Line to take - LTT168 - DPA "special purposes" & disclosures under FOI / EIR
- FOI/EIR: FOI, EIR
- Section/Regulation: s40, reg 13
- Issue: DPA "special purposes" & disclosures under FOI / EIR
- Source: Policy team
- Details: Content
- Related Lines to Take: N/A
- Related Documents: SI 2000 no 417
- Contact: LA
- Date: 17/02/2010
- Policy Reference: LTT168
- © Copyright Information Commissioner's Office, re-used with permission
- Original source linked from here: LTT
Line to take
Where disclosures of personal data are made under FOIA or EIR, because they are disclosures to the public rather than disclosures made solely to individual applicants, they will not qualify as disclosures for the “special purposes” of journalism, art or literature as defined by section 3 of the DPA.
The relevant statutory provisions
The first principle of the Data Protection Act provides that
- “1. Personal data shall be processed fairly and lawfully and, in particular shall not be processed unless —
- at least one of the conditions in schedule 2 is met, and
- in the case of sensitive personal data, at least one of the conditions in Schedule 3 is also met.”
Schedule 3 of the DPA sets out the conditions under which sensitive personal data may be processed in accordance with the first DP principle.
Condition 10 of Schedule 3 provides a condition where
- “The personal data are processed in circumstances specified in an order made by the Secretary of State for the purposes of this paragraph.”
Statutory Instrument 2000 no 417 “The Data Protection (Processing of Sensitive Personal Data) Order 2000 “ is an order made by the Secretary of State for the purposes of DPA Schedule 3, condition 10.
This statutory instrument sets outs a number of additional circumstances in which sensitive personal data may be processed.
Paragraph 3 of this statutory instrument provides for disclosure of sensitive personal data in the following circumstance
- “3. —(1) The disclosure of personal data —
- is in the substantial public interest
- is in connection with —
- the commission by any person of any unlawful act (whether alleged or established)
- dishonesty, malpractice , or other seriously improper conduct by, of the unfitness or incompetence of, any person (whether alleged or established)
- mismanagement in the administration or, or failure in services provided by, any body or association (whether alleged or established)
- is for the special purposes as defined in section 3 of the Act; and
- 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.
- (2) In this paragraph ,“act” includes a failure to act.”
Section 3 of the DPA states that
- “3. In this Act “the special purposes means any one or more of the following —
- the purposes of journalism,
- artistic purposes, and
- literary purposes
The Commissioners position
In the Commissioner’s view, because disclosure under FOIA or EIR is disclosure to the public rather than just to an individual applicant, the purpose that lie behind requests should not be taken into account when considering disclosure under the Act or the Regulations.
Therefore, where a disclosure of personal data is made under FOIA or EIR the Commissioner will reject arguments that the disclosure would be permitted because it would be made for a “special purpose” of journalism, art or literature, as defined by section 3 of the DPA.
The Commissioner draws support for his approach from the Tribunals’ dismissal of the appeal in the case of The Rt Hon Frank Field MP v the Information Commissioner (EA/2009/0055). Although this case didn’t specifically relate to the “special purposes” provision of the statutory instrument it did confirm that the purpose behind requests should not be taken into account.
The Tribunal considered paragraph (1) of Statutory Instrument 2000/471 which provides for the processing of sensitive personal data in certain circumstances. It commented that “That fact [the confirmation or denial] and the attendant disclosure cannot be said to be “for the purposes of prevention or detection of any unlawful act”, quite the contrary; any such confirmation or denial would be for the purpose of disclosure under FOIA and for no other purpose. (paragraph 34)
The Tribunal’s position
In Alistair Brett v the ICO and the Foreign and Commonwealth Office the Tribunal took into account the intentions of the applicant (he intended to write a book about the shooting of 3 IRA members by the SAS in Gibraltar in 1988) in making his FOI request, and found that the disclosure would be for a “special purpose” as defined by section 3 DPA.
The Commissioner does not agree with the Tribunal’s approach in this case, for the reasons detailed above, and case officers should not accept arguments of this nature.