Tag Archives: Home Office

Compensation for identifiable third parties following a data breach

The subject of data protection has, once again, been visited by the England and Wales Court of Appeal. At the end of last week the Court (Gross LJ, McFarlane LJ and Coulson LJ) gave its judgment in an appeal brought by the Secretary of State for the Home Department and the Home Office against a decision of the England and Wales High Court in which it was found liable to three members of a family following a data breach.

The Factual Background
The facts as found proved by the court at first instance are more fully set out in the judgment of Mitting J ([2016] EWHC 2217 (QB)), but they can be summarised for the purposes of this blog post in the following way.  The case concerns three members of a family TLT, TLU and TLV. TLT and TLU are married (but have different surnames) and TLU is the teenage son of TLT (sharing the same surname). In 2010 the family lawfully arrived in the United Kingdom. They claimed asylum. They were also jointed by an older child who was, in 2010, 17 years of age. Upon turning 18, he applied for asylum in his own right. His application fro asylum was rejected and he was returned to Iran in 2012. TLT and TLU heard from relatives in Iran that upon his return to Iran their son had been detained and tortured and subsequently released after paying a bribe.

On 15th October 2013 the Home Office suffered a data breach when it accidently published more information than it had intended to concerning the family return process. It had intended to publish the statistics contained in the first sheet of a spreadsheet, but not the underlying data that was contained in a second sheet. The error was discovered on 28th October 2013 and the spreadsheet was immediately removed from the internet. It was discovered that by the time the spreadsheet was removed at least one unknown individual had downloaded and saved the spreadsheet.

In November 2014 a person who had downloaded the page and the spreadsheet from the UK Border Agency’s website uploaded the spreadsheet onto a US website; this was later removed on 18 December 2013.

The personal data of TLT was included within the spreadsheet; in particular it included both his forename and surname, his nationality (Iranian), his date of birth and age. It also noted that “assisted return” was being pursued and stated that the removal case type was “Family with Children – Voluntary”. It further acknowledged that asylum had been claimed.

In March 2014, TLU received some communications from a family member in Iran. These communications advised that the Iranian authorities had detained another member of TLU’s family and questioned them about “you”. It was said that the authorities in Iran claimed to have documentation showing that TLT and his family had claimed asylum.

The issues on appeal
There were three issues on appeal:

  • Did the spreadsheet in question contain the private and/or confidential information?
  • Did the spreadsheet contain personal data of which TLU and TLV were the data subjects?
  • Even if the information in the spreadsheet did not contain the personal data of TLU and TLV, are they entitled to damages for the distress they have suffered under section 13 of the Data Protection Act 1998 in any event?

The first issue
This issue amounts to a common law tort in English law. At para 28 of the judgment of the Court of Appeal Gross LJ said that “this issue is short, straightforward and essentially one of fact.” Gross LJ had “no hesitation in concluding that the Home Office’s publication of the spreadsheet misused TLU’s and TLV’s private and confidential information.” [31] TLT was the lead family claimant and the detailed nature of the information concerning TLT as such meant that TLU and TLV “could readily be identified by third parties” and that they “had a reasonable expectation of privacy and confidentiality in respect of their information in the spreadsheet.” [31]

The second Issue
In terms of section 1 of the Data Protection Act 1998, personal data was defined as meaning “data which relate to a living individual who can be identified (a) from those data, or (b) from those data and other information which is in the possession of, or is likely to come into the possession of, the data controller, and includes any expression of opinion about the individual and any indication of the intentions of the data controller or any other person in respect of the individual.” The Data Protection Act 1998 was the domestic vehicle through which the United Kingdom implemented is obligations under Directive 95/46/EC (which has, of course, now been replaced by the General Data Protection Regulation, but is still relevant for the purpose of this case as that was the law in force at the time). Recital 26 of the Directive noted that the “principles of protection” should take account “of all the means likely reasonably to be used either by the controller or by any other person to identify the” data subject.

In the present case, limb (b) of the definition of personal data was met in relation to TLU and TLV. The Home Office had argued that the information contained in row 1101 of the spreadsheet (which concerned TLT) did not “relate to” TLU and TLV. This was rejected by the court with reference to the statutory language. [39]

The Home Office had also sought to rely on Durant v Financial Services Authority as a means of trying to limit the scope of personal data (and therefore its liability) in this case. However, Gross LJ held that Durant, when properly applied, “powerfully reinforces the case for TLU and TLV” [44] and that Auld LJ was simply stating “a broad, practical working assumption.” [42] There was nothing within Durant that enabled the Court to depart from the conclusions that they must reach in light of the decision by the Court of Appeal in Vidal-Hall v Google and the Supreme Court in Common Services Agency v Scottish Information Commissioner

Third Issue
In the circumstances, this issue did not arise and the court felt it best to leave resolution of it “to a case where a decision is required” on it. [48]

Comment
The appeal was therefore dismissed by Gross LJ on all three issues that were raised and McFarlane LJ and Coulson LJ simply agreed adding no further comments of their own.

This is an interesting, but not unexpected, decision from the Court of Appeal which will be binding on all lower courts in England and Wales and will be persuasive in Scotland. It is difficult to find fault with the approach taken by the Court of Appeal or the judge at first instance; indeed, this is very much the view of the Court of Appeal. It does make it clear though that it will be possible for data subjects not directly referred to within the compromised data arising out of a data breach to sue for damages in certain circumstances. The first instance case had become an important case when such situations arose and now that the Court of Appeal has confirmed the approach adopted by the first instance judge it is likely that we will see more claims of this nature being made.

The circumstances in the present case are fairly clear-cut, but not all situations where liability might arise will be as clear-cut. The GDPR is not going to have any real impact upon this position; the definition of personal data essentially adopts the same two-stage test as was to be found within section 1 of the Data Protection Act 1998. Therefore this pre-GDPR case will continue to be instructive in the post-GDPR world we now inhabit.

Alistair Sloan

If you require further information in relation any data protection or privacy law matter then please do contact Alistair Sloan on 0141 229 0880 or by E-mail. You can also follow our dedicated information law account on twitter for news and updates concerning data protection, privacy and freedom of information.

Crossroads: where data protection and freedom of information intersect

The laws relating to freedom of information and those relating to privacy and data protection often come into conflict with one another.  One issue which arises often for those who are responsible for answering freedom of information requests is whether or not to disclose personal data of third parties which is caught up within the information that has been requested.  This is an area that has been the subject of much litigation both under the Scottish and UK FOI laws; indeed, cases have gone from Scotland all the way to the UK Supreme Court (this might be because there are fewer levels of appeal to go through in Scotland and until very recently Scottish litigants did not need the permission of the Court of Session or the Supreme Court to take an appeal there).

One area which is perhaps the most contentious of all is where the personal data in question relations to civil servants.  The generally accepted position has been that in most cases the personal data of junior civil servants will be redacted while personal data relating to senior civil servants is more likley to be disclosed.  This position, however, is one that has never really had any scrutiny from the superior courts; that is until now.  On 6th April the Upper Tribunal (Administrative Appeals Chamber) made its decision in Cox v Information Commissioner and Home Office [2018] UKUT 119 (AAC).  Judge Wikeley records that to the best of his knowledge Cox was “the first occasion on which the Upper Tribunal has had to consider in any depth the issue of the principles governing the disclosure of the names of individual civil servants in response to a request under FOIA.” [32]

In this appeal the Appellant, Mr Cox, is concerned with the development of Government policy and its application in relation to migration from the Horn of Africa.  The Appellant made a request for information to the Home Office pursuant to his right of access to information within the Freedom of Information Act 2000.  His request for information sought details concerning meetings between civil servants from the Home Office and government officials from countries within the region.  In particular, the Appellant sought the dates of the meetings, names of all those who were present at the meetings and also the notes of such meetings.

There were two issues in the appeal, but this blog post only focuses on the first of those issues; that being the disclosure of the names of civil servants.  The Home Office had refused to disclose the names of three civil servants who had formed part of the UK’s delegation to Eritrea in December 2014 (they were referred to as J, L and N during the course of the proceedings before the First-Tier Tribunal).  The Information Commissioner had agreed with the Home Office and found that the Home Office had complied with the requirements of the Freedom of Information Act 2000 in withholding the names under section 40(2) of the Act.

The UK and Scottish provisions in respect of personal data are the same (although, in the Scottish Act the exemption can be found within section 38 of the Freedom of Information (Scotland) Act 2002).  Personal data of third parties is exempt under FOI law where to release the personal data would amount to a breach of the data protection principles.  When third party personal data is involved in an FOI request the sixth condition in Schedule 2 to the Data Protection Act 1998 comes into play.  This condition requires there to be a balancing exercise undertaken between the rights of the data subject and the rights of the person who is seeking disclosure of the personal data.

In South Lanarkshire Council v Scottish Information Commissioner [2013] UKSC 55 (a case which involved the disclosure of pay scales within the Council in connection with matters concerning equal pay), Lady Hale observed that the sixth condition in Schedule 2 required that three discrete questions are asked and answered:

  1. Is the data controller or the third party or parties who whom the data are disclosed pursuing a legitimate interest of interests?
  2. Is the processing involved necessary for the purpose of those interests?
  3. Is the processing unwarranted in the circumstances by reason of prejudice to the rights and freedoms or legitimate interests of the data subject?

The first hurdle for a requester to get across in seeking to have third party personal data, including the names of civil servants, disclosed under FOI laws is that they are pursuing a legitimate interest. It is clear from the authorities that there is no inherent interest in the release of civil servants’ names: “[t]here is no reason why the general transparency values underpinning FOIA should automatically create a legitimate interest in disclosure under the DPA.” [42] (see also Department of Health v Information Commissioner and Lewis [2017] EWCA Civ 374)  What needs to be assessed is “the legitimate interests of the individual requester, and not the more abstract legitimate interests of the public at large”. [43]  If the decision-maker, whether that be the public authority, commissioner or courts/tribunals, is not satisfied that there is no legitimate interest being pursued by the requester, then they do not need to go any further as the sixth condition would not apply (see the comments of Judge Jacobs giving the decision of the Upper Tribunal in Information Commissioner v (1) CF and (2) Nursing and Midwifery Council [2015] UKUT 449 (AAC) at paragraph 19 in particular).

When the personal data exemptions are in play they represent an exception to the general proposition that the FOI process is applicant blind (i.e. that the applicant doesn’t play a part in determining whether information ought to be released or not); other exceptions include, for example, the vexatious provisions and the aggregation provisions within the appropriate limit regulations.  Judge Jacobs, at paragraph 30, in IC v CF & NMC (above) said that it “is impossible to apply paragraph 6(1) without having regard to the identity of the applicant, the interest pursued by the request and the extent to which information is already potentially available to the public.”

Each case will, of course, turn on its own facts.  Many of the factors which go into determining whether third party personal data ought to be released is specific to the facts and context. However, I suggest that we can draw some clear principles from the case law to date:

  1. When determining the legitimate interests part of the test; there is no public benefit legitimate interest – reference must be had to who is making the request and why they are making the request;
  2. The balancing exercise required to be undertaken when applying condition 6 of Schedule 2 is not the same balancing exercise that is completed when undertaking the public interest balancing exercise;
  3. FOI rights do not take precedence over privacy and data protection rights;
  4. When it comes to the personal data of civil servants; there is no hard rule that the personal data (including names) of senior civil servants will always be disclosed and likewise there is no hard rule that the personal data (including names) of junior civil servants will always be redacted; it is a decision that is both fact-specific and context-specific

The decision in Cox is of course one that is not binding on the Scottish Information Commissioner, but it is binding upon the First-Tier Tribunal and the UK Information Commissioner.  It essentially approves of the way in which public authorities and both commissioners have been handling these issues to date and so we’re unlikely to see anything change as to how the tension between FOI laws and the data protection laws is resolved.

The Data Protection Bill will (when it is finally passed and eneacted) amend both the Freedom of Information Act 2000 and the Freedom of Information (Scotland) Act 2002 to reflect the General Data Protection Regulation; the provisions look a bit unwieldy, but in reality they are unlikely to change very little in terms of day-to-day practice.

Alistair Sloan

If you require advice and assistance on any aspect of freedom of information or data protection and privacy law then you can contact Alistair Sloan on 0141 229 0880; alternatively you can contact him directly be E-mail.  We have a Twitter account dedicated to information law issues , which you are welcome to follow.