Line to take - LTT57 - Schedule 2 Condition 6 of the DPA

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  • FOI/EIR: FOI, EIR
  • Section/Regulation: s40, reg 13
  • Issue: Schedule 2 Condition 6 of the DPA
  • Source: Information Tribunal, High Court
  • Details: Leapman, Brooke, Thomas v ICO (16.05.08, 26.02.08)
  • Related Lines to Take: LTT59, LTT163, LTT164, LTT165
  • Related Documents: [2008] EWHC 1084 (Admin) (Leapman at High Court) , EA/2007/0060 etc (Leapman at IT)
  • Contact: RM / HD
  • Date: 19/01/2010
  • Policy Reference: LTT57
  • © Copyright Information Commissioner's Office, re-used with permission
  • Original source linked from here: LTT


Line to take

The sixth condition establishes a three part test which must be satisfied;

  • there must be legitimate interests in disclosing the information,
  • the disclosure must be necessary for a legitimate interest of the public and,
  • even where the disclosure is necessary it nevertheless must not cause unwarranted interference (or prejudice) to the rights, freedoms & legitimate interests of the data subject.

Further Information

Introduction

Case-officers are referred to the process chart for section 40 cases from which it will be noted that where it is decided that the information should not be disclosed, then the decision notice will only need to refer to fairness (although where the information is to be disclosed, then fairness, the Schedules and lawfulness will all need to be considered). This decision to focus on fairness (rather than the Schedules) has been made as a result of joinedup DP and FOI policy thinking albeit that it is accepted that there is a significant overlap between the balancing approach required under fairness and the three stage test as set out in Schedule 2, condition 6.

However, Schedule 2, condition 6 will still need to be considered where the information is to be disclosed. In such cases the analysis of fairness should still be done first and so can be referenced when looking at the sixth condition. For example, ‘legitimate interests’ will have already been considered as part of the balancing exercise and the ‘unwarranted intrusion’ test will have been dealt with under the consideration of the consequences of disclosure on the data subject from the fairness line (see LTT163). This therefore means that the analysis under Schedule 2, condition 6 only needs to focus on the second limb of the test i.e. whether it is ‘necessary’ to disclose the requested information to meet the identified legitimate interests.

Background

Schedule 2, paragraph 6(1) of the Data Protection Act provides a condition for processing personal data where;

The processing is necessary for the purposes of the legitimate interests pursued by the data controller or by a 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 data subject.

In previous cases, the Tribunal treated the sixth condition as a balancing test similar to that in the public interest test, balancing the legitimate interests of the public against the prejudice to the rights, freedoms and legitimate interests of the data subject. It only differed from the public interest test in that the arguments in favour of disclosure had to outweigh those in favour of preserving the privacy or interests of the data subject, i.e. the default position was in favour of protecting the privacy of the individual i.e. withholding the information.

However in the House of Commons v ICO & Leapman, Brooke, Thomas (EA/2007/0060 etc) the Tribunal took a different approach. In this case the Tribunal said that the first thing to do when applying the sixth condition was to establish whether the disclosure was necessary for the legitimate purposes of the recipient (the public) and then to go on to consider whether, even if the disclosure was necessary, it would nevertheless cause unwarranted prejudice to the rights & freedoms of the data subject. (paras 59 onwards).

Leapman, Brooke, Thomas involved requests to the House of Commons for details of the expenses that 14 named MPs had claimed for their second homes. In considering whether the sixth condition was satisfied the Tribunal asked itself two questions;

(A) whether the legitimate aims pursued by the applicants can be achieved by means that interfere less with the privacy of the MPs (and, so far as affected, their families or other individuals),
(B) if we are satisfied that the aims cannot be achieved by means that involve less interference, whether the disclosure would have an excessive or disproportionate adverse effect on the legitimate interests of the MPs (or anyone else).
  • In the Commissioner’s view it is really question (A), which deals with the issue of necessity that introduces the change in the way the sixth condition is addressed.
  • When taken with question (B) the resulting test is consistent with the approach to Article 8 in the Human Rights Act (the right to privacy and family life), i.e. that interference with private life can only be justified where it is in accordance with the law, is necessary in a democratic society for the pursuit of legitimate aims, and is not disproportionate to the objective pursued: i.e. whether a pressing public interest was

involved and the measure employed was proportionate to the aim. This HRA approach makes sense when it is remembered that the DPA comes from a European Directive inspired by the European Convention on Human Rights.

Although the House of Commons appealed the Tribunal’s decision to the High Court [2008] EWHC 1084 (Admin) the basis of the appeal had nothing to do with the Tribunal’s approach to the sixth condition which was accepted by all parties and support for the Tribunal’s position can be found at para 43 of the High Court’s judgement. In any event the appeal was dismissed.

Necessity

In considering the issue of necessity, it is useful to consider whether there are any alternative means of meeting the identified legitimate interests and the extent to which those alternative regimes meet those legitimate interests. It may also be useful to consider whether the disclosure of the personal data would satisfy the legitimate interest in any event.

In considering these points, it is useful to look again at the Leapman, Brooke, Thomas case. The Tribunal found that the system in place at that time for regulating MPs’ expense claims was so seriously flawed that there was no public confidence in it. This was the main reason why the Tribunal found that the disclosure was necessary in order to achieve the objectives which it characterised as being transparency, accountability, value for money and the health of democracy. The Tribunal chose not to take account of the public authority’s stated intention to reform the allowance system because its focus, quite rightly, was on the circumstances that existed at the time of the request. The Tribunal refused to be drawn on whether it may have reached a different conclusion had the reforms been in operation at the time of the request (para 76). However it can be seen that if the means of overseeing the expense claims had been more rigorous at the time of the request then arguments that the disclosure was necessary for reasons of accountability and value for money would have been harder to sustain, i.e. it may have been possible to demonstrate that there was an alternative mechanism to satisfying the legitimate interests.

  • On appeal the High Court also recognised “… that if the arrangements for oversight and control of the ACA system were to change, then the issues of the privacy and security of MPs and their families might lead to a different conclusion to the one reached by the Tribunal. The Tribunal was required to act on the evidence available to it, and make its judgment accordingly. If the question were to arise again, the Commissioner, and if necessary the Tribunal, again, would have to make whatever decision was appropriate in the light of changed circumstances.

The fact that the data subjects were elected representatives was also raised in this case. We would all recognise that there is a legitimate public interest in MPs being accountable for the amount of public money they spend and also to test the integrity of their decision-making in relation to the spending of public money. The House of Commons argued that MPs were ultimately accountable at the ballot box and that sufficient details were available in the Common’s publication scheme to meet this purpose (para 25). However the Tribunal responded that in order for the accountability to be meaningful it was necessary for the details, rather than just headline figures, to be made available to the electorate so that they could make a more informed decision (para 76).

The Tribunal also took account of the scale of the amounts of money involved which was not large compared to other areas of public spending when considering necessity. However it’s not clear how the amount of money involved would affect, for example, the principle that MPs should be accountable for the public money they spend or alter the fact that, because of the absence of other effective controls, this accountability can only be achieved through full disclosure.

Casework example – FS50090869

The complainant asked for the names of the Persons in Charge for each child day care setting in England. In considering Schedule 2, condition 6, the Commissioner found that there was a legitimate interest in the public, including parents, prospective parents and carers, in accessing details of the Persons in Charge when researching and deciding about potential child care places for their children as it is a legitimate interest to know and be able to verify that someone purporting to be registered with Ofsted is indeed registered. The Commissioner went onto consider the necessity test and did not accept that the information Ofsted provided to a number of government departments, as well as the police and child protection services, was available to the parents and carers and thus that this did not satisfy the legitimate interest. Therefore there was no alternative means of satisfying the legitimate interests and so the first and second limbs of the three part test were satisfied.

Casework example – FS50169734

The complainant requested statements, if held, which had been provided by named nurses during the Nursing and Midwifery Council’s investigation of fitness to practice complaints. The Commissioner found that there was a legitimate interest in knowing whether individuals providing healthcare services were fit and proper to do so. However the Commissioner found that it is the NMC’s role, as well as that of NHS Trusts and other establishments, to ensure that nurses and midwives maintain the required fitness to practice standards and that the legitimate interest is met by these bodies rather than disclosing individual complaint histories and thus found that it was not necessary to disclose the requested information as the legitimate interest could be satisfied by an alternative mechanism.