Monthly Archives: July 2019

Penalty Notices and Notices of Intent

Yesterday there was a great deal of excitement as some news outlets reported that British Airways had been fined £183m by the Information Commissioner’s Office. It became apparent fairly quickly that this wasn’t what had happened and that we are still waiting for the Commissioner to issue the first “penalty notice” for a breach of the General Data protection Regulation.

What did come to light yesterday was that the Commissioner had issued a notice of intent to British Airways giving them notice that she intends on issuing a penalty notice in the sum f £183m. This is not the first time where news of a notice of intent has resulted in reporting that the Commissioner had actually issued a financial penalty. The last time was when she issued Facebook with a notice of intent in respect of a pre-GDPR breach (a penalty was subsequently served on Facebook in the sum of £500,000 and that penalty is currently the subject of an appeal to the First-Tier Tribunal).

There is quite a bit of difference between a notice of intent and a penalty notice (formally known as a monetary penalty notice in the Data Protection Act 1998) and they shouldn’t be confused with one another. So, given the confusion, I thought I might write a brief guide to the process adopted in the UK in respect of administrative fines under the GDPR and the Law Enforcement Directive.

The process essentially begins with the Commissioner opening an investigation. This could be as a result of a mandatory breach notification by the controller, a complaint made by a data subject or  it having come to the attention of the Commissioner in some other way (for example, via the media). The Commissioner then enters into an information gathering phase, and she has the power to compel (subject to appeal and some other limited exceptions) data controllers to provide her with information by issuing an information notice should data controllers refuse to engage with her office.

At some stage the Commissioner will decide whether enforcement action is appropriate in the particular case. There will have been a dialogue of sorts going on between the Commissioner’s office and the controller during the information gathering phase. A financial penalty is not the only option available to the Commissioner. If the Commissioner decides that an administrative fine (in GDPR language, or “penalty notice” in the language of the Data Protection Act 2018 (“DPA2018”)) might be the appropriate means to deal with the breach, then she is required by Paragraph 2(1) of Schedule 16 to the DPA2018 to the to give written notice to the controller of her intent to do so; this is known as a “notice of intent”. This notice must contain certain information, which is set out in paragraph 3 of Schedule 16 to the DPA2018.

The notice of intent is an important step because, by virtue of paragraph 3(4) of Schedule 16, the notice of intent must contain details of a period in which the controller can make written representations to the Commissioner; this period must not be less than 21 days. The Commissioner is prohibited from serving a penalty notice until this period has expired (paragraph 4(1) of Schedule 16). Furthermore, before deciding to issue a penalty and before finally deciding upon the amount of any penalty, the Commissioner must consider any written or oral representations made by or on behalf of the controller (paragraph 4(2) of Schedule 16).

Essentially, the notice of intent forms part of the due process of law. The Commissioner sets out in the notice the basis upon which she believes a penalty notice is appropriate and the proposed amount of the penalty notice. The controller then has an opportunity to make its case to the Commissioner and put forward a legal or factual case which:- (a) argues that no penalty notice should or can be given; (b) challenges proposed findings in fact contained within the notice of intent; and/or (c) challenge the proposed amount.

When the commissioner issues a notice of intent, she (and her office) must continue to have an open mind. It is not simply a tick-box exercise; it is an important part of a formal legal process. The Commissioner must be open to being persuaded by the controller that she is wrong in any of the matters set out in the notice of intent; including, being persuaded that the legal tests for issuing a penalty notice has not been met.

A notice of intent is certainly not (or shouldn’t be) a guarantee that a penalty notice will follow, or that it will be in the amount specified in the notice of intent. It is no more than a formal document giving notice to a controller of the Commissioner’s intentions and forms part of the legal process for issuing an administrative fine.

Once a notice of intent has been served by the Commissioner, she is normally required to issue the penalty notice within 6 months (paragraph 2(2) of Schedule 16); this includes the time permitted for written, and where applicable, oral representations. However, this period can be extended where the Commissioner and the controller agree (paragraph 2(3) of Schedule 16)

Appeals
Unlike a notice of intent, a penalty notice is subject of a right of appeal to the First-Tier Tribunal. In such an appeal all of the relevant factual and legal matters are reconsidered by the Tribunal. The Tribunal is empowered to uphold the penalty notice, modify the penalty notice or quash the penalty notice. Thereafter, there are appeals (but not as of right, only with permission) to the Upper Tribunal and the courts on points of law. Failures within the notice of intent procedure would give rise to grounds of appeal in respect the penalty notice. Depending upon the nature of the defects they could ultimately lead to the Tribunal quashing the Penalty Notice.

“One Stop Shop”
One final thing of note is that the Information Commissioner is acting as the “lead supervisory authority” in the British Airways matter; this is a mechanism which exists in the General Data Protection Regulation and applies so long as the United Kingdom remains a member of the European Union. Other supervisory authorities from elsewhere in the EU will also have the opportunity to comment on the Commissioner’s enforcement action in this case. This is an important aspect to note in relation to all enforcement action, not just penalty notices. Before taking a final decision in the British Airways case the Information Commissioner will have to circulate a draft of her decision to those other supervisory authorities, who are then permitted to make comments; the Commissioner must take these comments into account. This mechanism applies where there is cross-border processing taking place (see Article 4(23) of the General Data Protection Regulation for a definition of “cross-border processing”), which was the case in repsect of the British Airways data breach.

Alistair Sloan

We are able to assist data subjects, controllers and processors with data protection law matters, as well as a range of other information law concerns. If you would like to speak to us about an information law matter, then please contact our team on 0141 229 0880 or by E-mail.

Dealing with vexatious FOI Requests

The call for views by the Public Audit and Post-Legislative Scrutiny Committee of the Scottish Parliament (“the Committee”) in respect of its post-legislative scrutiny of the Freedom of Information (Scotland) Act 2002 (“FOISA”) ended on 21 June 2019 (having been extended a couple of times). One of the issues that came up on a number of occasions in the Committee’s discussions and evidence sessions prior to formally deciding to undertake post-legislative scrutiny of FOISA was the issue of vexatious requests. This issue has come up again in a number of responses to the call for views provided by Scottish public authorities (but certainly not all those Scottish public authorities that submitted responses).

It does seem as though Scottish public authorities, generally, are fairly poor at utilising section 14 of FOISA, which provides that a Scottish public authority does not need to comply with a request for information where it is vexatious. The Scottish Information Commissioner has also expressed the view that authorities are not utilising the available provisions within FOISA to deal with vexatious requests, such as at an evidence session before the Committee on 10 January 2019 [pdf].

The response of by Glasgow City Council [pdf] provides an example of a single requester who has made around 100 FOI requests on a related topic. It strikes me that requests from this particular requester on this particular topic could very well fall within the ambit of section 14 (although, I make that comment with only that information which is available from Glasgow City Council in its response). While the law requires the request to be vexatious, rather than the requester themselves, it is permissible to look at the requester’s conduct towards, previous correspondence with and previous requests to the authority in determining whether a particular request that has come in is, in fact, vexatious. This is something that Scottish public authorities seem to struggle with and often seem look at a particular request in isolation and not necessarily consider the wider background and context.

The leading case on section 14 of FOISA, Beggs v Scottish Information Commissioner, was only decided at the end of 2018 and therefore prior to that there was no authoritative guidance on the application of section 14 of FOISA. However, the Scottish Information Commissioner and Scottish public authorities have looked to Dransfield v Information Commissioner to help with the application of section 14 of FOISA. In Beggs the Inner House of the Court of Session essentially approved of the decision of the Court of Appeal in Dransfield. The decision in Beggs is, subject to any appeal to the UK Supreme Court, binding authority on the operation of section 14 of FOISA. Scottish public authorities can therefore look to both the Judgment of the Court of Appeal in Dransfield and the opinion of Lord Brodie in Beggs for guidance on section 14 of FOISA and how to apply it in appropriate cases.

The Court of Appeal and the Inner House of the Court of Session have both stressed that the right of access to information is a constitutional one and so the bar for engaging section 14 is a high one. However, it is clear that the bar is not so high so as to be impossible to meet in practice.

Section 14 of FOISA allows Scottish public authorities to consider matters that would not normally be relevant to FOI requests, such as the identity of the requester and their motives. Scottish public authorities (and indeed, public authorities working under the Freedom of Information Act 2000) should remember that they can look at a requester’s motives; for example, a malicious motive can be an indicator that a request is vexatious (but is not necessarily evidence that the request is, in fact, vexatious): Beggs at paragraph 33. Equally, the absence of a malicious motivation is not necessarily evidence that the request is not vexatious.

A person’s previous dealings with an authority can be relevant as can their other FOI requests: if a person is showing signs of obsessive behaviour, then that could be an indicator that the request is vexatious. The authority needs to look at the request objectively, in the surrounding circumstances, and come to a judgement as to whether the request is vexatious. However, it will need to remember to have evidence to support its conclusion in case the requester makes an application to the Commissioner challenging the application of section 14 by the authority.

Perhaps there is concern within authorities about getting it wrong and having a section 14 refusal overturned by the Commissioner; however, we can only learn from doing and from our mistakes. There are 96 decision notices on the Scottish Information Commissioner’s website relating to section 14(1) of FOISA (the specific part of section 14 that deals with vexatious requests). This number does seem to be rather small given that wide opinion coming from Scottish public authorities over many years that vexatious requests are a particular problem. Over 50 of those decision notices find entirely in favour of the authority and a good number are classified as partially upheld (many of which appear to have included technical defaults by the authority). It is clear that where a Scottish public authority appropriately deploys section 14 in respect of vexatious requests, the Commissioner will uphold that decision.

It certainly does seem to be the case that Scottish public authorities are reticent to utilise section 14 of FOISA. Perhaps, it is because they do not fully understand the scope of section 14 or are unsure about its precise application – it can potentially be used in a wide variety of circumstances. Scottish public authorities could certainly be using section 14 much more frequently than what they are at present and they should seek to become much more confident in using section 14. Indeed, a majority of the examples that I have seen emanate from Scottish public authorities, which they put forward as examples of problems that they are facing which cannot be dealt with by the application of section 14; most probably could, in fact, have been dealt with by the application of section 14. The same level of reluctance is not obviously present in respect of those authorities subject to the Freedom of Information Act 2000.

Alistair Sloan

If you are a requester or a public authority who would like advice or assistance in regards to freedom of information law then contact our team on 0141 229 0880 or by E-mail. We are also able to assist with a range of other information law matters.

Privacy, the common law and Scotland

In a recent opinion from Lord Bannatyne (B C and Others v Chief Constable Police Service of Scotland and others [2019] CSOH 48), sitting in the Outer House of the Court of Session, we have the first express statement that there is a right of privacy at common law in Scotland. Traditionally in Scotland, privacy law has been dealt with through the European Convention on Human Rights, the Human Rights Act and data protection law.

This case involved a number of police officers who are facing disciplinary proceedings by the Police Service of Scotland for alleged misconduct which is founded upon a number of messages sent via WhatsApp. The messages came into the possession of the professional standards department having been discovered on the phone of an officer who was being investigated in connection with alleged sexual offences.

The messages in question were characterised by Senior Counsel for the Police Service of Scotland in her written submissions as being “on any view, blatantly sexist and degrading, racist, anti-semitic, homophobic, mocking of disability” and included “a flagrant disregard for police procedures by posting crime scene photos of current investigations.” [para 166] Lord Bannatyne believed that it was “a characterisation which a reasonable person having regard to the content of the messages would be entitled to reach. I conclude that the content of the messages can be regarded as potentially informing the issue of breach of Standards in circumstances calling into question the impartial discharge of the petitioners’ duties.” [para 166]

In terms of the common law right to privacy, the starting point for Lord Bannatyne was the relationship between the Human Rights Act 1998 and the Common Law. He quoted Lord Reid, with approval, in R (Osborn) v The Parole Board at paragraph 57 of that judgment. From that passage Lord Bannatyne concluded that if the right to privacy exists at common law, Article 8 of the convention does not supersede it. Lord Bannatyne noted that the European jurisprudence could be used to help inform and develop a common law right to privacy.

He then went on to ask whether there was a justification for a right to privacy in the common law. He cited, with approval, the words of Lord Nicholls at paragraph 12 of the judgment in Campbell v MGN Ltd. Lord Bannatyne thought that the right to privacy could “be described as a core value and one which is inherent in a democratic and civilised state.” [para 106]. He continued:

“[it] seems to flow from the centrality of the role of privacy in a democratic society and particularly in a society where electronic storage of information and electronic means of intrusion into the private lives of a citizen by government, private organisations and individuals are growing exponentially the common law should recognise the right to privacy.” [para 107]

Lord Bannatyne considered that the English authority on the point was of assistance. In England and Wales the common law on privacy has been developed in the context of the development of the law on breach of confidence. Scotland also has a concept of breach of confidence, which is a well understood remedy and it has been explicitly accepted previously that the law in Scotland in respect of breach of confidence is the same as the law in respect of breach of confidence in England and Wales (see, for example, Lord Advocate v Scotsman Publications).

At paragraph 116 of his opinion, Lord Bannatyne observed “that given privacy is a fundamental right I think it highly likely that it exists in the common law of Scotland.” He also noted that it was “inherently unlikely” that Scottish and English law in relation to this fundamental matter are entirely different.

Finally, he considered the existing case law in Scotland (to the extent that there is any) tended to support the view that such a right exists in the law of Scotland. He also found it “noteworthy” that none of the cases to which he was referred expressly or implicitly stated that there was no common law right to privacy in Scotland.

Lord Bannatyne went on to consider that the Petitioners could have “no reasonable expectation of privacy” flowing “from the attributes which arise as a result of their position as constables.” [para 166] It is not the case that police officers, as a result of their position, have no right to privacy at all, but, rather, that this right is limited. Lord Bannatyne opines that the limitation can be defined in the following way: “f their behaviour in private can be said to be potentially in breach of the Standards in such a way as to raise doubts regarding the impartial performance of their duties then they have no reasonable expectation of privacy.” [para 168] A police officer, because of the attributes of a person holding the office of constable, is in a different position to an ordinary member of the public. [para 168]

The remaining issues that had to be dealt with by Lord Bannatyne were dealt with in, comparably, fairly short compass. Lord Bannatyne held that “there is a clear and accessible basis for the disclosure [by the police, as a public authority, to the professional standards branch of Police Scotland] in the circumstances of this case.” [para 192] He also held that the disclosure decision was not an arbitrary one. [para 192]

Lord Bannatyne also held the interference was necessary, in accordance with Article 8(2) of the Convention. He did not agree that all of the matters listed in Article 8(2) were engaged, but did hold that ‘public safety’ and ‘the prevention and detection of crime’ were engaged. [para 198] In terms of the balancing exercise to be carried out, Lord Bannatyne considered that the balance was“heavily weighted on the side of disclosure” and he was “unable to identify a less intrusive measure which could have been used without unacceptably comprising the objectives [he had] identified.” [para 201]

Finally, in respect of interdict, Lord Bannatyne held that even if he had been with the Petitioners he would nevertheless have held that the Petitioners were not entitled to the interdict which they sought. [para 202]

This is an important case as it is the first time that a Scottish court has expressly declared that there is a common law right to privacy in Scotland. That, however, has to be tempered with the fact that it is a decision of the Outer House and therefore only of persuasive authority in the Court of Session and lower courts. A different Lord Ordinary (or a Sheriff) may ultimately reach a different conclusion (although, I think that unlikely). Although, the Petitioners were right on this point, they ultimately lost the case and the petition was refused. Therefore there may well be a reclaiming motion (appeal) to the Inner House and this point may well be considered and decided upon by the Inner House. This would give us binding authority which all the lower courts in Scotland would be required to follow stating that there is a common law right to privacy in Scotland.

The decision will certainly add an additional tool to the armory of individuals who are concerned about their privacy and breaches thereof; it will also be another angle which those advising on issues of privacy will have to consider. We may begin to see more cases proceed on the basis of a breach of the common law right to privacy as opposed to cases proceeding on breaches of convention rights and data protection law.

Alistair Sloan

If you would like advice in connection with any privacy matter, or any other information law matter; contact our team on 0141 229 0880 or by E-mail. You can also follow our dedicated Information law twitter account.