Appeal Number: EA/2006/0012 FS5006311
FREEDOM OF INFORMATION ACT 2000
Heard on Papers
on 22nd June 2006
Decision Promulgated 11th July 2006
CHRISTOPHER RYAN DEPUTY CHAIRMAN
DAVE SIVERS LAY MEMBER
SUZANNE COSGRAVE LAY MEMBER
|THE INFORMATION COMMISSIONER||Respondent|
We have decided to dismiss the Appeal.
Reasons for Decision
"(3) The first condition is
(a) in a case where the information falls within any of paragraphs (a) to (d) of the definition of data in section 1(1) of the Data Protection Act 1998, that the disclosure of the information to a member of the public otherwise under this Act would contravene
(i) any of the data protection principles, or
(ii) section 10 of that Act (right to prevent processing likely to cause damage or distress), and
(b) in any other case, that the disclosure of the information to a member of the public otherwise under this Act would contravene any of the data protection principles if the exemptions in section 33A(1) of the Data Protection Act 1998 (which relates to manual data held by public authorities) were disregarded.
(4) The second condition is that by virtue of any provision of Part IV of the Data Protection Act 1998 the information is exempt from section 7(1)(c) of that Act (data subject s right of access to personal data)."
"The information withheld by the Council under section 40 of the [FOIA] does, in the Commissioner s view, constitute personal data about third parties. The Commissioner considers that the release of this information to a member of the public would contravene at least one of the data protection principles set out in the Data Protection Act 1998 "
a. The first redacted passage formed part of a sentence in the head teacher s letter which dealt with the concern of two unnamed teachers at having X back in class with no support. It is clear from the unedited version that we have seen that the redacted words contained personal information about the two teachers.
b. The second redacted passage consisted of four sentences spread over two paragraphs. As we have mentioned above a summary was provided to the Appellant. The summary read:
"There is a current legal claim against the school following an injury to a teacher in 2000 caused by another child. The claim raises, in part, the issue of how the school should have dealt with that child and has wider implications for the school. "
It is evident from our reading of the unedited version of the head teacher s letter that the summary is accurate. It is complete in all respects, except that, as the Appellant was informed when the summary was sent to him, it did not include any information in respect of one sentence of the redacted passage. However, we can again state, on the basis of our having read the unedited version, that the sentence in question contained personal information about someone who was not the Appellant and was not X.
personal data about those third parties.
(a) is being processed by means of equipment operating automatically in response to instructions given for that purpose,
(b) is recorded with the intention that it should be processed by means of such equipment,
(c) is recorded as part of a relevant filing system or with the intention that it should form part of a relevant filing system,
(d) does not fall within paragraph (a), (b) or (c) but forms part of an accessible record as defined by section 68, or
(e) is recorded information held by a public authority and does not fall within any of paragraphs (a) to (d);
held by structured reference to an individual . However, it is clear that, in the case of a public authority, even unstructured data is capable of falling within the definition.
i. each of the individuals consents;
ii. the disclosure is necessary for the performance of a contract to which the individual is a party, or is a necessary pre-requisite for such a contract;
iii. the disclosure is necessary for compliance with any legal obligation to which the Council is subject;
iv. the disclosure is necessary to protect the vital interests of the individual;
v. the disclosure is necessary for the administration of justice or certain other public functions that do not apply to this case;
vi. the disclosure is necessary for the "purposes of legitimate interests pursued by [the Council] 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 [individual]."
a. The Appellant argued that any element of unfairness to a third party whose personal data were disclosed should be balanced against the unfairness that the Appellant considered that his child would suffer if the information in question was withheld from him. FOIA section 40 creates an absolute exemption and there is therefore no requirement on us, having decided that it applies to the facts of this case, to balance the public interest in disclosure against the public interest in maintaining the exemption. Section 40 requires us to apply the "fair and lawful processing" test imposed by the first data protection principle.The use of the expression "in particular" in the first principle, demonstrates that there is a general obligation to process data fairly, in addition to the requirement to comply with the detailed conditions listed in Schedule 2 to the 1998 Act. However, the Schedule 2 condition quoted in paragraph 15.vi) above, with its reference to the "legitimate interests" of both the data controller and the data subject, incorporates into those conditions a balancing exercise and we believe that we should not, in those circumstances, impose a separate or additional test by reference to the general requirement of fairness. Applying the condition in question, we conclude that any legitimate interest that the Council may have in disclosing the relevant information to the Appellant would not justify disclosure (i.e. the disclosure would be "unwarranted") in the light of the legitimate interests of the individuals whose personal data would be disclosed as a result.
Further, on our reading of the unedited version of the head teacher s letter we cannot see that any unfairness could be suffered by X as a result of the redacted information being withheld. Even if there were any degree of unfairness, we do not think that it should outweigh the interests of those whose personal data would be disclosed if the Appellant succeeded.
b. The Appellant argues that the Information Commissioner failed to apply the provisions of the Data Protection (Subject Access Modification) (Education) Order 2000. It is evident from the terms of the Order that it would only apply to a request under the 1998 Act by X, as the relevant data subject, to have his own personal data disclosed to him. The Order has no application in the present circumstances in which the Appellant is seeking the disclosure of the personal data of certain third parties under the FOIA.
c. The Appellant also argued that withholding the information operated as an unjustified interference with the Appellant s own right to check the accuracy of information held in relation to X. We consider that this is an alternative presentation of the earlier, fairness, point at (a) above. We add that the redacted information does not relate to X and that we are unable to see how it might prejudice X, even if it were inaccurate in any respect.
d. Finally, the Appellant has suggested that the grounds put forward by the Council to justify withholding the information in question have changed from time to time and has expressed the view that "this changing picture casts (sic) doubt on the solidity of the conviction in the arguments put forward...". It is our opinion that the Information Commissioner investigated the Appellant s complaint with vigour and analytical accuracy. In doing so, and from a position of greater experience of the operations of the Act than the Council can be expected to have acquired, he identified correctly the applicable exemptions under the FOIA. Further we recognise and support the Information Commissioner s attempts to operate an informal resolution process to settle the dispute between the Appellant and the Council. The result has been a narrowing of the issues and the release to the Appellant of some of the information that had originally been withheld. This demonstrates the effective operation of the complaint procedure under FOIA section 50, and we do not consider it to give rise to a legitimate ground of appeal. The Appellant s appeal must be determined solely on the basis of the arguments put before us, without regard to any others that may previously have been considered, dismissed or withdrawn.
11th July 2006