Oh dear. Lost again. The Tribunal has decided not to allow UK citizens to know why the Data Protection Act 1998 is defective, even though we are all discussing its replacement. The Tribunal decided at the time of the request, that the exemptions claimed by the MoJ applied.
However, the judgment ends with the following statements; do you think that this is an invitation to do the whole request again? If so, can you post a comment (without expletives) on this blog (see comments link at bottom).
This Tribunal however has to consider the facts and circumstances of this particular case. Infraction proceedings started in 2004. They have been largely resolved. It appears the outstanding issues have been parked and that the Regulations will replace the DPA in the foreseeable future. Draft Regulations are now out for consultation. The public interest in transparency and openness in knowing the outstanding issues could contribute considerably to understanding whether and how the draft Regulations deal with them and help provide meaningful public responses to the consultation on such an important area of human rights.
However that is the position now and was not necessarily the position at the time of the request which was some two years earlier. At that time the negotiations of the Regulations had at best just started and there was no public consultation. However there was a need for confidentiality as explained above. Therefore we find the need for transparency at the time of the request cannot be given significant weight.
We find having weighed the public interest factors to and for disclosure that at the time of the request the balance narrowly favours maintaining the exemption. If the request was made today we may have come to another conclusion but we are bound by the law to consider the public interest test as at the time of the request.
I will ponder the judgment more carefully and come to a decision after a well earned holiday.
But I thought you should know the bad news; it is a major disappointment, I have to say.
References
The Tribunal Decision ( EA/2012/0110 Ministry of Justice v the Information Commissioner & Dr C Pounder) is on http://www.informationtribunal.gov.uk/Public/search.aspx
Relevant Blogs
European-Commission-explains-why-UK’s-Data-Protection-Act-is-deficient.html (Feb 2011)
http://amberhawk.typepad.com/amberhawk/2011/02/european-commission-explains-why-UKS-data-protection-act-is-deficient.html
Data-Protection-Act-fails-to-implement-50%-of-the-Directive.html (Nov 2009)
http://amberhawk.typepad.com/amberhawk/2009/11/data-protection-act-fails-to-implement-50-of-the-directive.html
Question-answered-why-does-the-European-Commission-think-the-UK’s-Data-Protection-Act-is-a-deficient-implementation-of.html (Feb 2013)
http://amberhawk.typepad.com/amberhawk/2013/02/question-answered-why-does-the-european-commission-think-the-uks-data-protection-act-is-a-deficient-implementation-of.html
I would definately have another go. After all it would be much harder to withold as the public interest would be stronger.
Posted by: Amanda Darge | 23/07/2013 at 11:53 AM
Sir, renew or reissue your request. They have declared that they must, at least, look at it with fresh eyes.
Posted by: Tim Trent | 23/07/2013 at 12:14 PM
Disappointing Tribunal decision, but the ruling almost seems to invite a new request and under which it seems to indicate the Tribunal would favour disclosure. Indeed, a new request would be all the more powerful, because there has to be a substantially increased 'public interest' argument (i.e. particularly as it looks as if the proposed Regulation will dilute into a Directive) in understanding whether a Directive would be fully implemented in any replacement for DPA 1998.
Derek A Wynne
Posted by: Derek A Wynne | 23/07/2013 at 02:22 PM
"If the request was made today we may have come to another conclusion but we are bound by the law to consider the public interest test as at the time of the request."
Unless you have a time machine, this strikes me as a (pineappling?) waste of public funds. Stupidity of 'precedent' that requires the time of the request to be taken into consideration rather the prevailing "conditions" at the time of response - which, as already pointed out, have changed. Given the considerable burden that the new Regulations are likely to impose on organisations (dedicated DPO, increased reporting, etc) I would re-issue the request. Thank you for your efforts/energy so far.
Posted by: S Jones | 23/07/2013 at 03:38 PM
Reading between the lines as you teach so well, it does strike me as "we have been told by the MOJ et al to answer you thus - we don't like being told what to do, so if you were to put it in again we can have another go at them"
or maybe I'm just becoming cynical. Good Luck!
Posted by: Richard Talbot | 24/07/2013 at 03:18 PM
I would read that as an invitation, Chris, and indeed suggest you quote it in your request.
SH
Posted by: SH | 25/07/2013 at 11:45 AM
From my experience the wording of the judgement is DEFINITELY an invitation to make the request again. There is a very deliberate teasing out of the balance of interests between then and now - and I think you should quote those particular statements in your new request!
SMC
Posted by: SMC | 25/07/2013 at 11:47 AM
Almost an invitation to make a fresh request...have you got the energy?
BJ
Posted by: BJ | 25/07/2013 at 11:48 AM
Clearly the tribunal is not one to labour a point, but to refer to "at the time of the request" a total of four times in three paragraphs suggests a slight niggle of hands being tied....
Posted by: Rob | 26/07/2013 at 01:45 PM
Chris - I wholeheartedly agree with the comments above - this is a clear flag waving to you by the Tribunal to "bring it on again!"
It would therefore be such a disappointment not to accept their kind invitation!You clearly have everone's support - if you have the time and energy, go for it!
Posted by: A Holyoake | 31/07/2013 at 08:53 AM