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Neutral Citation Number:	2015 UKUT 471 AAC
Reported Number:
File Number:	GIA 702 2014
Appellant:	Information Commissioner
Respondent:	Colenso-Dunne
Judge/Commissioner:	Judge N J Wikeley
Date Of Decision:	26/08/2015
Date Added:	28/08/2015
Main Category:	Information rights
Main Subcategory:	Freedom of information - public interest test
Secondary Category:	Information rights
Secondary Subcategory:	Data protection
Notes:	Reported as [2016] AACR 9. Freedom of information – public interest test – whether right to publish names of journalists involved in Operation Motorman investigation following Leveson inquiry Data protection – section 2(g) and Schedule 2 Data Protection Act 1998 – “sensitive personal data” – balancing exercise In 2003 the Information Commissioner’s Office (the ICO), during an investigation into the illegal trade in personal information, seized from a private investigator documents containing the names of journalists who had employed him. Mr Colenso-Dunne made a Freedom of Information Act (FOIA) request for detailed information about the journalists, including their names, which the ICO refused on the basis that there was sufficient connection with criminal activity to bring the names within the meaning of sensitive personal data under the Data Protection Act 1998 (DPA). As the statutory regulator of public authorities under FOIA the Information Commissioner (IC) considered Mr Colenso-Dunne’s subsequent complaint against his office’s response and rejected it. The First-tier Tribunal (F-tT) upheld Mr Colenso-Dunne’s appeal against that decision. After analysing the documents it decided that the disclosure of some of the names would not breach the data protection principles in Schedule 1 to the DPA and that section 59(1) of the DPA did not apply, as disclosure could be “made with lawful authority”. It filtered the data within the documents and produced a reduced list of those names where there was a doubt about the legality of the transaction (but not an allegation of criminality). It decided that public interest outweighed the journalists’ privacy rights and that the reduced list should be disclosed to Mr Colenso-Dunne. The IC argued in his submission to the Upper Tribunal (UT) that the F-tT had erred in law in deciding that the reduced list did not contain sensitive personal data and that the proper application of the balancing of interests test should have favoured non-disclosure of the journalists’ names. Held, disallowing the appeal, that: 1. whether the disputed information was “sensitive personal data” had to be answered in the light of the immediate context of the information in question. The F-tT had been entitled to arrive at the conclusion that the information in the reduced list was not sensitive personal data. The fact that some people might misconstrue the fact that a journalist’s name was in the material seized from the investigator as an allegation that he or she had committed an offence did not convert personal data into sensitive personal data. The F-tT had directed itself properly on the relevant law and was entitled to conclude on the facts that the requested information was not sensitive personal data (paragraphs 47 to 48); 2. the F-tT had not ordered the disclosure of all the names that formed the subject matter of the respondent's request. It had sifted out those journalists’ names where the enquiry was plainly legitimate or the information was incomplete. The reduced list was thus a sub-set of the original list, limited to those instances where there was at least a question mark over the legality of the transaction (but not an allegation of criminality as such). In so doing the Tribunal had appropriate regard to the privacy rights of those journalists who, on the face of the record, had no questions to answer. The F-tT had not erred in its approach to balancing the interests of the parties concerned (paragraphs 66 to 67); 3. the F-tT was entitled to conclude that the statutory prohibition under section 59(1) of the DPA did not apply because, by virtue of section 59(2)(e), disclosure of the requested names would be “made with lawful authority” (and so the bar under section 44 of FOIA was not relevant) (paragraph 70).
Decision(s) to Download:	[2016] AACR 9ws.doc