“processed lawfully, fairly and in a transparent manner in relation to the data subject”
“Personal data shall be processed lawfully, fairly and in a transparent manner in relation to the data subject”. - In the case of an FOIA request, personal data is “processed” if it is disclosed in response to a request. This means that personal data may only be disclosed if to do so would be lawful (i.e. it would meet one of the conditions of lawful processing listed in Article 6(1) UK GDPR), fair and transparent. - The Commissioner considers that the lawful basis most applicable is basis 6(1)(f), which states: “processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child”. - The Appellant has a legitimate interest in the requested information. - He wishes to know who told Sussex Police to check on his late wife, as he believes that the visit was not reasonable in the circumstances, and that the stress of it exacerbated her poor health, leading, unfortunately, to her premature death. The Appellant has said that he believes he knows the data subject’s identity and wants official confirmation of it. Disclosure of the data subject’s identity would assist him to pursue his concerns about this, across multiple agencies. - However, disclosure under FOIA is to the world at large. The Commissioner is of the view that data subjects have a clear and strong expectation that their personal data will be held in accordance with data protection laws. The Commissioner considers that the data subject in this case would have a reasonable expectation that their identity, as the person recommending a welfare check, would not be released to the world at large by means of an FOI request. The Commissioner considers that it would be an intrusion of privacy and could potentially cause unnecessary and unjustified distress to the individual. - Furthermore, while the Commissioner accepts that the Appellant is pursuing a legitimate interest, he does not consider that, in this case, disclosure of the withheld information is necessary to meet that legitimate interest. There are other formal channels through which the complainant could pursue his concerns, which would not necessitate the disclosure of the data subject’s identity to the world at large. - Having exhausted Sussex Police’s complaints mechanism, the Appellant may complain to the Independent Office for Police Conduct (‘the IOPC’). The IOPC is responsible for investigating “the most serious and sensitive incidents and allegations involving the police”
“Article 7 of the United Nations Declaration of Human Rights which “…says “all are equal before the law”, yet Sussex Police are invoking a rule to give my adversary the advantage of anonymity…”
“…Sussex Police had already tried to argue that informants have an expectation of confidentiality, but did not challenge my rebuttal that this obviously did not apply to most complainants, even victims of sexual assaults, or witnesses for the prosecution or eyewitnesses reviewing an identity parade….” [18]. The Appellant averred that the Commissioner’s decision sets “…a dangerous precedent … for police forces throughout Britain to invent witnesses for their own pleasure and purposes or to conceal real witnesses where the outcome has been equally disastrous. As we now all know, policemen of today are capable of anything….”. [19]. The Appellant stated that: “…Ironically and tragically, the clumsy attendance for a so-called welfare check provoked the premature death of my wife whom the NHS had sent home days before as incurably but not terminally ill. To quote: “… she was expected to live for a number of months …”. [20]. The Appellant contended that his request not only sought the name of the informant but also the actual wording of the informant’s complaint as well as the forename of the officer named “Robinson” but that the decision notice does not address the latter two issues. [21]. The Appellant stated that the Police are only refusing to disclose the informant’s name “…because they belatedly realise that they were misinformed. Furthermore, the fact that the informant misled them, whether innocently or maliciously, is all the more reason to be identified so as to prevent a repetition of wasting police time, potentially contrary tosection 5(2) of the Criminal Law Act 1967 ….”
“…while the Appellant has a legitimate interest in the withheld information in this case, its disclosure is not necessary to meet that legitimate interest. The data subject has a strong expectation of privacy relating to the requested information and as disclosure is not necessary, the data subject’s consequent loss of privacy would be disproportionate and unwarranted.” [25]. The Commissioner maintained that the DN is not a binding precedent, and each case is determined on its own merits. Further, the Commissioner reminded the Appellant that a legitimate interest alone is insufficient to demonstrate that disclosure of the requested information would be lawful on the data protection principles. [26]. In relation to the Appellant seeking the name, working of complaint and forename of an officer named Robinson, the Commissioner argued that these matters are not within the scope of this appeal. [27]. The Commissioner stated that it would not be lawful, in this instance, to disclose the name of individual who requested a welfare check irrespective of whether the subject of that check was found to be well and without complaint. [28]. The Commissioner invited the Tribunal to uphold the DN and dismiss the appeal. The Appellant’s Reply to the Commissioner’s Response: [29]. The Appellant replied to the Commissioner on the 27th of March 2023 with the following statements; “Further to Private Eye’s complaint amid lobbying by the Crime Reporters’ Association that the police were seizing on data protection to conceal inconvenient matters, the Daily Mail of25 March 2023 quotes Andrew Marsh ahead of a meeting with … the Information Commissioner! Henceforth, suspects on serious charges will be named. What is good for the goose must be good for the gander. My case is where an informant is alleged to be behind a needless welfare check that, ironically, hastened my shocked wife’s death – and the praiseworthy Information Commissioner did record that this was my accusation. If there was an informant, she wasted police time and worse, so this is also a serious matter as, alternatively, would be invention by Sussex Police. Should it be argued, that the COP/ICO concession applies only to journalists, well, I was writing for the Evening Standard back in 1961 when I made my first broadcast on the BBC German service (Parliamentarisch und Unparliamentarisch). I hail from a writing family, and my father took me to the local county court – where I remember three cases vividly – when he was a reporter on the Willesden Chronicle about 74 years ago.” ahead of a meeting with … the Information Commissioner! The Tribunals’ Conclusions: [30]. The Tribunal are satisfied that the withheld information is the personal data of an identifiable individual (‘the data subject’) as defined insection 3(2) of the Data Protection Act 2018 and while we too accept that the Appellant ispursuing a legitimate interest, we do not consider that, on the facts of this case, disclosure of the withheld information is necessary to meet that legitimate interest. There are other formal channels through which the appellant could pursue his concerns, which would not necessitate the disclosure of the data subject’s identity to the world at large. [31]. The Tribunal accept that disclosure of the data subject’s personal data would be unlawful and in contravention of data protection principle (a), as set out under Article 5(1)(a) of the UK General Data Protection Regulation. [32]. The Tribunal agree that disclosing the data subject’s personal data would be unlawful and that section 40(2) of the FOIA is engaged. We therefore agree with the Respondent’s decision that the Constabulary was entitled to apply section 40(2) of the FOIA (an absolute exemption) to withhold the requested information. [33]. On considering the withheld information theTribunal agree with the Commissioners assertion that section 40(2) of the FOIA and the data protection principles under the UK GDPR are the correct sections/regimes under which to consider whether the requested information in this instance can be properly disclosed. Further, we accept that the Commissioner properly contended that Articles within the Declaration and Convention, insofar as they relate to receiving a fair trial are not relevant in this instance. [34]. The Tribunal acknowledge the observation of the Commissioner in the DN that having exhausted Sussex Police’s complaints mechanism, the Appellant could complain to the Independent Office for Police Conduct (‘the IOPC’). The IOPC is responsible for investigating “the most serious and sensitive incidents and allegations involving the police”