Category Archives: judgments

May 27, 2025 · 7:42 am

Liz Truss leadership election not amenable to JR

Was the leadership election in which Liz Truss was elected as leader of the Conservative Party (and as a result of which she was recommended to the Queen by the outgoing Boris Johnson, and appointed by the Queen as her Prime Minister) a decision amenable to judicial review?

Whether a person is a public authority for the purposes of the Freedom of Information Act 2000 is, in principle, a relatively straightforward issue: is it listed in Schedule 1 to FOIA?; or has it been designated as such by order under section 5?; or is it wholly owned by the public sector?

Whether a person is a public authority under section 6 of the Human Rights Act 1998, or whether a person is a public authority amenable to judicial review, are more complex questions.

It was the last of these that the Court of Appeal had primarily to consider in Tortoise Media Ltd, R (On the Application Of) v Conservative and Unionist Party [2025] EWCA Civ 673. Tortoise Media had written to the Party seeking certain information in relation to the leadership election process, and argued that the public effects of the leadership election meant that, in those circumstances, the Party was exercising a public function for the purposes of CPR 54.1(2). The follow-on argument was that the judgment of the ECtHR in Magyar Helsinki Bizottság v Hungary meant that the domestic courts should read down Article 10 of the ECHR (as incorporated in domestic law in the HRA) as imposing, in some cases, a positive obligation on a body to provide information to the media, who act as “watchdogs” in the public interest.

Perhaps unsurprisingly, though, the Court of Appeal did not accept that the effects and circumstances of the Party leadership election made the decision of the Party amenable to JR:

the nature of the act of electing a party leader…is at all times a private act. The fact that it has important, indirect consequences for the public does not transform a private act into a public one.

For that reason, the Court did not need to consider the Article 10/Magyar arguments (but on which, one feels – having regard to the submissions on behalf of the Duchy of Lancaster, as intervener, which argued that the Supreme Court’s decisions in Sugar and in Kennedy (which did not follow the reasoning in Magyar) bound all inferior courts – the claimants would have in any case lost).

It’s an interesting read, even if it was – to put it mildly – an ambitious case to bring.

The views in this post (and indeed most posts on blog) are my personal ones, and do not represent the views of any organisation I am involved with.

Leave a comment

Filed under access to information, Article 10, Freedom of Information, human rights, judgments, judicial review

Tagged as ,

April 17, 2025 · 7:17 am

FOIA s11 – All or nothing or a sliding scale?

When a public authority receives a request for information it must, under the Freedom of Information Act 2000, determine and communicate whether the information is held (subject to any exemption which removes the obligation to confirm or deny whether it is held), and then determine whether any exemptions to disclosure apply. These latter exemptions include the procedural ones at ss12 and 14 of FOIA (costs grounds and vexatiousness or repeatedness) and the substantive ones at Part II (ss21 to 44). It is only then that, if the requester has requested the information in a specific format (such as a specific software format) the public authority must, under s11, consider whether it must “so far as reasonably practicable” give effect to that preference.

That this is the correct order of things is confirmed by an important (albeit quite niche) judgment of the Upper Tribunal, in Walawalker v The Information Commissioner & Anor [2023] UKFTT 1084 (GRC). Both the ICO, and the First Tier Tribunal, had elided/confused the staged process above, with the result that the appeal before the Upper Tribunal was on the meaning of s11, despite prior findings not having been fully made on the application of exemptions.

Nonetheless, what the Upper Tribunal had to decide was, where (for instance as was the case here) a request was for transcripts of a 50-odd audio recordings of distress calls at sea, and the act of transcribing them would be very resource-heavy, did the obligation to give effect to the preference for transcripts “so far as reasonably practicable” impose an “all or nothing” or a “sliding scale duty”? In this example, did the Maritime and Coast Agency have to transcribe as many of the calls as it could before it became no longer reasonably practicable, or did the exercise as a whole constitute something that was not reasonably practicable?

It was the latter, said the judge: s11 applies to “the information” requested (what the ICO in its submissions, described as being a “unitary concept” – and the judge said this was a “helpful perspective”) not a subset of extract of the information. What Mr Walaker had requested was “all calls”, and it was that “unitary concept” which as at issue in the s11 analysis. It was not reasonably practicable to transcribe all calls, and so the s11 duty did not apply.

The views in this post (and indeed most posts on blog) are my personal ones, and do not represent the views of any organisation I am involved with.

Leave a comment

Filed under Freedom of Information, Information Commissioner, Information Tribunal, judgments, Section 11, UK GDPR

Tagged as ,

April 14, 2025 · 8:51 am

Personal use of work devices – an Irish judgment

A frequent headache for data protection practitioners and lawyers is how to separate (conceptually and actually) professional and personal information on work devices and accounts. It is a rare employer (and an even rarer employee) who doesn’t encounter a mix of the two categories.

But, if I use, say, my work phone to send a couple of text messages (as I did on Saturday after the stupid SIM in my personal phone decided to stop working), who is the controller of the personal data involved in that activity? I’d be minded to say that I am, (and that my employer becomes, at most, a processor).

That is also the view taken by the High Court in Ireland, in an interesting recent judgment.

The applicant was an employee of the Health Service Executive (HSE), and did not, in this case, have authority or permission to use his work phone for personal use. He nonetheless did so, and then claimed that a major data breach in 2021 at the HSE led to his personal email account and a cryptocurrency account being hacked, with a resultant loss of €1400. He complained to the Irish Data Protection Commissioner, who said that as his personal use was not authorised, the HSE was not the controller in respect of the personal data at issue.

The applicant sought judicial review of the DPC decision. This of course meant the application would only succeed if it met the high bar of showing that the DPC had acted unlawfully or irrationally. That bar was not met, with the judge holding that:

The DPC did not purport to adopt an unorthodox interpretation of the definition of data controller. Instead, against the backdrop of the factual matrix before it, it found that the HSE had not “determined the purposes and means 28of the processing” of the data relating to the Gmail, Yahoo, Fitbit and Binance accounts accessed by the applicant on his work phone. That finding appears to me to be self-evident, where that use of the phone clearly was not authorised by the HSE.

I think that has to be correct. But I’m not sure I quite accept the full premise, because I think that even if the HSE had authorised personal use, the legal position would be the same (although possibly not quite as unequivocally so).

In genuinely interested in others’ thoughts though.

The views in this post (and indeed most posts on blog) are my personal ones, and do not represent the views of any organisation I am involved with.

Leave a comment

Filed under controller, Data Protection, employment, GDPR, Ireland, judgments, Uncategorized

Tagged as

April 2, 2025 · 5:02 am

The legality of data processing in the course of litigation

There is very convoluted litigation taking place which has as its focus a witness statement, prepared by a solicitor acting for a number of insurance companies who are defending personal injury claims arising from road traffic accidents (RTAs). And part of the argument (and a satellite claim) has now become about compliance with data protection law.

Five original claims were made for damages arising from RTAs. The defendant insurance companies were represented by law firm DWF, and one of DWF’s solicitors prepared a witness statement which contained an analysis of claims data collected by DWF in relation to a number of claims submitted by claimants represented by the solicitors who acted on behalf of the five claimants. The statement sought to adduce that in an unusually high number of the claims claimants had been referred for further psychological assessment, by a doctor who in 100% of those cases diagnosed a psychiatric condition and in two thirds of those cases said that the recovery period would be over two years. In short, a large number of claimants in the relevant RTAs appeared to develop long-term psychiatric conditions.

The claimant sought unsuccessfully to debar the witness statement, although the judge (on appeal) noted that it would be “for the Judge at trial to make of this evidence what they will [although] there are questions as to the extent to which this evidence assists without more in proving fundamental dishonesty”.

Notwithstanding this, an initial 317 (now reduced to three) claims were then made by people whose personal data was accepted to have been processed by DWF for the purposes of preparing the witness statement above. The claims here are for various breaches of the UK GDPR (such as excessive processing, and lack of fairness, lawful basis and transparency).

In a judgment handed down on 1 April, on an application by the claimants for specific disclosure in the UK GDPR claim (and an application by the defendant to amend its defence and strike out a witness statement of the claimants’ solicitor) Mrs Justice Eady DBE dismissed the disclosure applications (made under various headings), on the basis that much of the information would clearly be privileged material, or not relevant, or that the application was a fishing expedition.

If this gets to trial it will be interesting though. This sort of processing of personal data takes place in the course of (non-data-protection) private litigation routinely. It is generally not assumed that any issues of illegality arise. Any ultimate findings would be notable for litigators, and those who need to advise them on data protection compliance.

The views in this post (and indeed most posts on blog) are my personal ones, and do not represent the views of any organisation I am involved with.

Leave a comment

Filed under Data Protection, judgments, litigation, UK GDPR

Tagged as

March 27, 2025 · 4:53 am

A new data protection duty?

I’ve been looking in more detail at the recent subject access judgment in Ashley v HMRC. One key point of general application stands out for me, and that is that it states that in some cases (i.e. where it is necessary for intelligibility purposes) a controller has a duty to provide contextual information in addition to copies of personal data.

As the judge put it

Article 15(1) and 15(3), read with Article 12(1) and (2) of the UK GDPR, did require the Defendant to go beyond providing a copy of the Claimant’s personal data where contextual information was necessary for that personal data to be intelligible in the sense of enabling the data subject to exercise their rights conferred by the UK GDPR effectively. It follows that insofar as the Defendant did not adopt this approach, it was in breach of this duty.

And although she couched the following as “guidance” for the HMRC when reconsidering the request, I feel it has general application:

…it is unlikely that providing an extract that simply comprises the Claimant’s name or his initials or other entirely decontextualised personal data of that sort, will amount to compliance with this obligation.

In arriving at this conclusion the judge drew in part on both pre- and post-Brexit case law of the Court of Justice of the European Union. Most notably she decided to have regard to case C-487/21. Even though this does not bind the domestic courts, the effect of section 6(2) of European Union (Withdrawal) Act 2018 is that courts may have regard to EU case law where it is relevant to the matter before them.

Of course, there are also times when merely providing a snippet in the form of a name constitutes a failure to provide all of the personal data in scope (omitting the final five words of “Jon Baines works at Mishcon de Reya” would be to omit some of my personal data). But the “context duty” seems to me to go further, and creates, where it is necessary, an obligation to provide information beyond what is in the source documents.

Most of the other points in the judgment, as important as they were to the facts, and as interesting they are, particularly on the concept of “relating to” in the definition of “personal data”, will not necessarily change things for most data subjects and controllers.

But this “context duty” feels to me to be an advancement of the law. And I suspect controllers can now expect to see data subjects and their lawyers, when making subject access requests (or when challenging responses), begin to argue that the “context duty” applies.

The views in this post (and indeed most posts on blog) are my personal ones, and do not represent the views of any organisation I am involved with.

Leave a comment

Filed under Data Protection, GDPR, judgments, subject access, UK GDPR

Tagged as ,

March 13, 2025 · 6:32 am

Cabinet Office unsuccessfully appeals FOIA information notices

When a public authority relies on an exemption to refuse to disclose information in response to a Freedom of Information Act request, the requester can ask the Information Commissioner’s Office for a decision as to whether the refusal was in accordance with the law. In order to make such a decision, the ICO may often need to see the information withheld by the public authority. Where the public authority is unwilling to provide this, or perhaps drags its heels over it, the ICO may serve, under section 51 of FOIA, an “information notice”, requiring the information to be provided. Failure to comply with an Information Notice can be certified as contempt of court, but there is a right of appeal to the First-tier Tribunal.

And so it was that the Tribunal recently found itself hearing appeals by the Cabinet Office in relation to two Information Notices served on it by the ICO, who is investigating whether FOIA requests for information relating to Rishi Sunak’s declarations of interest when he was Prime Minister.

The Cabinet Office sought to argue, among other things, that access by the ICO was not necessary, was unfair and damaging to the process of handling ministerial declarations of interest, and would constitute unlawful processing of personal data. All of these arguments got short shrift from the Tribunal – ultimately, it held that it would not be possible to determine whether any of the exemptions prayed in aid by the Cabinet Office were made out without an examination of the material, and the appeals were dismissed.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

Leave a comment

Filed under access to information, Cabinet Office, Freedom of Information, Information Commissioner, information notice, Information Tribunal, judgments

Tagged as ,

March 12, 2025 · 4:50 am

Cabinet Office wins Covid face masks FOIA appeal

The Information Tribunal has overturned a decision of the Information Commissioner’s Office and ruled that the Cabinet Office is not required to disclose minutes of meetings in June and July 2020 at which policy decisions were taken to make mandatory the wearing of face masks in shops and on public transport.

It is a shame that, for a decision of some import, the judgment reads like a stream-of-consciousness draft, and that it is infused with unnecessary sarcasm at various points.

The ICO had determined that although the exemption at s35 FOIA (for information relating to the formulation of government policy) was engaged. He acknowledged the importance of a protected space for government decision-making, and of the principle of collective responsibility, but decided that the “exceptionally weighty” public interest favoured disclosure.

The Tribunal, however, via reasoning which is – frankly – very difficult to follow, appears to have focused on the issue of “accountability”, something that the requester had mentioned rather in passing in support of his request, but which was not a matter expressly mentioned in the ICO’s decision. Having fixed on this concept, the Tribunal appears to have decided that as those in government at the time have since been held accountable in various ways, there was diminished public interest in achieving accountability by way of disclosure of the requested information. The key passage is probably this (at 57):

In considering the context of this request there is a stark contrast between the salience and effectiveness of other multiple forms of accountability…and the value of the information sought – in contrast with the risk of harm to the functioning of government caused by its release disproportionate to any benefit.

I do not say the Tribunal has necessarily got this wrong, but I do say that this a FOIA case of some significance, and that it warranted a clearer judgment.

Whether the judgment is amenable to an appeal is not entirely clear, but it’s worth pointing out that the original requester was not a party to, and was not joined to, these proceedings, and so I do not believe he himself has a right of appeal to the Upper Tribunal, and one wonders whether the ICO will have the enthusiasm to do so, given the costs involved.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

Leave a comment

Filed under Cabinet Office, FOIA, Freedom of Information, Information Commissioner, Information Tribunal, judgments

Tagged as , ,

March 8, 2025 · 6:31 am

Can a data subject inspect withheld information in court proceedings?

When a controller, in response to a subject access request, has withheld personal data on the grounds of an exemption or exemptions, the data subject can apply to the court for a compliance order, under section 167 of the Data Protection Act 2018. That application will be determined by a judge who must determine whether the personal data was properly withheld or not. But general rules in adversarial proceedings do not permit one side and the judge to have access to material when the other side does not. So can the claimant and his/her lawyers therefore have access to the withheld information? Of course not – you all say – that would be absurd. However, the picture is not quite as clear as one might think.

Section 15(2) of the Data Protection Act 1998 specifically dealt with this issue: it said that the information should “be made available for [the judge’s] own inspection but shall not, pending the determination of that question in the applicant’s favour, require the information sought by the applicant to be disclosed to him or his representatives”.

But no such provision is contained in the equivalent sections of the 2018 Act. That appears to have been a drafting error.

The issue came up in X -v- The Transcription Agency LLP [2024] 1 WLR 33, and the court there held that

it would defeat the purpose of the legislation if a person challenging the application of an exemption were to be given sight of the material for the purpose of advancing his or her arguments…It would bring about a situation in which a party seeking personal data “would have obtained the very thing which the hearing was designed to decide”

As a result, I imagine, of the X case, Parliament moved to address the lacuna in the law: the Data Protection and Digital Information Bill contained a clause which would have given the court the express power contained in section 15(2) of the 1998 Act. That Bill was, of course, dropped just before the 2024 General Election, but the Data (Use and Access) Bill, now speeding through the Commons, contains something similar, at clause 103.

And so it was that the issue again arose in recent proceedings – Cole v Marlborough College [2024] EWHC 3575 (KB) – involving a former pupil who is seeking information through subject access regarding an investigation into a disciplinary matter in his former school.

As in X, the judge noted the absence of any express power to inspect the materials without permitting their disclosure to the claimant. But, relying on X, the judge held that there was an implied power (either implied within section 167) and/or in exercise of the court’s inherent jurisdiction.

Given the impending amendment of the statute to make the power express, rather than implied, these cases will probably just become footnotes, rather than landmark judgments. But they’re interesting for illustrating how courts will find implied powers and procedures where justice demands it.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

4 Comments

Filed under access to information, Data Protection Act 2018, judgments, subject access

Tagged as ,

February 19, 2025 · 1:03 pm

FOI doesn’t need a “purpose”

[reposted from my LinkedIn account]

At the close of an otherwise unobjectionable and unsurprising refusal of a Freedom of Information Act 2000 appeal (on the issue of a vexatious request), the Information Tribunal judge says this:

“FOIA exists to safeguard freedom of information. It was not enacted to serve as a tool for furthering personal campaigns and causes, however heartfelt they may be.”

When Parliament enacted FOIA it expressly declined to insert a “purpose clause”. As its explanatory notes say “A request for information can be made by any individual or body, regardless of the purpose of the application.” So if someone wants to use FOIA as a tool for furthering personal campaigns and causes, then (as long as their requests are not, as they were here, vexatious) they jolly well can. And judges should respect this.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

Leave a comment

Filed under access to information, FOIA, Freedom of Information, Information Tribunal, judgments, Uncategorized

Tagged as

February 19, 2025 · 9:41 am

The state of central government transparency

[reposted from my LinkedIn account]

This is one of the most extraordinary FOIA judgments I’ve ever seen, and it says an awful lot about the approach to transparency at the centre of the civil service.

The Cabinet Office have been trying to resist disclosure under FOIA of copies of blank ministerial declaration of interest forms, on grounds that to do so would be prejudicial to the conduct of public affairs, because among other things [checks notes] “Disclosure may lead to speculative scrutiny regarding why certain elements are included in the forms, potentially leading to amendments to the form which undermines its effectiveness”.

But there’s also an extraordinary citation of a piece of evidence given by a Cabinet Office witness – the “Director of Propriety and Ethics” – to the effect that the system for Minister declaring interests relies heavily on the trust and candour of Ministers, and the effect of disclosure would be that they “may be reluctant to provide the same level of detail” than they do currently.

Let’s just think about that. Ministers have a constitutional and ethical duty to declare interests, but this relies on trust and candour, and disclosure of a blank declaration form might mean that those we trust to be candid in their ethical duty to declare those interests might decide to be less trustworthy and candid as a result? What a sorry state of affairs.

Fortunately, the Information Tribunal, like the Information Commissioner’s Office before, had no truck with these arguments, and refused the Cabinet Office’s appeal.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

Leave a comment

Filed under access to information, Cabinet Office, FOIA, Freedom of Information, Information Commissioner, Information Tribunal, judgments

Tagged as ,