The complexity of interface between Data Protection (DP) and Freedom of Information (FOI) Acts never ceases to amaze; the Commissioner’s Decision Notice in relation to Lord Ashcroft has just added another bizarre twist.
As is well known Lord Ashcroft is a large contributor to Conservative Party coffers and is at the centre of the dispute about political funding. In October 2007, for example, he was accused of funding local Conservative constituency organisations in key Labour marginals. Lord Ashcroft is also a part-time ex-pat and manages several exotic financial instruments from Belize, a Caribbean paradise that doubles as a tax-haven.
When he was offered a Peerage (in controversial circumstances), Lord Ashcroft gave an undertaking to make the UK his permanent residence (a code for “pay UK taxes”). Unfortunately, years after his ennoblement, his web-site still stated that his home was in Belize; hence the inevitable FOI request for a copy of that undertaking (from Labour MP, Gordon Prentice – but as everybody knows, FOI requests are applicant blind).
Whenever I deliver FOI training courses (places still available), I used to say: “don’t worry about the Second Condition in section 40(4) of the FOI/DP interface because it is easy to understand. What it essentially says is that if the data subject cannot gain access to his own personal data because there is an exemption from the right of access under the DPA, then someone else can’t gain access to the same personal data under FOI”.
“It is plain daft”, I used to confidently continue, “to allow anybody gain access to a data subject’s personal data and at the same time exempt the data subject from access”. The provision is mainly there for consistency “so that nothing idiotic can happen”.
Ah well – time to eat a huge portion of humble pie; the Commissioner has just done what I said was “plain daft” or “idiotic”. He has decided that even though Lord Ashcroft could have been refused access to the personal data on a subject access request, it is in the public interest that his personal data are revealed to a FOI requestor – in effect published to the world.
The Decision Notice clearly states that the ICO is satisfied that Lord Ashcroft’s undertaking is personal data, and that the data are exempt under the DPA because they are processed for the purpose of “conferring by the Crown of any honour”. However, as section 40(4) is not an absolute exemption, the Public Interest Test, once applied, falls in favour of disclosure (see the Decision Notice for details) of the personal data, even though Lord Ashcroft could be refused access.
The Cabinet Office has 35 days to work out what to do, so the next question is whether the Cabinet Office will appeal to the First–tier Tribunal (Information Rights)? Well another 35 days gets us to mid March with an expected General Election within a few weeks. So, if the information is damaging to the Tories, what do you think fair-minded Ministers will decide?
Reference: Decision Notice FS50197952, issued 28 January 2010