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16.       The case raised a number of issues. Auld LJ identified the only issue relevant to this case in paragraph 24:

The question is the meaning of the words ‘relate to’ in the opening words of the definition, in particular to what extent, if any, the information should have the data subject as its focus, or main focus.

Counsel for Mr Durant argued for ‘an extremely wide and inclusive definition’ that ‘covered any information retrieved as a result of a search under his name, anything on file which had his name on it or from which he could be identified or from which it was possible to discern a connection with him.’ Counsel for the FSA argued that it meant ‘have reference to, concern’ rather than ‘have some connection with, be connected to’.

17.       Auld LJ said:

26. The intention of the Directive, faithfully reproduced in the Act, is to enable an individual to obtain from a data controller's filing system, whether computerised or manual, his personal data, that is, information about himself. It is not an entitlement to be provided with original or copy documents as such, but, as section 7(1)(c)(i) and 8(2) provide, with information constituting personal data in intelligible and permanent form. This may be in documentary form prepared for the purpose and/or where it is convenient in the form of copies of original documents redacted if necessary to remove matters that do not constitute personal data (and/or to protect the interests of other individuals under section 7(4) and (5) of the Act).

27. In conformity with the 1981 Convention and the Directive, the purpose of section 7, in entitling an individual to have access to information in the form of his ‘personal data’ is to enable him to check whether the data controller's processing of it unlawfully infringes his privacy and, if so, to take such steps as the Act provides, for example in sections 10 to 14, to protect it. It is not an automatic key to any information, readily accessible or not, of matters in which he may be named or involved. Nor is to assist him, for example, to obtain discovery of documents that may assist him in litigation or complaints against third parties. As a matter of practicality and given the focus of the Act on ready accessibility of the information - whether from a computerised or comparably sophisticated non-computerised system - it is likely in most cases that only information that names or directly refers to him will qualify. In this respect, a narrow interpretation of ‘personal data’ goes hand in hand with a narrow meaning of ‘a relevant filing system’, and for the same reasons (see paragraphs 46-51 below). But ready accessibility, though important, is not the starting point.

28. 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 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 any 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. It seems to me that there are two notions that may be of assistance. The first is whether the information is biographical in a significant sense, that is, going beyond the recording of the putative data subject's involvement in a matter or an event that has no personal connotations, a life event in respect of which his privacy could not be said to be compromised. The second is one of focus. The information should have the putative data subject as its focus rather than some other person with whom he may have been involved or some transaction or event in which he may have figured or have had an interest, for example, as in this case, an investigation into some other person’s or body’s conduct that he may have instigated. In short, it is information that affects his privacy, whether in his personal or family life, business or professional capacity. A recent example is that considered by the European Court in Criminal Proceedings against Lindquist, Case C-101/01 (6^th November 2003), in which the Court held, at para. 27, that ‘personal data’ covered the name of a person or identification of him by some other means, for instance by giving his telephone number or information regarding his working conditions or hobbies.

29. This narrow meaning of personal data derives, not only from its provenance and form of reproduction in section 1(1), but also from the way in which it is applied in section 7. That section, picking up the definition of ‘data subject’ in section 1(1), sets out the basic entitlement of an individual to access to personal data ‘of which … [he] is the data subject’. I agree with Mr. Sales that the inclusion in section 1(1) of expressions of opinion and indications of intention in respect of him supports an otherwise narrow construction. If the term had the broader construction for which Miss Houghton contended, such provision would have been otiose. A similar pointer to the focus of attention being on the data subject rather than on someone else with whom for some reason he is involved or had contact is in the special provision for ‘sensitive personal data’ in section 2 of, and Schedules 1, para. 1(b) and 3 to, the 1998 Act, giving effect in large part to Articles 6 to 8 of the Directive.

18.       The judge analysed the information in dispute and summarised his conclusion:

31. In short, Mr. Durant does not get to first base in his claim against the FSA because most of the further information he sought, whether in computerised form or in manual files, is not his ‘personal data’ within the definition in section 1(1). It is information about his complaints and the objects of them, Barclays Bank and the FSA respectively. His claim is a misguided attempt to use the machinery of the Act as a proxy for third party discovery with a view to litigation or further investigation, an exercise, moreover, seemingly unrestricted by considerations of relevance. It follows that much of Mr. Durant's complaint about redaction of other individual's names and details falls away, regardless of the outcome of the correct application of the provisions of section 7(4) – (6) for protection of the confidentiality of other individuals (see paragraphs 52-68 below).

19.       Mummery LJ agreed with Auld LJ. Buxton LJ agreed with ‘everything that has fallen from my Lord’, but added some remarks on personal data:

78. By section 1 of the 1998 Act, personal data is [processed or recorded] information that (i) relates to a living individual who (ii) can be identified from those data either taken alone or in conjunction with other information. Much of the argument on behalf of Mr. Durant went straight to limb (ii), without considering the implications of limb (i). Plainly, Mr. Durant could be identified ‘from’, or perhaps more accurately in conjunction with, the information sought by him that is summarised by my Lord in his para. 24; the reason for hesitation being only that in some cases it is Mr. Durant's identity that leads to the information, rather that the information leading to Mr. Durant. Equally plainly, however, the requirement that the information should ‘relate to’ Mr. Durant imposes a limitation on that otherwise very wide claim.

79. The guiding principle is that the Act, following Directive 95/46, gives rights to data subjects in order to protect their privacy. That is made plain in recitals (2), (7) and (11) to the Directive, and in particular by recital (10), which tells us that:

‘the object of the national laws on the processing of personal data is to protect fundamental rights and freedoms, notably the right to privacy, which is recognised both in Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and in the general principle of Community law’

The notions suggested by my Lord in his para. 28 will, with respect, provide a clear guide in borderline cases. A recent example of such personal data is information about the occupation, hobbies and in one case medical condition of named, and therefore identifiable, individuals, such as the Court of Justice addressed in Case C-101/01, Lindqvist, 6 November 2003.

80. But the information sought by Mr. Durant was by no stretch of the imagination a borderline case. On the ordinary meaning of the expression, relating to him, Mr. Durant's letters of complaint to the FSA, and the FSA's investigation of that complaint, did not relate to Mr. Durant, but to his complaint. The 1998 Act would only be engaged if, in the course of investigating the complaint, the FSA expressed an opinion about Mr. Durant personally, as opposed to an opinion about his complaint; a contingency for which, nonetheless, the draftsman of the Act thought it necessary to make specific provision. And on the purposive construction of the expression, as investigated in para. 78 above, access to that material could not possibly be necessary for or even relevant to any protection by Mr. Durant of his privacy. The excessive nature of his demands is perhaps best illustrated by the claim mentioned by my Lord in his para. 62, that Mr. Durant should be told the identity of all those at the FSA who had handled his complaint. In the formal FSA complaints process in which Mr. Durant engaged before bringing the present proceedings (see para. 10 above) that information may or may not have been relevant, though there is no indication that Mr. Durant or those who may have been advising him then sought it. It has nothing whatsoever to do with Mr. Durant's privacy, and proceedings under the 1998 Act cannot be used now, or at all, to extract it.

20.       Mr Hopkins argued that Durant was concerned with the identification element. Mr Coppel argued that it was concerned with the relation element. I accept Mr Coppel’s argument. There was no identification issue in the case. Mr Durant could be identified from the information held by the FSA. Both counsel argued the case by reference to the relation element. Auld LJ accepted the narrower interpretation of ‘relate to’ at [29] and Buxton LJ analysed that element at [80].

21.       The case is an authority that the narrower interpretation of ‘relate to’ is the correct one.

22.       What of Auld LJ’s two notions? He said only that they ‘may be of some assistance.’ That indicates that they are relevant to the application of the statutory test. They were not presented as in some way defining the scope of personal data. Nor were they presented as exhaustive. They were presented as being generally helpful, but this was limited to cases where the individual’s name was the only possible personal data in the information being sought.

23.       Buxton LJ limited the notions to borderline cases, which Durant was not by any stretch of the imagination. For him, Lindqvist exemplified a borderline case.

European decisions

24.       In Durant, both Auld LJ and Buxton LJ referred to the decision of the Court of Justice of the European Union in Criminal Proceedings against Bodil Lindqvist (Case C-101/01) [2003] ECR I-6055. Mrs Lindqvist had set up an internet site for her local parish containing information about some of her colleagues in the parish. She gave names, jobs, hobbies and in one case some of the person’s employment and medical details. The Court decided that she had processed the personal data of her colleagues:

27. The answer to the first question must therefore be that the act of referring, on an internet page, to various persons and identifying them by name or by other means, for instance by giving their telephone number or information regarding their working conditions and hobbies, constitutes ‘the processing of personal data wholly or partly by automatic means’ within the meaning of Article 3(1) of Directive 95/46.

25.       In European Commission v Bavarian Lager Co Ltd (Case C-28/08 P), the Court of Justice of the European Union was concerned with the protection of personal data under Regulations (EC) 45/2001 and 1049/2001. Specifically, the issue was whether the Commission was entitled to withhold the names of persons present at a meeting. The Court decided:

68. It should be noted that … the General Court, in examining … the definition of ‘personal data’, correctly held that surnames and forenames may be regarded as personal data.

26.       I reject Mr Edem’s argument that this case is not properly before me. It is irrelevant whether or not it was considered by the First-tier Tribunal. It is irrelevant that it was only raised in skeleton argument. And it is unfortunate, but irrelevant, that the wrong Court’s judgment was included in the bundle for the hearing.

27.       These two European cases are authority that the names of the persons were personal data. The Court spoke in the context of, and by reference to, the facts of the cases. The names and other information were information about the living individuals revealed in a context that identified the persons by their location and their involvement in the parish or by their involvement in the business of the meeting.

The House of Lords

28.       The decision of the House of Lords in Common Services Agency v Scottish Information Commissioner [2008] 1 WLR 1550 concerned a request for the incidence of childhood leukaemia broken down into census wards. The data had been barnardised in an attempt to prevent individuals being identified. That issue does not arise in this case. The case is relevant for two reasons.

29.       First, Lords Hope and Rodger commented on Durant. Lord Hope said at [20] that the issue was whether barnardised data was personal data and that ‘I do not think that the observations in Durant v Financial Services Authority … have any relevance to this issue.’ And Lord Rodger said at [74] that the only issue was whether individuals could be identified from the data, ‘So there is no need in this case to consider the kinds of issue which the Court of Appeal addressed in Durant v Financial Services Authority [2004] FSR 28.’ This confirms, or is at least consistent with, my analysis that Durant was concerned with the relation element.

30.       Second, the House approved the practice of releasing data in an anonymised form. This is difficult to reconcile with the domestic legislation, but it accords with Recital 26 of Directive 95/46 (emphasis added):

(26) Whereas the principles of protection must apply to any information concerning an identified or identifiable person; whereas, to determine whether a person is identifiable, account should be taken of all the means likely reasonably to be used either by the controller or by any other person to identify the said person; whereas the principles of protection shall not apply to data rendered anonymous in such a way that the data subject is no longer identifiable; whereas codes of conduct within the meaning of Article 27 may be a useful instrument for providing guidance as to the ways in which data may be rendered anonymous and retained in a form in which identification of the data subject is no longer possible;

F.         Analysis – personal data

31.       There are living individuals involved, the FSA officials.

32.       They have names and those names are information about them. They are important information, as they are the means by which those individuals are identified to, and known by, others.

33.       Their names are held by the FSA. They are recorded in order that they can, if necessary, be retrieved. That makes the information data within head (b) of the definition in section 1(1) of DPA.

34.       In order for this data to be personal data, it must satisfy the identification and the relation elements.

35.       Both elements are matters of fact for the First-tier Tribunal. On appeal to the Upper Tribunal, the issue is whether the First-tier Tribunal directed itself correctly in law and made a decision that was within the bounds of reasonable judgment: Moyna v Secretary of State for Work and Pensions [2003] 1 WLR 1929 at [24]-[25].

36.       The officials’ names are relevant to the identification element. Occasionally, a name may be unique and allow a living individual to be identified from that information alone. An example would be someone who has been named after all the members of a football team. Usually, a person’s name is not unique, so more information is required. That information will often be available from the context in which the names are used. I have seen the names of officials and their names are not unique. But they can be identified from their names taken together with the contextual information of their grades and dates of employment. No one argued otherwise.

37.       That leaves the relation element. The panel correctly directed themselves that the issue was whether this element was satisfied. It seems that they correctly directed themselves that the narrow meaning of ‘relate to’ applied. But they misdirected themselves on the significance of Auld LJ’s two notions in Durant. Even if they did not misdirect themselves, they misapplied those notions.

Misdirection

38.       The panel reached its decision by applying Auld LJ’s two notions. That was a misdirection. This was not a case in which those notions were relevant. The officials’ names were not the only possible personal data in the information being sought. The context of the information conveyed other information about them. It concerned their role in the FSA and their possible involvement in handling Mr Edem’s complaints. That contextual information made this case very different from Durant. It certainly prevented it from being a borderline case, if that sets the proper limit to the relevance of those notions.

Misapplication

39.       If the panel did not misdirect themselves on Durant, they misapplied Auld LJ’s notions in at least two respects.

40.       First, the panel took too narrow a view of what can be biographical. They decided that the information recorded the officials’ involvement ‘in a matter that has no personal connotations.’ That approach is inconsistent with the decision of the Court of Justice of the European Union in the Bavarian Lager case. The information there related to attendance at a meeting. It could equally have been said that that information had no personal connotations.

41.       Second, the panel overlooked the fact that the holder of data has to know at the time it is recorded whether or not it is personal data. The panel gave an example of a person involved in experiments on animals, which would convey information about the person’s opinion on those experiments. That confuses the biographical nature of information and its relevance to others. Suppose, to take a topical example, that information comes to light about a public figure’s behaviour with children some years ago. The identity of the persons involved in handling his career conveys information about their attitude to child protection. That was as much information at the time as it is now. But on the panel’s test, it would not have been biographical at the time because its significance was not known.

G.        Analysis – data protection principles

42.       As I have decided that the names of the officials were personal data, the issue arises whether disclosure would contravene a data protection principle. I reject Mr Edem’s argument that I have no jurisdiction to deal with this. Having decided that the tribunal was wrong in law to decide that the names were personal data, I am entitled to re-make the decision under section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007. That allows me to deal with any other issue that arises.

43.       The issue comes to this: was condition 6 in Schedule of DPA satisfied? At the hearing, Mr Edem asked to be allowed to make a case under any of the conditions and I said that he could do so. What he has done is only to make some general observations on condition 6. He has not, despite my clear advice at the hearing, made a case that processing is necessary in pursuit of a legitimate interest under condition 6. I can see no argument that it is necessary in the circumstances of the case. I can see no legitimate interest that would be pursued in doing so. The best that Mr Edem could say at the hearing was that the name of one official had been released by mistake and no harm had come to him. I accept that, but it is not sufficient to make a positive case of necessity or identify a legitimate interest. In those circumstances, I do not need to consider the legitimate interests of the officials themselves.

H.        Mr Edem’s grounds of appeal

44.       Mr Edem has explained his grounds of appeal in detail. I have not found the nature and relevance of his argument easy to follow. I accept Mr Hopkins’ summary in his written closing submissions that Mr Edem’s complaint is about the way that the FSA handled his own personal data.

45.       As Mr Hopkins says, that was outside the scope of the appeal to the First-tier Tribunal. The appeal was against the Information Commissioner’s decision under FOIA, nothing else. If Mr Edem wishes to complain about the handling of his own personal data, he must do so under DPA, as he has already been advised.