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Sadly, there is more data protection case-law arising from the conflict over requests for personal data made under freedom of information (FOI) legislation, than there is when there is a data protection conflict.

This state of affairs is the result of the fact the Commissioner has to publish a Decision Notice in relation to a disputed FOI request, whereas there is no similar Notice provision associated with an assessment as to whether or not a data controller is complying with, for example, a Data Protection obligation.

So when a FOI Decision Notice that relates to personal data is challenged in the Courts or Tribunals, we can all see the outcome, see how the Commissioner is thinking, and learn how the law is being interpreted and applies in practice.

A recent case involving the Freedom of Information Scotland Act 2002 (see reference at the end) illustrates this. Two Housing Associations in the Glasgow area wanted access to statistical information about the number of registered sex offenders broken down by the first four characters postcode area (e.g. G40 6xx).

The Scottish Information Commissioner refused to order the release of these details, because he viewed them to be personal data, and because of the nature of the data (registered sex offenders), the details had to be sensitive personal data. The Housing Associations challenged view this arguing that the statistical details did not identify anyone so should be released. So, the question before the Court was “are postcodes personal data”?

Clearly, the first four characters of a post code is not personal data in itself. So the question that had to be addressed by the Court was what “other information” could transform such a postcode into personal data? In this way, the parts of the definition of personal data that relate to identification of individuals could be tested.

Looking at the analysis in the judgment, one can see that the Court struggled with the answer to this question. So it came up with an ingenious solution to avoid giving an answer; it transformed the question into something that was not being asked!

The Court observed that the case had been brought by the Housing Associations because they wanted to pursue a campaign based on the premise that the distribution of sex offenders was unequal (i.e. some postcodes have more than others). So even though the Housing Associations made a commitment not to publish the details it received, this could not be guaranteed, so the basis of their action fell away. It then followed that the Court did not have to consider whether or not a post-code was personal data.

“What a cop-out!”

But now to the twist in this particular tale. The Court concluded that “It is not clear from the decision letter why the disclosure of a statistic that in a particular district the number of resident RSOs (registered sex offenders), was four or fourteen or forty would lead to the identification of the individuals in question or what other information when taken with these statistics would reasonably allow for such identification” Consequently, “we are not persuaded that... the respondent (i.e. the Commissioner) intelligibly explains his decision”.

In other words, a Decision Notice that refers to the personal data exemption in FOI, in the first instance should spell out why the statistical information is personal data. So, in the absence of a Decision Notice mechanism for data protection, this in turn means that FOI Decision Notices will become more relevant to data protection specialists! In future, a Commissioner has to specify why some information is personal data.

Originally published on Hawktalk, the blog of Amberhawk Training Ltd.

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