European Court of Human Rights

FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 39658/05
by Terence William SMITH
against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 4 January 2007 as a Chamber composed of:

Mr J. Casadevall, President,
Sir Nicolas Bratza,
Mr G. Bonello,
Mr K. Traja,
Mr S. Pavlovschi,
Mr L. Garlicki,
Mr J. Šikuta, judges,
and Mr T.L. Early, Section Registrar,

Having regard to the above application lodged on 1 November 2005,

Having deliberated, decides as follows:

THE FACTS

The applicant is a British citizen born in 1934 and resident in Uxbridge. He is represented by Mr De Cruz, a solicitor practising in London.

The facts of the case, as submitted by the applicant, may be summarised as follows.

In 1988 the applicant was the Managing Director and controlling shareholder of DEL or The Display Electronics Group. At the time DEL was involved in the development of four industrial units in Uxbridge. According to the applicant, an oral agreement was reached in a meeting on 11 January 1988 with Mr G. from Lloyds Bank to the effect that Lloyds would take over the funding of the development and that the applicant’s personal borrowings and DEL’s borrowings would be secured on the development and also by a mortgage on the applicant’s home. According to the applicant, it was also agreed that the short term bridging loan would be replaced by long term mortgage finance once two of the units had been let and two had been sold. Transfers and debits of money, flowing from the agreement, were made on DEL’s account. Lloyds Bank in later proceedings denied the existence of any such oral agreement.

Lloyds refused to provide long term financing and in 1996 gave notice that they were calling in their loans. This led to protracted litigation in which the applicant was unsuccessful in his claims against Lloyds which gained possession of his home and, in 2000, made him bankrupt.

In late 1998 the applicant traced Mr G, who allegedly disclosed the existence of contemporaneous notes of the meeting in 1988. These notes had never been disclosed in the various proceedings.

On 13 September and 29 October 2001, the applicant made application for access to the notes under the Data Protection Act 1998 (“the 1998 Act”), claiming that he was a data subject and that personal data concerning him was either processed or part of a filing system within the meaning of that Act.

On 23 February 2005, the High Court refused to order disclosure of the notes. Mr Justice Laddie noted that it was not in dispute that Lloyds held no computerised records relating to the applicant and that any such documents that might be retained were in the form of unstructured bundles kept in boxes. There were, it was accepted, some documents which at least mentioned the applicant within the bundles relating to DEL. The applicant’s counsel had conceded that such files were not sufficiently structured to fall within the scope of "relevant filing systems" and the judge rejected arguments that sought to bring the notes within the scope of the Act by reference to the fact that at one time they might have been subject to word processing or could be rendered into a structured form by means of scanning and processing, relying inter alia on indications in domestic and European materials that only filing systems, and not unstructured files, were intended to be covered by data protection The judge also considered that the notes did not concern "personal data" about the applicant. He cited case-law indicating that not all information retrieved from a search against an individual’s name was personal data; that mere mention of an individual’s name in a document held by a data controller did not mean that the document contained personal data; and that in determining whether information was capable of constituting personal data depended on its relevance or proximity to the data subject and that in answering that question it was relevant to consider whether the information was biographical in a significant sense, whether it had the putative data subject as its focus and finally whether the information affected the privacy of the putative data subject. Applying those principles, it was clear that the documents held by Lloyds and the information contained therein were not personal to the applicant in the relevant sense. The files related to the loans to DEL and the applicant was only mentioned because he acted on behalf of the company. The documents were not biographical about the applicant to a significant extent, dealing with the loan and its terms. Indeed what the applicant was trying to obtain were not documents about himself but documents dealing with the terms of an oral agreement under which Lloyds were to make GBP 500,000 available to DEL.

On 18 July 2005, the Court of Appeal rejected his application for permission to appeal. Lady Justice Arden also found that domestic and European legislation did not cover information held in unstructured files as opposed to a processing or filing system. She also rejected arguments that the data were personal to the applicant, noting that if the documents were covered it would mean that whenever an individual was involved in a transaction all the information about the transaction became his personal data. She further referred to judicially-expressed doubts that the Act was an appropriate means of seeking to compel the disclosure of documents which could not be obtained in legal proceedings for the purpose of obtaining documents to use in legal proceedings.

COMPLAINT

The applicant complained that there had been a breach of Article 8 of the Convention, in that he has been denied access to information about himself merely because it is held by reference to another person. He submitted that the 1998 Act was intended to implement European Union directives and that the domestic courts had failed to interpret these provisions to protect privacy in conformity with their purpose.

THE LAW

The applicant complained that he had been denied access to documents held by a bank in breach of Article 8 of the Convention, which provides as relevant:

“1.  Everyone has the right to respect for his private ...life...

2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The Court notes, first of all, that it is not its role to assess whether the domestic courts have correctly interpreted domestic or European legislation on data protection. Further, it is clear that no public authority has interfered with the applicant’s private life by the collection or storage of data (c.f. Amann v. Switzerland [GC], no. 27798/95, ECHR 2000 II). The question arises as to whether there has been a failure by the Contracting State to respect the applicant’s private life in not providing him with a right of access to files held by a private organisation, in this case a bank.

The documents to which the applicant claims access are, apparently, records of handwritten notes of a meeting between the applicant and a bank official in January 1988. At the meeting, an oral agreement was allegedly reached concerning terms of financing a project run by DEL. From the view point of Article 8, it is indeed not decisive, as argued by the applicant, that the bank has stored this information in the files concerning transactions with DEL rather than in a file concerning the applicant himself. The Court is prepared to accept for the purposes of the present application that there may be circumstances where information relevant to the private life of an applicant may be contained in files which are primarily concerned with another individual or entity (see mutatis mutandis, Amann, cited above, where the applicant had been affected by interception measures targeting another person), although in those circumstances countervailing issues may well arise relevant to the protection of the privacy of the third party. In the present case, it would be artificial to assert that any files on DEL did not concern the applicant, where he was the Managing Director and controlling shareholder and his financial situation was closely bound up with that of the company. That said, the information allegedly in the files concerned a business transaction, the terms of which the applicant claims to be fully aware. It was presumably his desire to obtain substantiation of these terms with a possible view to further legal proceedings that motivated his application for access to the data held by the bank, in other words, an oblique application for discovery of documentary evidence. This is therefore not a case where the applicant seeks access to files holding information about his identity or personal history, whether with a view to correcting any errors in those records or preventing misuse of personal information (e.g. Rotaru v. Romania [GC], no. 28341/95, ECHR 2000 V) or to uncovering information with formative implications for his or her personality (e.g. Gaskin v. the United Kingdom, judgment of 7 July 1989, Series A no. 160, p. 16, § 39; Mikulić v. Croatia, no. 53176/99, § 54, ECHR 2002 I). Nor was the information in the documents obtained through any measure invasive of the applicant’s privacy or held on a data base which is in current use or involves the possibility of release of personal information to others.

The Court is accordingly not persuaded that the authorities failed in any positive obligation to protect the applicant’s right to respect for his private life within the meaning of Article 8 § 1 of the Convention. It follows that the application is manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

T.L. Early Josep Casadevall
Registrar President