Last week the Information Commissioner published an update on her investigation into the use of personal data in political campaigning; it received much publicity and I wrote about the report on this blog. In the report it was revealed that the First-Tier Tribunal (Information Rights) (hereafter “FTT”) had dismissed an appeal by the United Kingdom Independence Party (“UKIP”) against an Information Notice served upon it by the Commissioner.
I have previously written on Information Notices more generally (which dealt with them under the Data Protection Act 1998 (”DPA98”), rather than the Data Protection Act 2018(“DPA18”)) and so I don’t propose to set out in any detail what an Information Notice is; however, in brief the Commissioner had the power to compel a person (not just a data controller) to provide her with certain information under section 43 of the DPA98; failure to comply with an Information Notice issued under the DPA98 is a criminal offence.
In my blog post last week I said that I would try and blog when the FTT published its decision in respect of UKIP’s appeal against the Information notice. The FTT has now published its decision in United Kingdom Independence Party (UKIP) –v– The Information Commissioner [pdf]. The background to the Information Notice is set out in the decision, but it appears that the Commissioner’s office wrote to UKIP asking it to provide certain information. UKIP responded, but did so in a very unsatisfactory manner. In particular the answers given were lacking in detail and contradicted information obtained by the Commissioner’s office from the Electoral commission website. As a result, the Commissioner used her power to compel information from UKIP.
UKIP appealed on the grounds that the Information Notice was “unjust, disproportionate and unnecessary because the UKIP has never suggested it would not comply and that a preferable course of action would have been for the Commissioner to write seeking clarification and specific details.“ [para 13] It seems that the Tribunal issued Directions asking the Commissioner whether she could issue a fresh Information notice because the FTT was not clear on certain matters; however, it was pointed out that this was not open to either the FTT or the Commissioner and that the FTT must allow or dismiss the appeal by UKIP.
The matters upon which the FTT was uncertain were clarified by the Commissioner and ultimately the appeal was dismissed by the FTT. The appeal was considered, at the request of both parties, on the papers alone and therefore no hearing took place. The Tribunal concluded that “the expressed intention of UKIP to provide information and co-operate with the Commissioner is at odds with the information provided by UKIP.” [para 19] UKIP was not arguing that the Notice was not issued “in accordance with the Data Protection Act ” [para 20].
It appears from the FTT’s decision that UKIP later did try to argue that it was not in accordance with the law founding upon the FTT’s own request for clarification; however, the FTT decided that the “notice, of itself, is clear” and that the reasoning advanced by UKIP did “not provide grounds for allowing this appeal.” [para 25]
The Tribunal also concluded that the appeal had no merit [para 26] before unanimously dismissing the appeal [para 27].
Information Notices are not a common feature of the data protection enforcement landscape. UKIP could seek to appeal the FTT’s decision to dismiss its appeal and whether UKIP seek permission to appeal the decision to the Upper Tribunal remains to be seen. My own view, from the information available in the FTT’s judgment, is that the ultimate conclusion of the FTT was correct; however, the route by which the FTT arrived at that conclusion is unhelpful and may be enough to persuade either the FTT or the Upper Tribunal to grant permission to appeal.
From reading the FTT’s decision it appears that there might have been some confusion on the part of the FTT concerning what its functions were in respect of Information Notices and what the statutory scheme for such a notice was. Whether this was down to the way in which the Commissioner had presented the case on the papers or down to a genuine lack of understanding by the FTT is something that we might never know (especially if there is no appeal by UKIP to the Upper Tribunal)
In terms of the actual decision; it is not at all surprising that the FTT did not take UKIP’s assertion that it would co-operate with the Commissioner at face value when presented with its response to the Commissioner’s more informal request for information from them. It underlines the importance of genuinely engaging with the Commissioner when they are undertaking investigations – they do have certain powers to assist them with their investigation and they do seem willing to use those powers where they feel as though they need to do so.
The framework for Information Notices has changed slightly under the GDPR/DPA18 – it’s no longer a criminal offence to fail to comply with an Information Notice; however, the Commissioner could go to court and obtain an Information Order from the Court where an Information Notice is not complied with. A right of appeal to the FTT continues to exist against Information Notices issued under the DPA18.
If you are facing an investigation by the Information Commissioner in respect of alleged failures to comply with privacy and data protection law, or if you require advice on any other information law matter you can contact Alistair Sloan on 0141 229 0880. Alternatively you can contact him directly by E-mail. We also have a dedicated information law twitter account which you can follow.