In Colleen Smith v IC and Devon & Cornwall Constabulary (EA/2011/0006), the requester asked for information on the number of school teachers in specified towns who had been investigated, cautioned and charged under the Sexual Offences Act 2003 between January 2005 and November 2007. The Constabulary eventually relied on the personal data at section 40(2) of the Freedom of Information Act (‘FOIA’).
The Commissioner found that, where the answer was “zero”, this was not personal data and should be disclosed; otherwise, the information could be withheld under section 40. The Tribunal has upheld this decision, albeit for different reasons.
This decision is worth noting on a number of grounds.
First, this is a good illustration of the approach from Department of Health v IC  EWHC 1430 (Admin) (the “abortion statistics” case – see my post here) to the definition of “personal data” in the context of apparently anonymous statistics. Here the Tribunal considered both the disputed information concerning numbers of alleged sex offenders and the “other information” held by the Constabulary, and was satisfied that living individuals could thereby be identified. Furthermore, for obvious reasons, this constituted “sensitive personal data”.
Secondly, the Tribunal turned to fairness of disclosure. As regards reasonable expectations of data subjects, it concluded (for confidential reasons, and notwithstanding that one can generally assume sensitive personal data will not be disclosed) that the data subjects in these circumstances could have had no reasonable expectation that these statistics would not be disclosed at the relevant time, i.e. late 2007.
Thirdly, the Tribunal also disagreed with the Commissioner that disclosure created a risk of harm to the suspected offenders at the relevant time.
Fourthly, the Tribunal considered whether a condition from Schedule 3 of the Data Protection Act 1998 would be met. It did so by asking itself whether paragraph 3 of the Schedule of the Data Protection (Processing of Sensitive Personal Data) Order 2000 applied. That concerns, inter alia, disclosure of information concerning alleged unlawful acts for “special purposes” such as journalism. Disclosure must, however, be “in the substantial public interest”.
The “special purpose” of journalism highlights the following important reminder. It is by now axiomatic that FOIA is “motive blind”. However, the cases of Ferguson v IC(EA/2010/0085) (on which, see my post here) and Brett v IC (EA/2008/0098) imposed an important gloss on that principle. The Tribunal in Ferguson summed up the point thus:
It is often stated that requester’s rights under FOIA are purpose-blind, in the sense that an applicant’s personal identity and motives for requesting information are irrelevant. This generalisation can mislead. There are some cases in which the applicant’s identity and motives may shed light on the public interests involved. More significantly, the applicant’s identify and motives can be of direct relevance to the exemption in FOIA s40(2) because of the provisions of DPA disclosure and to the interests pursued by the persons to whom the disclosure would be made. For example, a journalist or author may be able to outflank the s40(2) exemption by reliance upon DPA Schedule 3 condition 10 and paragraph 3 of the Schedule to the Data Protection (Processing of Sensitive Personal Data) Order 2000, where it is in the substantial public interest that wrongdoing should be publicised.
The Tribunal in Smith agreed. The appeal, however, failed because disclosure of this information would not be “in the substantial public interest”.
The Tribunal thought it “reasonable to assume… that the public had an ongoing need for reassurance as to the level of activity by sexual offenders in particular localities and transparency and accountability in what the police were doing about it”. The threshold of “substantial public interest”, however, required a certain level of urgency in the need to reassure the public. That threshold was not met here.
In reaching this conclusion (which the Tribunal described as “finely balanced”), the Tribunal took into account: the evidence as to the machinery for the monitoring and supervision of sex offenders in the community; the risk of vigilantism, which can force suspects to “disappear”, which in turn increases the risk of reoffending. It added that:
It was not enough, in the Tribunal’s view, that sexual offences by teachers or others in positions of trust was a matter of keen interest to the public. This, on its own, did not make disclosure “in the substantial public interest”. It was the Tribunal’s task to weigh against the wholly understandable concern felt by members of the public on this subject, the detrimental effects that disclosure could have.
The upshot was that, although disclosure would be fair, section 40(2) took effect because no Schedule 3 condition would be met.
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