Journalist has no right to ASBO names, says Information Tribunal

The Information Tribunal has overturned a ruling by the Information Commissioner's Office (ICO) that the Borough of Camden should provide a list of all ASBO recipients. The Tribunal said that negative publicity long after the award outweighed any journalistic benefit to be had by disclosure.

"Publicity long after the making of the order and without regard to the effect of the order and its management on the subject's subsequent behaviour is quite different from identification and denunciation when or shortly after the order is made," said Information Tribunal deputy chairman David Farrer.

The Tribunal said that though names were read in court, the publishing at a later date of the name would be unfair because it did not take account of the fact that a person's behaviour could have significantly improved in the intervening time.

"It is easy to see that … [publicity] may be seen by the subject as an unjustified humiliation which takes no account of the improvements in his behaviour which have followed the making of the order. Such a reaction would be understandable where real progress has been made and its consequences could be damaging for the subject and the future course of the ASBO," said Farrer.

The original request was made by Guardian journalist David Leigh, who wanted to study the incidence of individuals being the subject of multiple ASBOs. Camden gave him an edited database with names and identifying information blacked out.

Leigh complained to the ICO, which ruled that names should be given except in certain cases. Exceptions included names relating to ASBOs which had expired.

Camden appealed to the Information Tribunal, which found that the ICO had erred in ordering publication. It said that the benefit to be gained by publication of names was likely to be outweighed by the damage done to ASBO recipients.

"The very limited additional value to the research provided by the identification of the subjects would be substantially outweighed by the damage that would probably be done in some cases by belated publicity," said Farrer. "Such damage would amount to prejudice to their legitimate interests and possibly their rights."

It said that such an identification would be unfair. The first principle of the Data Protection Act is that data should be treated fairly, so the Tribunal ruled that to publish names would be in contravention of the Act.

The case was a difficult one because it involved two laws which are contradictory in impulse, the Freedom of Information (FOI) Act, which promotes access to information, and the Data Protection Act (DPA), which promotes privacy, and therefore restriction of access to information.

That complexity made the question difficult, said Farrer. "At first blush, the public forum in which an ASBO is made and the related and expected publicity are powerful arguments against Camden's refusal to identify individuals who are currently subject to such orders," he said. "However, such an instinctive response ignores both the safeguards on disclosure imposed by the data protection principles and an important factor in the ASBO regime …namely the management of the subject's conduct over a considerable period of time."