Information Commissioner GIA 702 2014
| Jurisdiction | UK Non-devolved |
| Judge | Judge N J Wikeley |
| Judgment Date | 26 August 2015 |
| Neutral Citation | 2015 UKUT 471 AAC |
| Subject Matter | Information rights |
| Respondent | Colenso-Dunne |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | GIA 702 2014 |
| Appellant | Information Commissioner |
[2016] AACR 9
(Information Commissioner v Colenso-Dunne
[2015] UKUT 471 (AAC))
Judge Wikeley GIA/702/2014
26 August 2015
Freedom of information – public interest test – whether right to publish names of journalists involved in Operation Motorman investigation following Leveson inquiry
Data protection – section 2(g) and Schedule 2 Data Protection Act 1998 – “sensitive personal data” – balancing exercise
In 2003 the Information Commissioner’s Office (the ICO), during an investigation into the illegal trade in personal information, seized from a private investigator documents containing the names of journalists who had employed him. Mr Colenso-Dunne made a Freedom of Information Act (FOIA) request for detailed information about the journalists, including their names, which the ICO refused on the basis that there was sufficient connection with criminal activity to bring the names within the meaning of sensitive personal data under the Data Protection Act 1998 (DPA). As the statutory regulator of public authorities under FOIA the Information Commissioner (IC) considered Mr Colenso-Dunne’s subsequent complaint against his office’s response and rejected it. The First-tier Tribunal (F-tT) upheld Mr Colenso-Dunne’s appeal against that decision. After analysing the documents it decided that the disclosure of some of the names would not breach the data protection principles in Schedule 1 to the DPA and that section 59(1) of the DPA did not apply, as disclosure could be “made with lawful authority”. It filtered the data within the documents and produced a reduced list of those names where there was a doubt about the legality of the transaction (but not an allegation of criminality). It decided that public interest outweighed the journalists’ privacy rights and that the reduced list should be disclosed to Mr Colenso-Dunne. The IC argued in his submission to the Upper Tribunal (UT) that the F-tT had erred in law in deciding that the reduced list did not contain sensitive personal data and that the proper application of the balancing of interests test should have favoured non-disclosure of the journalists’ names.
Held, disallowing the appeal, that:
- whether the disputed information was “sensitive personal data” had to be answered in the light of the immediate context of the information in question. The F-tT had been entitled to arrive at the conclusion that the information in the reduced list was not sensitive personal data. The fact that some people might misconstrue the fact that a journalist’s name was in the material seized from the investigator as an allegation that he or she had committed an offence did not convert personal data into sensitive personal data. The F-tT had directed itself properly on the relevant law and was entitled to conclude on the facts that the requested information was not sensitive personal data (paragraphs 47 to 48)
- the F-tT had not ordered the disclosure of all the names that formed the subject matter of the respondent's request. It had sifted out those journalists’ names where the enquiry was plainly legitimate or the information was incomplete. The reduced list was thus a sub-set of the original list, limited to those instances where there was at least a question mark over the legality of the transaction (but not an allegation of criminality as such). In so doing the Tribunal had appropriate regard to the privacy rights of those journalists who, on the face of the record, had no questions to answer. The F-tT had not erred in its approach to balancing the interests of the parties concerned (paragraphs 66 to 67)
- the F-tT was entitled to conclude that the statutory prohibition under section 59(1) of the DPA did not apply because, by virtue of section 59(2)(e), disclosure of the requested names would be “made with lawful authority” (and so the bar under section 44 of FOIA was not relevant) (paragraph 70)
DECISION BY THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
The DECISION of the Upper Tribunal is to dismiss the Information Commissioner’s appeal under reference GIA/702/2014.
The decision of the First-tier Tribunal (General Regulatory Chamber) (Information Rights) dated 29 November 2013, under file reference EA/2012/0039, in relation to Mr Colenso-Dunne’s appeal against Decision Notice FS50422884 issued by the Information Commissioner on 12 January 2012, does not involve any error on a point of law. The First-tier Tribunal’s decision accordingly stands.
However, the First Confidential Annex to the First-tier Tribunal’s decision is to remain confidential until the later of (i) the time for appealing against this decision of the Upper Tribunal shall have expired without an application for permission to appeal having been lodged; or (ii) in the event that such an application is filed, the date when it shall be determined or withdrawn.
The Upper Tribunal consents to the withdrawal of Mr Colenso-Dunne’s cross-appeal under reference GIA/1270/2014.
This decision is given under section 11 of the Tribunals, Courts and Enforcement Act 2007 and rule 17 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698).
REASONS
The role of the Information Commissioner: Quis custodiet ipsos custodies?
1. Mr Christopher Graham, the Information Commissioner (IC), is a man who wears two hats. He is the statutory regulator in the arena of information rights, holding the ring between requesters under the Freedom of Information Act 2000 (FOIA) and public authorities. So if requesters are unhappy with the response of public authorities to their FOIA requests, they may complain to the IC. But the IC is also himself a public authority (see Part VI of Schedule 1 to FOIA). So it may come to pass – as in this case – that the public authority IC is investigated by the regulator IC. In this decision, and in that rather peculiar context, the public authority is called the Information Commissioner’s Office (the ICO) and the regulator is the IC.
2. This dual role may only serve to fuel some of the more outlandish conspiracy theories that abound on the internet. Certainly, as the First-tier Tribunal noted in its preliminary decision on this appeal, this conundrum is “an unusual, and unsatisfactory, feature of this area of the law” (at paragraph [1]). So, as the Honourable Member of Parliament for Uxbridge and South Ruislip would doubtless ask, “Quis custodiet ipsos custodies?” Who will watch the watchmen? The answer is that the First-tier Tribunal (General Regulatory Chamber) – or “the Tribunal”, previously the Information Tribunal – does (and, on any further appeal, the Upper Tribunal), at least within the limited confines of their respective appellate jurisdictions.
The disputed information in this appeal
3. The disputed information in this appeal is the list of 305 journalists’ names seized by the ICO during a raid in 2003 on the home of Mr Steve Whittamore, a private investigator, as part of “Operation Motorman”. That investigation by the ICO forms part of the background to the various civil and criminal proceedings generated by the phone-hacking scandal and to the establishment of the Leveson Inquiry. The ICO (as public authority) refused to release the list of journalists’ names in response to Mr Colenso-Dunne’s request under FOIA. The IC (as regulator) dismissed Mr Colenso-Dunne’s complaint. The Tribunal, however, allowed Mr Colenso-Dunne’s appeal (under case reference EA/2012/0039). The IC now appeals to the Upper Tribunal against the Tribunal’s decision.
The Upper Tribunal appeal
4. An application by Mr Colenso-Dunne for a three-judge panel of the Upper Tribunal to determine this appeal having been dismissed by the Chamber President, Charles J, I held an oral hearing at Field House in London on 13 July 2015. The IC was represented by Mr Robin Hopkins of counsel, instructed by the Solicitor to the Information Commissioner. Mr Colenso-Dunne (who lives abroad, and was unable to attend) was represented by Mr Hugh Tomlinson QC, instructed by Bindmans, both acting on a pro bono basis. I am indebted to both counsel for their careful and well-focussed oral and written arguments.
5. There were technically two appeals before the Upper Tribunal. The IC’s appeal is under reference GIA/702/2014. Mr Colenso-Dunne had a cross-appeal, in effect supporting the Tribunal’s decision, under reference GIA/1270/2014. At the outset of the...
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