Don’t Expect ICO to argue your case

When applying to the Information Commissioner under s50 FOIA to overturn a refusal by a public authority it is important to marshal all your arguments and understand what is available to you.

This was illustrated in a decision in September , case number FS50546586 where the requester sought information from the Ministry of Justice relating to the Court Proceedings Database including the names of offenders found guilty of offences under the Housing Act 2004 held on that database. Disclosure was refused by the MoJ on the basis of the personal data exemption.

Not surprisingly ICO overturned this in relation to those convicted who were companies, as it was not personal data, and the applicant was quite pleased with his partial victory. See http://bit.ly/1wsiE0c

But what of the guilty who were private individuals. ICO correctly found that in their case the information requested was sensitive personal data. Such data cannot be released if to do so would breach the data protection principles and here we are concerned with Principle 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.

The ICO carefully considered fairness in relation to the individuals and concluded that disclosure would indeed be fair. He then looked for a Schedule 3 condition and considered the only possible candidates : 1. explicit consent and 5. information  made public as a result of steps deliberately taken by the data subject. He was satisfied that neither of these applied and that was the end of the matter.

The Commissioner must uphold the MoJ’s application of the exemption at section 40(2) in respect of the sensitive personal data in this case. He does so not on the basis that disclosure would be unfair but on the basis that there is no applicable Schedule 3 condition. The personal data is therefore exempt from disclosure.

But surely he should have considered Para 3 of the Schedule to The Data Protection (Processing of Sensitive Personal data) Order 2000, of which I suspect the applicant was blissfully unaware.

The disclosure of personal data— (a)is in the substantial public interest; (b)is in connection with— (i)the commission by any person of any unlawful act … (c)is for the special purposes as defined in section 3 of the Act (i.e. journalism) ; and (d)is made with a view to the publication of those data by any person and the data controller reasonably believes that such publication would be in the public interest.

Given the basis of ICO’s decision on fairness it must have been very strongly arguable that this could properly be applied – applicant was a journalist after all. This has been used successfully in the past see e.g. discussion of the Nick Griffin case on the excellent Panopticon blog http://bit.ly/1wsgayP

And if a Schedule 3 condition ( in the extended sense) could be found it is not hard to find a suitable condition in Schedule 2

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