Jersey Unreported Judgments

Employment - application by the representor for disclosure of documents from the respondents.

[2015]JRC131

Royal Court

(Samedi)

17 June 2015

Before     :		W. J. Bailhache, Esq., Bailiff, sitting alone.
Between	Dr Amar Alwitry		Representor
And	States Employment Board		First Respondent
And	The Minister for Health and Social Services		Second Respondent

Advocate S. M. J. Chiddicks for the Representor.

Advocate L. A. Ingram for the Respondents.

judgment

the bailiff:

1.        By his representation the representor asserts that he is a consultant ophthalmologist who entered into a consultant contract of employment with the first respondent in August 2012.  He was due to commence work at the General Hospital on 3^rd December, 2012, but approximately two weeks before that, the first respondent purportedly revoked or terminated the contract of employment.  There are various disputes between the representor and the first respondent in connection with that termination of contract.  One of the issues which arose out of those disputes is the effective date of termination of the contract. 

2.        The representor has made a number of subject access requests pursuant to Article 7 of the Data Protection (Jersey) Law 2005 ("the Data Protection Law"), the first of which was made on 1^st August, 2013.  Although the Law Officers' Department, on behalf of the first respondent, responded to those requests on 3^rd September, 2013, to indicate that the requests were being given priority and that a comprehensive response should be available in the course of that month, in fact the Solicitor-General subsequently wrote on 4^th October that year to Messrs Sinel's, on behalf of the representor, asking that the subject access requests be put on hold until the Solicitor-General had concluded the interviews which he intended to carry out pursuant to a request made to him by the first respondent to conduct an investigation into the circumstances surrounding the purported revocation or termination of the representor's contract of employment.  The representor agreed that the subject access requests be put on hold. 

3.        A bundle of material was supplied by the Solicitor-General to Messrs Sinel's on 14^th January, 2014.  A final copy of the Solicitor-General's report was provided on 21^st February, 2014.  Subsequent requests from Messrs Sinel's for the subject access material were met with the response that the representor had been provided with all the disclosure that was appropriate, but that the subject access request would be reconsidered.  On 26^th March, 2014, the Solicitor-General wrote to Messrs Sinel's to indicate that the respondents were not going to comply with the subject access request because they believed that the disclosure would be used as a proxy for third party discovery with a view to litigation or investigation. 

4.        On 25^th July, 2014, the Law Officers' Department advised the representor inter alia that Messrs Sinel's had been supplied with extensive data and that any personal data falling outside of that already supplied was not required to be disclosed because:-

(i)        It would involve a disproportionate amount of effort and

(ii)       It might be used as a proxy for third party discovery with a view to litigation or further investigation. 

5.        In the meantime, the proceedings before the Jersey Employment Tribunal had continued.  Bundles were exchanged on 1^st August, 2014, a week before a hearing was due to take place.  This bundle included the copy letter from Mr Andrew McLaughlin, the managing director of the hospital to Barclay Macneelar the consultant ophthalmologist at the hospital, dated 3^rd January, 2013, and Mr McLaughlin's letter identified the representor.  It had not previously been disclosed. 

6.        The forgoing represents a summary of the representor's claims in his representation.  For the purposes of this judgment, I have assumed, without deciding it, that this summary is accurate. 

7.        The representation concludes with the prayer that the respondents should comply with the subject access requests and/or that all personal data relating to the representor which has been processed by the respondents should be made available to the Court for examination and determination regarding onward provision to the representor. 

8.        Pursuant to various directions, an answer was filed to the representation.  Two affidavits have been filed by the representor and one by the Solicitor-General.  Both the representor and the respondents have filed skeleton arguments and the representation was due for hearing on 27^th May.  It was anticipated that the representor and the Solicitor-General would be cross-examined on their affidavits, but unfortunately it turned out that the hearing could not take place as intended because the Solicitor-General was away from the Island.  That might yet give rise to costs considerations, but, by agreement, the parties requested me to sit on the date fixed for final hearing for the purposes of determining an application by the representor that personal data relating to the representor which has been processed by the respondents should be made available to the Court for examination at this stage, prior to the final hearing, pursuant to Article 15 of the Data Protection Law. 

9.        A similar application had been made to Commissioner Clyde-Smith on 9^th March, 2015, (unpublished judgment) when the Commissioner gave his decision in these terms:-

"Finally I do not agree that the Court should at this stage contemplate an order under Article 15 of the Data Protection (Jersey) Law 2005.  Such an order would be premature.  The possibility of such an order may arise at the hearing.  Advocate Chiddicks referred to the case of Johnson v Medical Defence Union [2004] EWHC 347 (Ch) but the reference to the equivalent of Article 15 arose in that case when the English Court was concerning the preliminary issue of whether the defendant had complied with its data protection obligations.  That is what this Court will be considering at the hearing of the substantive matter on 27^th May, 2015."

10.      The first issue for consideration therefore is whether this is the type of interlocutory decision that can be properly revisited at this stage.  Advocate Ingram on behalf of the respondents submits that Commissioner Clyde-Smith's determination should survive until the main hearing.  Advocate Chiddicks contends that in fact it would be more useful for the matter to be revisited at this stage.  

11.      There is no doubt that I have heard more detailed argument than was put to Commissioner Clyde-Smith on 9^th March.  Furthermore I have been provided with a number of cases which were not supplied to him.  It seems to me that this is a case management issue, and that it is open to the Court, if it thinks fit, to revisit an interim order of the kind made by Commissioner Clyde-Smith and I propose to do so.  There is nothing particularly unusual in this course of action.  I note that in Ezsias v Welsh Ministers [2007] All ER (D) 65, Judge Hickinbottom, sitting as a judge of the High Court, refers at paragraph 33 of his judgment to orders he had made varying the earlier orders of Judge Wyn Williams in the same case as to the disclosure of documents.  The principle that interim orders of this kind can be revisited was clearly accepted in that case and indeed it is implicit in the Commissioner's judgment as well. 

12.      I turn now to the merits of the application, and first list the documents which were the subject of Advocate Chiddicks' submissions.  These are:-

(i)        Transcripts of interviews of witnesses taken during the course of the Solicitor General's investigation;

(ii)       Mr Beal's un-redacted report and summaries of his interviews with witnesses;

(iii)      Records of conversations between the mediator and witnesses; and

(iv)      Correspondence between the Solicitor-General and the first respondent. 

13.      The request was also made that there should be full disclosure of Mr McLaughlin's letter of 3^rd January, 2013, but it appears that that has been disclosed in the course of the Employment Tribunal proceedings, and disclosure via the data subject access request is no longer relevant. 

14.      Although Advocate Chiddicks did not address us on the matter it appears from the representor's skeleton argument, and this was not withdrawn in the course of the oral submissions, that the representor considers there are other areas of documentation where it is likely that further personal data remains outstanding.  These would be statements from hospital staff given to the first respondent about the representor, communications from hospital staff to the first respondent about the representor, minutes of a meeting in December 2012 during which a Mr Martyn Siodlak attended to defend the actions taken by the hospital, together with minutes of any internal meetings held by the first or second respondent during which the representor's case was discussed. 

15.      It does not appear that the Solicitor-General comments on the additional classes of potential documents in his affidavit, although he does indicate that he has already disclosed all the hospital and State's Employment Board records that featured in this interview bundle used during the investigation.  It is said that these are the relevant Hospital and SEB records.  There is no evidence of any other records relevant to the data subject access request and in those circumstances I regard it as disproportionate to require the respondents to carry out any further searches in that respect.  If other evidence should surface which suggests that there are documents within these classes which would be relevant to the data subject access request, the representor can re-apply. 

16.      As to the other classes of documents sought by the representor, a summary of the Solicitor-General's affidavit is as follows. 

Interview Transcripts

17.      The Solicitor-General interviewed ten witnesses who worked at the hospital during 2012 and also interviewed the representor on two separate occasions.  The interviews were electronically recorded, and transcripts were made.  The representor has received transcripts of the interviews conducted with him but has not received transcripts of the interviews carried out with others.  The Solicitor-General's evidence, on which no doubt he will be examined later, is that the latter transcripts contain a mixture of personal data of the representor, personal data of the interviewee, personal data of third parties and data that is not personal to anyone.  

18.      In his affidavit, the Solicitor-General gives reasons why the transcripts ought not to be provided, but an assessment of these reasons would only take place at the hearing of the substantive application.  It is enough for the time being to note that there is no dispute that there is some personal data of the representor which has not been disclosed. 

Mr Beal's report and statement

19.      The evidence before me is that the representor has received a copy of Mr Beal's report which has been redacted so as not to disclose the names of the various individuals involved.  Mr Beal did not tape record his meetings but he produced summaries from handwritten notes which he then sent to the witness for agreement or amendment.  Mr Beal interviewed fourteen witnesses from the hospital, twelve of whom have declined to consent to the production of the interview notes.  One has not responded and as to the only interviewee who has consented to disclosure, the summary of interview with him apparently is only four pages long and contains no information of any kind which has not been disclosed elsewhere.  Mr Beal also interviewed four politicians who have no personal knowledge of the relevant facts.  Two of the interview summaries apparently contained no personal data of the representor and the other two politicians have not consented to disclosure of the records of their interviews. 

20.      It appears to me from this summary of information that it is likely that the case summaries of interviews do contain personal data relating to the representor, the details of which have not been disclosed. 

The mediation report

21.      The representor has apparently received a copy of the mediation report.  The Solicitor-General confirms in his evidence that he understands the mediator spoke to several witnesses during the process of the mediation, but he, the Solicitor-General, does not have copies of any records of those conversations.  The records are retained by the mediator who is not a defendant to these proceedings.  In those circumstances there seems no evidence to suggest that the respondents or the Solicitor-General have copies of these records and accordingly I do not consider that any order against the respondents in relation to these records ought to be made pursuant to Article 15 of the Data Protection Law on the evidence now available to me. 

Correspondence with the State's Employment Board

22.      The final category of information relates to correspondence between the Solicitor General and the State's Employment Board.  The Solicitor General denies that this correspondence contains any personal data of the representor.  The correspondence apparently relates to practical arrangements for the conduct of the investigation into the complaint as to the manner in which the representor claims he has been treated by the hospital.  There is no evidence therefore to suggest that this correspondence contains personal data which could be the subject of a data subject access request.  In the circumstances, I do not consider there is any material in this category of documents on which I should consider making an order under Article 15 at this stage.  

23.      I did note the Solicitor General's statement that he provided the first respondent with legal advice on 19^th August, 2013.  Legal professional privilege is asserted in relation to this advice, which has not been waived.  I add for additional clarity that it is the only document in respect of which legal professional privilege is asserted.  It was suggested in argument by Advocate Ingram that although the respondents had not claimed privilege over other material, the Court could nonetheless refuse the application on the grounds of privilege.  I reject that submission.  It is for the parties, not the Court, to assert a claim to privilege and, if such a claim were to be asserted and disputed, the Court will adjudicate on it.  As to the letter of 19^th August, 2013, there did not seem to be any doubt that the representor agreed that the document was legally privileged, and in those circumstances it seems to me to be unnecessary for me to review it. 

24.      Other than those classes of documents which I have expressly excluded in the summary set out above, it is clear that there are documents which contain personal data of the representor which the Solicitor General considers should not be disclosed to him for one reason or another; and those reasons will be considered at the final hearing.  The only question now is whether the Court should make an order under Article 15 of the Data Protection Law at this stage.  The purpose of doing so would not be to supply the documents to the representor because that is the question to be considered at the final hearing.  The order would merely be to supply the documents to the Court so that at the final hearing, the Court is better placed to assess whether the objections which the respondents assert are valid objections to disclosure of the information to the representor. 

25.      I did not find Advocate Ingram's objections to the making of an order under Article 15 at this stage to be persuasive.  Although he did not put it quite so firmly, the first objection seemed to be that the Solicitor-General had sworn an affidavit to the effect that the documents did not contain disclosable personal data, and the Court should simply accept that.  To the extent that this was the argument, I reject it.  It is not the case in my view that the status of the deponent of an affidavit can be determinative of whether or not the content of the affidavit should be accepted by the Court as accurate.  I add that no-one is suggesting that the Solicitor-General has in any sense been untruthful in what he says.  What the argument amounts to is that he has made a wrong judgment call in relation to the balancing of the different data subject interests of the representor and others who have given interviews.  Whether he has balanced those interests correctly or not will be for the Court at the final hearing, but in my judgment it is difficult if not impossible for the Court to reach a conclusion on whether the right balance has been struck if it does not have the documents themselves before it. 

26.      The second argument which was advanced was that the Court should only make an order under Article 15 at this stage if it were satisfied that there had been some wrongful processing of the information containing personal data of the representor.  Reliance was placed on the assertion that the Solicitor General had applied the correct legal principles in processing the data.  I reject that argument.  The nature of the subject access request is not merely that there may be an investigation of wrongful processing but includes what the information actually is.  Article 7(1) of the Data Protection Law describes the entitlement of the individual to ascertain whether his personal data is being processed and if so what it is, why it is being processed and who receives the results of that processing.  In the heading of the Article, it is described as a fundamental right.  I decline the invitation to consider today whether the principles which the Solicitor General applied were the correct principles.  Of course it is true that some personal data of an individual data subject may be properly withheld from him, but the basis for withholding it must fall within the ambit of the grounds contemplated in the legislation.  Once again, I do not myself see how the Court can really be expected, in a case such as the present one, to make such an assessment without having the documents before it. 

27.      I have been troubled by whether the reasoning which has led to this decision carries any necessary implication that documents must always be produced to the Court under Article 15 where there is dispute around a data subject access request.  I do not think that will necessarily be the position, although often it may turn out to be so.  There is however, a threshold, in my judgment, which an applicant must pass before the Court will be persuaded to make an order under Article 15.  The threshold includes these factors:-

(i)        The applicant must satisfy the Court that there is or is likely to be personal data in the hands of the respondent which has not been disclosed.  In the present case there is no dispute in relation to some categories of documents that there is. 

(ii)       The applicant must satisfy the Court that it is not disproportionate for the respondent to provide the relevant data material to the Court.  The assessment of proportionality will depend upon all the features relevant to each case. 

(iii)      In cases where there is undisputed privileged material, the Court will not make an order under Article 15 absent special reasons.  None have been advanced in this case. 

28.      I do not reject the possibility that there are other threshold factors which might be relevant.  These three appear to me to be clearly relevant, and in this case, I am satisfied that the applicant has discharged the burden laid upon him, with regard to some categories of documents. 

29.      In the circumstances, pursuant to Article 15 of the Data Protection Law, I order the respondents to file with the Judicial Greffier for use only by the Royal Court in the present case pending further order:-

(i)        The transcripts of the interviews conducted by the Solicitor-General referred to at paragraphs 37 to 40 of his affidavit sworn on 19^th February, 2015. 

(ii)       The interview summaries prepared by Mr Beal. 

Authorities

Data Protection (Jersey) Law 2005.

Ezsias v Welsh Ministers [2007] All ER (D) 65.