50(b)(i) of the Act is engaged with
respect to all of the information falling within the scope of the request. The
Commissioner would submit that the effect of complying with section 1(1)(a), by
- 23 -
Appeal No.: EA/2010/0151
either confirming or denying that the information was held, would constitute the
disclosure of an identifiable individual’s sensitive personal data. This would, it is
submitted, therefore breach the first data protection principle because none of the
conditions in Schedule 3 can be met.
Public Domain Issue
57. The Appellant also argues that several other public authorities to whom the
Appellant addressed the same request, including the Metropolitan Police Service
and the HMCS were willing to confirm or deny whether they held the information
requested and, have even provided some of the information requested.
58. The Commissioner understands that, in response to the same request from the
Appellant to the Metropolitan Police, the Metropolitan police have disclosed to
the Appellant the content of a press release( prepared by the Metropolitan Police
for circulation to the media on an ‘if asked’ basis) with personal details having
been redacted. The Commissioner understands from the Constabulary that the
Metropolitan Police holds no record of this release being provided to any member
of the press.
59. However, the Commissioner is not aware of any information falling within the
scope of the Appellant’s request, if held, being attributed to the Constabulary or
the Constabulary having issued a press statement or public briefing in relation to
the subject of the request.
- 24 -
Appeal No.: EA/2010/0151
60. In light of the above, the Commissioner would submit that, on the particular facts
of this case, even if the Metropolitan Police had disclosed some of the information
the Appellant had requested, as the Commissioner has determined that a Schedule
3 condition cannot be satisfied, confirming or denying that the information
requested exists would still result in the Constabulary being in breach of the DPA
because it would reveal sensitive personal data.
Conclusion
61. In light of the above, the Commissioner invites the Tribunal to dismiss the Appeal.
Oral / Written hearing
62. The Appellant has requested a paper hearing of the appeal. The Commissioner has
no objection to a paper hearing in this case.
Richard Bailey
DATED this 17 day of March 2011
Name and address of Respondent / Address for service:-
Richard Bailey
Information Commissioner’s Office
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF
Email: [email protected]
- 25 -