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."
