Full case report
Guardian News & Media Ltd v Information Commissioner
Court Information Tribunal
Judge Chairman David Marks QC
Date of Judgment 10 Jun 2009
Freedom of Information Act 2000 – Privacy – Data Protection Act 1998 – Disciplinary action – Judges – Publication – Public interest – Administration of justice – Constitutional Reform Act 2005 – Reasonable expectation of privacy
In July 2005, a Guardian journalist made a request under the Freedom of Information Act 2000 (FOIA) for details of disciplinary action taken against judges by the Lord Chancellor since August 1998. The DCA, and later the MoJ (which tooks over the DCA’s functions), contended that the “routine” disclosure of disciplined judges or holders of judicial office, together with disclosure of the specific nature of the complaint would “damage public confidence in the judiciary in a way which would prejudice the effective conduct of public affairs”. The MoJ further contended that (i) revelation of personal identities of judges would constitute “personal data” and disclosure would breach the first principle of the Data Protection Act 1998; and (ii) that disclosure would also amount to an unjustified interference with the judges’ private lives. The Information Commissioner upheld the MoJ’s decision to withhold the requested information. The Guardian appealed.
Whether the exemptions under s.40 (personal data) and s.31 (administration of justice) of the FOIA applied, and if so, whether they exempted disclosure of the requested information to the media.
Dismissing the appeal:
(1) Disclosure of the requested information was in breach of the first data protection principle on the grounds of unfairness. The Tribunal took into account the individual data subjects’ reasonable expectations of what would happen to the information, whether disclosure would cause unnecessary or unjustified damage to the individuals and the legitimate interests of the public in seeing the withheld information. The Tribunal held that judges had a reasonable expectation of privacy which may be breached by disclosure of the information, especially as complaints leading to disciplinary action often involved personal not professional misconduct.
(2) In relation to s.31, it was held that disclosure would also prejudice the administration of justice as it would risk undermining a judge’s authority while carrying out his or her judicial functions. The public interest in withholding the information sought outweighed the public interest in disclosure.
In considering whether information relating to the misbehaviour of individual judges ought to be disclosed, the Tribunal made a distinction between a judge’s conduct inside of the courtroom and conduct outside. It held that “greater sensitivity” would attach to complaints stemming from misbehaviour outside of the courtroom particularly where such behaviour was not directly related to the exercise of the judicial function. Publication of such material may damage the public confidence in the standing of the judiciary and therefore careful consideration would be required in each case as to whether the activity warranted any publicity. The Tribunal considered this to be the “overall critical distinction” which lay at the heart of the appeal.
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