FOI/EIR FOI Section/Regulation S40 Issue Personal Data disclosed in open court
Line to take:

The disclosure of personal data may still breach the data protection principles even after it has been disclosed in open court.

Further Information:

The first data protection principle states that personal data should be processed fairly and lawfully.  

Where offences are prosecuted in open court, personal data (of any kind and including sensitive personal data) will be disclosed to those in attendance. It may be consequently be reported in the media and will be recorded and transcribed.

In a small number of cases, the Commissioner has considered whether a further request for personal data already disclosed in open court represents fair and lawful processing.  The principle seems to be that the more time that has elapsed since the date of the court case/conviction, the less likely any disclosure of that information will be fair and/or lawful.

Situations where the processing would be unfair

In case reference FS50075171, which concerned information about prosecutions relating to bus fare irregularities, the DN recognised that data is disclosed in court and could be reported, but the DN concludes that later disclosure would be unfair. It states:

“…in practice public knowledge of the issues is only short lived and may be limited to only a small number of people. Even where cases are reported in newspapers this does not lead to the establishment of a comprehensive, searchable database of offenders.

“To create such a database would prejudice the principle of the rehabilitation of offenders. There is established public policy on controlling access to the records of those who have been involved with the criminal justice system as demonstrated by the creation of the Criminal Records Bureau. It is clearly not desirable for the Freedom of Information Act to undermine these principles.”

The notice also points to the fact that personal data of this kind will be sensitive. Sensitive personal data shall not be processed unless at least one condition in Schedule 2 and one condition in Schedule 3 of the DPA can be satisfied. This further limits the possibility of disclosure.

In another case, reference FS50076855, which concerned the legal aid costs awarded to one of the parties, and did not therefore relate to the details of an offence the DN issued explains that, “disclosures that are required as part of the court proceedings are, in practice, only disclosures to a limited audience.” (para. 26)

The notice also refers to the reasonable expectations of the data subject. It advises that expectations will be shaped by what an individual is told about how their data will be used. It argues that though the individual in question would have realised that his personal information would have been disclosed in court, this is a far more restricted disclosure than disclosure to the general public under FOI, and not what the individual would have envisaged.

In yet another case DN (ref: FS50123489) the Commissioner decided that a list of names of individuals who had received an Anti-Social Behaviour Order (ASBO) in the Camden area, whether current or expired, could be disclosed, subject to certain redactions.  The Commissioner referred to Home Office guidance on ASBOs which suggested that publicity was the norm, not the exception, and that not only should it be expected that the local community would learn of the ASBO, indeed the effectiveness of the measure would depend on the community being aware of the orders.  The Commissioner accepted that the guidance related to local publicity at the time the order was made but felt that this advice could also be applied to disclosure to the general public and during the lifetime of the ASBO.

However this decision was not upheld by the Information Tribunal (ref: EA/2007/0021).

The Tribunal indicated that disclosure of this data would be unfair on the grounds that “…publicity long after the making of an order…is quite different from identification and denunciation when or shortly after the order is made…” (para 28). 

The Tribunal went onto say that later publicity would be an “unjustified humiliation” to individuals who had reformed their behaviour and that in any event the mechanism for punishing ASBO breaches was not additional publicity but rather criminal prosecutions.

Situations where the disclosure may be unlawful                                                                           

 It may also be unlawful to disclose details of past convictions if they are deemed to be ‘spent’ under the Rehabilitation of Offenders Act 1974.  This states that a conviction is spent if an individual does not re-offend within a specified rehabilitation period.  This principle gives effect to the public policy idea of allowing people to start with a clean slate after they have served their time/repaid their debt to society. 

Please refer to the Rehabilitation of Offenders Act for specific details of when and how a conviction will be ‘spent’ as the rehabilitation periods vary depending on the original offence and there are exceptions to the general policy however as a general rule, it will be unlawful, and thus breach the first data protection principle, to disclose details of spent convictions.      

For cases involving prosecutions by the Environment Agency for breaches of environmental legislation and the EA’s specific public and non-public registers of prosecutions, see correspondence on FS50074871 dated 19 February 2007 onwards. 

For completeness:

(DN ref: FS50074871)

In January 2005, a Sheffield newspaper asked for details relating to excessive expenses claims submitted by Doncaster Council’s councillors which in the late 1990s/2000 resulted in a number of the councillors being convicted of falsifying expenses claims whilst others volunteered to repay monies.  The case, nicknamed “Donnygate”, was widely reported in the area at the time and remains in the consciousness of the local communities.      

The Commissioner found that details of the criminal convictions could be disclosed without breaching the data protection principle because the “….information [was] the result of a conviction which had followed due process and took place in the relatively recent past …” (para 56) despite the convictions being several years old at the time of the request. 

Following advice in the DP surgery and taking into account the particular circumstances of this case, it was felt that the details of the convictions could be disclosed without breaching the first data protection principle but this approach will not be routinely followed in other cases.   

Armstrong v the Information Commissioner and HMRC

The case of Armstrong v the Information Commissioner and HMRC, where the applicant, an investigative journalist, requested documents referred to in court in the 2001 trial of Abu Bakr Siddiqui, illustrated similar principles, albeit in relation to s30, which support the IC’s position on s40. The Tribunal were clear that “even if the … information had entered the public domain by virtue of having been referred to during the Siddiqui trial in 2001, it does not necessarily follow that it remains in the public domain” (paragraph 85).

The Tribunal went on to note its agreement with the Commissioner that, similar to the bus fare irregularities case referred to earlier, “knowledge obtained in the course of criminal trials is likely to be restricted to a limited number of people and such knowledge is generally short-lived” (paragraph 85) and that “[e]ven if the information had previously entered the public domain, that is not in itself conclusive of whether the public interest weighs in favour of disclosure, it is merely one consideration to be weighed in the public interest balance” (paragraph 86); the context of the case should be taken into consideration

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Source Details
IT

Counsell / Legal Services Commssion

Walker / Transport for London

London Borough of Camden

Armstrong / HMRC

Related Lines to Take
LTT139, LTT185
Related Documents

FS50075171, FS0076855, Awareness Guidance 1, EA/2007/0021 (Camden), EA/2008/0026 (Armstrong)                                                                                                              

Contact HD / GF
Date 05/01/2009 Policy Reference

LTT86