The ruling means that the Commissioner can challenge a
minister's judgment on whether the release of information would
jeopardise national security.
The High Court has backed the Information Tribunal's quashing of
a certificate from former Home Secretary David Blunkett ordering
that a batch of information be kept secret. However, another
certificate can be signed by current Home Secretary John Reid. That
certificate could bar the Commissioner from viewing the
information, but would only relate to the specifics of a single
case.
An individual had requested that the Home Office provide copies
of all information held on him, a request allowed by the Data
Protection Act. The Home Office refused on national security
grounds and the Information Commissioner began acting for the
anonymous person behind the request.
The Home Office continued to refuse to release information or
even to confirm or deny its existence. Eventually the Home
Secretary signed a special certificate which the Act says can act
as proof that the release of withheld data would be a threat to
national security.
The Commissioner wanted to view the information in order to make
a judgment on whether it was covered by the national security
exemption in the Act and argued that his office had the right to
see that information.
His office lodged an appeal against the certificate to the
National Security Appeals Panel of the Information Tribunal.
The Home Office argued that it did not even want to release
information for assessment to the Commissioner. It said that its
certificate related to the data subject and that it did not affect
the Commissioner, who therefore could not appeal.
The Tribunal ruled that in signing the certificate the Home
Secretary had not made that argument, and that it should be
quashed, but said that the Home Secretary could sign a new
certificate specifically related to the Commissioner, which the
Commissioner could then appeal.
The High Court has backed the Tribunal, quashed the certificate
and said that the Commissioner had every right to appeal the
certificate.
"Mr Supperstone, on behalf of the Commissioner … submits that
the functions of the Commissioner set out in section 51 must
include the power to challenge the say so of a Minister as to
whether or not material is exempt under section 28 in order to give
effect to domestic law," wrote Lord Justice Latham in his High
Court ruling. "I have unhesitatingly come to the conclusion that
the Tribunal and Mr Supperstone are right."
05/12/2006 Editor's note: This story originally
referred to the subject access request being made under the Freedom
of Information Act. It should have referred to the Data Protection
Act. It has been corrected today.
