Cobain v Information Commissioner & CPS

Reference: [2012] UKFTT EA 2011_0112

Court: First-tier Tribunal

Judge: David Farrer QC

Summary: FOIA appeal concerning information held by the CPS about the prosecution of Nick Griffin in 1997/98

Appearances: Aidan Eardley (Appellant) 

Instructing Solicitors: Jan Clements, Guardian News & Media Ltd

Facts

In 1998, Nick Griffin, who was shortly to become leader of the BNP, and who was elected an MEP in 2009, was prosecuted and convicted  at Harrow Crown Court for an offence of publishing material likely to stir up racial hatred, contrary to the Public Order Act 1986, s.19. In 2009 Ian Cobain, an investigative journalist with the Guardian, made a request  to the CPS under FOIA 2000 for the papers the CPS held in relation to the case. The CPS refused and the Commissioner upheld the refusal. Mr Cobain appealed and the CPS resisted the appeal relying (ultimately) on s30(1)(c) (information held for the purposes of criminal proceedings), s32 (court records) and s40(2) (personal data).

Issue

Whether the exemptions in FOIA ss 30(1)(c), s32 and/or s40(2) applied.

Held

Appeal allowed. Insofar as the information comprised Mr Griffin’s personal data, its disclosure would be fair and lawful: for the purposes of DPA 1998 Sch 2, para 6, the processing involved in disclosure would be necessary for the legitimate journalistic interests pursued by Mr Cobain and would not be unwarranted by reason of prejudice to the rights and freedoms etc of Mr Griffin; and, for the purposes of Sch 3, the processing of Mr Griffin’s sensitive personal data would be justifiable by reference to the Data Protection (Processing of Sensitive Personal Data) Order 2000, Schedule 1,  para 3. s32 had to be read down to give effect to ECHR art.10 so that it no longer applied once a reasonable time had elapsed after the exhaustion or abandonment of any appeals arising out of the proceedings in question, accordingly it could not apply here. S30(1)(c) was engaged in respect of some of the withheld material but, with a few exceptions, the public interest in withholding the material did not outweigh the public interest in its disclosure.