November 29, 2005
Data Protection appeal refused leave
Controversial ruling on Data Protection Act will not be reviewed by Lords
The House of Lords has refused leave to appeal out of time in Durant v Financial Services Authority. After an oral hearing, the Appellate Committee (Lords Bingham, Carswell and Brown) ruled there was no prospect of the Court of Appeal’s 2003 judgment being overturned.
The Court of Appeal upheld the refusal of the FSA to provide Mr Durant with access to data which he sought in connection with his long running dispute with Barclays Bank. Although the FSA held hundreds of documents concerning his complaint, the Court of Appeal ruled that the mere inclusion of a person’s name in a document does not render the information in that document ‘personal data’ which the data subject was entitled to access. ‘Personal data’ was held to be confined to information which was sufficiently biographical or had the data subject as its focus.
The judgment also decided that manual paper-based filing systems were only subject to the legislation to the extent that the information they contained was arranged in a highly structured way in which specific information could be readily pinpointed. A subsequent change in the law has brought unstructered records within the scope of the Act, but only if they are held by public authorities.
The Court of Appeal further held that the court has a ‘general and untrammelled’ discretion not to order a data controller to comply with its duty to provide access and may refuse to do so where, for example, it saw no practical value to the data subject in the information being sought.
The Court of Appeal’s decision has been criticised on several counts. The Information Commissioner revised his guidance to reflect the more restrictive interpretation of these provisions. The European Commission began the process which may eventually lead to infraction proceedings being brought against the UK government for failure to implement the Directive (95/46/EC) to which the DPA was designed to give effect. A Reasoned Opinion from the Commission is expected before the end of the year.
Mr Durant has also lodged a petition at the European Court of Human Rights alleging violation of his rights under Articles 6 and 8 of the Convention.