The Appeal will also clarify the circumstances when a Judge is
entitled to use discretion not to order the disclosure of
personal data to the individual concerned when the right of access
to personal data is exercised, and there is no applicable
exemption which the organisation holding the personal file has
applied, yet the organisation refuses to provide access.
The background to the case concerns a Mr M. J. Durant who wanted
access to personal information held by the Financial Services
Authority (FSA) in relation to an investigation which involved
Barclays Bank and in which Mr. Durant claimed to be a victim of
fraud. Mr. Durant wanted to access the FSA files to see whether
they contain information concerning the alleged fraud. The FSA
argued that the information, although personal, was not subject to
the right of access.
The Judge at the lower Court agreed, and refused Mr Durant
access on the grounds that the files, although containing personal
details about Mr Durant, were not personal data caught be the Act.
For example, the Judge said that:
"It is not a question of whether the (personal) information
could be obtained or even whether the information could be obtained
easily. The question that I must pose is whether it (the file) is
structured in such a way that specific information relating to a
particular individual is readily accessible".
Additionally, the Judge claimed that even if the personal
information were personal data, he had discretion not to order
disclosure to Mr. Durant. He said that if this were the case:
"I would still not have exercised my discretion in favour of
making an order for compliance, because ... I cannot see that the
information could be of any practical value to the appellant and
that ....the purpose of the legislation it seems to me is to ensure
that records of an inaccurate nature are not kept about an
individual".
Dr Chris Pounder of Masons, the law firm behind OUT-LAW.COM and
Editor of Data Protection & Privacy Practice said:
"There is a lot of confusion as to when manual files are subject
to data protection legislation, and the Court of Appeal will be
invited to clarify the position - this will be helpful for most
organisations as many are still dependent on manual files to store
personal details and correspondence which concern services
delivered to a particular individual".
Dr. Pounder continued:
"In addition, the Court of Appeal is in a position to define the
discretion of the courts not to enforce the right of access. At the
lower Court the Judge interpreted the discretion very widely, and
many would disagree with the Judge's conclusion. For example, an
organisation might hold excessive personal data which were wholly
accurate. In such a case, a claim that the purpose of the
legislation is to ensure that records are inaccurate or not seems
to be wide of the mark".
The FSA is a public authority as defined by the Freedom of
Information Act 2001. As such, it will have to grant access to
unstructured personal information in manual files in early
2005.
To find out more about Masons' publication, Data Protection
& Privacy Practice and download a free sample copy, see our
Data Protection, Freedom of Information and Human Rights Acts
Services.
Footnote: Dr Chris Pounder was a consultant with Pinsent Masons until September 2008. He now runs a new training business, Amberhawk.
