Edem GIA 1598 2012
| Jurisdiction | UK Non-devolved |
| Judge | Judge E. Jacobs |
| Judgment Date | 07 February 2014 |
| Neutral Citation | 2012 UKUT 464 AAC |
| Subject Matter | Information rights |
| Respondent | The Information Commissioner and the FSA |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | GIA 1598 2012 |
| Appellant | Edem |
[2014] AACR 19
(Edem v the Information Commissioner & the Financial Services Authority
Judge Jacobs GIA/1598/2012
11 December 2012
CA (Moses, Beatson and Underhill LJJ)
7 February 2014
Data protection – the meaning of “personal data” – when does disclosure contravene the data protection principles
The Financial Services Authority (FSA) refused Mr Edem’s application under the Freedom of Information Act 2000 which included a request for the names of the FSA officers who dealt with his case. Mr Edem complained to the Information Commissioner whereupon the FSA sent to him some information but not the names of the three officers concerned. The Commissioner accepted that Mr Edem had a legitimate interest in the grade of the officers who had dealt with his case but that any legitimate interest he had in the disclosure of their names was outweighed by the prejudice it would cause to the officer’s rights and freedoms. The First-tier Tribunal (F-tT) upheld Mr Edem’s appeal but the Upper Tribunal (UT) reversed that decision on appeal, on the grounds that in reaching its decision the F-tT had misdirected itself on the significance of Auld LJ’s “two notions” in Durant v Financial Services Authority [2003] EWCA Civ 1746 and had also misapplied them. Mr Edem renewed his appeal to the Court of Appeal. The issue before the court was whether disclosure of the names of the officials could be withheld on the grounds that it was personal data and that disclosure of that information would contravene the first principle of the Data Protection Act 1998.
Held, dismissing the appeal, that:
- the individuals could be identified from their names and the documents obtained from the FSA. A person’s name, in conjunction with job-related information, was his personal data (see Case C-101/01 Criminal Proceedings against Lindqvist [2003] ECR I-12971 and Case C-28/08 Commission v Bavarian Lager [2010] ECR I-6055). To argue that it was not possible to identify the officers from their names merely because they had previously worked for the FSA misunderstood the concept of an identifiable natural person. Personal data was data which related to a living individual “who can be identified”. That was a different concept from whether the person can in fact be contacted or traced. To disclose the names of the officers would be to disclose their personal data (paragraphs 13 to 14)
- the F-tT was wrong to apply Auld LJ’s “two notions” in this case. There was no reason to do so. The information was plainly concerned with the three individuals. Neither of Auld LJ’s “two notions” had any application and to seek to do so ran contrary to the Data Protection Act 1998, the Directive 95/46/EC, and the jurisprudence of the Court of the Justice of the European Union (see Case C-101/01 Criminal Proceedings against Lindqvist [2003] ECR I-12971 and Case C-28/08 Commission v Bavarian Lager [2010] ECR I-6055) (paragraph 17)
- in a case such as the instant appeal, questions of whether the information is biographical or sufficiently focussed upon a particular named individual are of no relevance whatever. They have nothing to do with the question whether disclosure of a person’s name is disclosure of personal data. A name is personal data unless it is so common that without further information, such as its use in a work context, a person would remain unidentifiable despite its disclosure. In this case the three names referred to in the e-mails were obviously about those three individuals and no further enquiry was needed. The Upper Tribunal (UT) was right to reject the approach of the F-tT which was wrong as a matter of law (paragraph 20)
DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
As the decision of the First-tier Tribunal (made on 16 April 2012 under reference EA/2011/0132) involved the making of an error in point of law, it is SET ASIDE under section 12(2)(a) and (b)(ii) of the Tribunals, Courts and Enforcement Act 2007 and the decision is RE-MADE.
The decision is: the Information Commissioner’s decision notice FS50312938 is in accordance with the law.
REASONS FOR DECISION
A. Abbreviations DPA: Data Protection Act 1998
FOIA: Freedom of Information Act 2000
FSA: Financial Services Authority
Durant: Durant v Financial Services Authority [2003] EWCA Civ 1746
B. The issue- The principal issue in this case is whether a person’s name constitutes personal data.
- Mr Edem made his freedom of information request on 30 December 2009. He wrote to the FSA:
“I hereby lodge an FIA 2000 information request for a copy of all information that the FSA holds about me and/or my complaint that the FSA had failed to correctly regulate Egg Plc.”
The FSA refused to provide the information for a variety of reasons. I need only mention personal data. The FSA refused to provide some information on the ground that it was Mr Edem’s own data, which he could access under DPA. It refused to provide other information on the ground that it was the personal data of its junior employees.
- Mr Edem complained to the Information Commissioner. By the time the Commissioner gave his decision, the FSA had disclosed further information to Mr Edem. All that was withheld were the names of three officials; the name of a fourth was released by mistake. On 26 May 2011, the Commissioner issued decision notice FS50312938:
“20. The Commissioner accepts that the complainant has a legitimate interest in information about the grade of staff who handled his complaint. He accepts that such information would help reassure the complainant and the public that complaints to the public authority were being handled by staff of a certain grade.
21. The Commissioner notes that while the staff in question worked on the complainant’s complaint, they did not correspond with him about it. He also notes that the public authority has confirmed that they were not in public-facing roles and that these individuals were of a grade below that of manager. It is the Commissioner’s view that these members of staff would have had no expectation that their names would be released into the public domain.
22. The Commissioner is also satisfied that disclosure of their names would not add anything further to the way in which the complainant’s complaint had been dealt with. Therefore any legitimate interest in the disclosure of the names of these individuals is outweighed by the prejudice disclosure would cause to the rights and freedoms of the individuals concerned.”
- Mr Edem exercised his right of appeal to the First-tier Tribunal. The tribunal decided that the names of the officials did not constitute personal data and ordered that they be disclosed. The panel identified the first question it had to ask: were the names of the officials their personal data? They decided that “the names of the three members of staff, taken together with information that they were employed by the FSA at a given date, and information as to the positions they held, may well be sufficient to identify them. However, even if they can be identified, it does not follow that the information is personal data.” The panel then quoted from Auld LJ’s judgment in Durant and explained how they applied it:
“32. Applying the Durant principles, is the information personal data? The...
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Edem v IC and FInancial Services Authority
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