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McIntosh -v- (1) Information Commissioner (2) BBC EA/2014/0033

Case date: 23/10/2014
Court: First-tier Tribunal
Area/s of law: Data Protection | Freedom of Information
Barrister/s:  Jonathan Scherbel-Ball

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Background

The Appellant had made a number of requests for information under the Freedom of Information Act 2000 (“FOIA”) to the British Broadcasting Corporation (“BBC”) for information as to whether royal palaces and/or government buildings had licences for all their television sets, and whether the BBC scrutinised and checked in the same way as for other premises. The BBC had refused the request on the basis that information relating to the number of television licences (expressed as a nominal value or as a proportion of licensable places) within each of the 19 post code areas requested (“the Disputed Information”) was exempt under s. 40(2) FOIA as personal data, disclosure of which would contravene the data protection principles set out in Part 1 of Schedule 1 of the Data Protection Act 1998 (“DPA”). The BBC also relied on s.31 FOIA (information likely to prejudice the prevention or detection of crime). The Information Commissioner had upheld the BBC’s refusal on the basis of s.40(2) FOIA, and the Appellant appealed to the First-Tier Tribunal.

Outcome

The Tribunal dismissed the Appellant’s appeal, holding that the Disputed Information was personal data and that its disclosure would breach the first data protection principle. Having reached this finding, it was not necessary to go on to consider whether the information was also exempt under s.31 FOIA.

Reasoning

The data was “personal data” within the definition in s.1(1) of the DPA and s.40(7) of FOIA because the Disputed Information related to individuals who could be identified, if not from the data itself, then from the data used in conjunction with other publicly available information. In determining whether information which related to a group constituted ‘personal data’ of any individuals within that group, although the size of the group was an important factor, it was not the determining factor; other features such as the homogeneity of the group might lead to individuals within that group being identifiable. Given that the identities of individuals living at a given post code can be readily identified from public sources such as electoral rolls, that each post code requested contained a relatively small number of licensable premises, and that the post codes shared the common feature of a degree of connection with the royal family, the individuals concerned could be identified by a person motivated to do so – applying the ICO’s “motivated intruder test” set out its Code of Practice on Anonymisation.

Disclosure would breach the first data protection principle, which requires that personal data be processed fairly and lawfully and shall not be processed unless at least one of the conditions in Schedule 2 is met. The relevant condition in this case – condition 6(1) – effectively required a balancing exercise between on the one hand the “legitimate interests pursued by the data controller or by the third party or parties to whom the data are disclosed” which made the processing “necessary”, and on the other any “prejudice to the rights and freedoms or legitimate interests of the data subjects”.

In this case, the balance would be struck in favour of the data subjects. Television licence holders who obtain (or who choose not to obtain) licences in their private capacities would have a reasonable expectation of privacy in that regard, and would not expect that information to be disclosed to the world at large by the licence provider. As there was no evidence before the Tribunal that residents in palace accommodation were failing to pay for television licences, or that the BBC was failing actively to pursue them because of their links to the Monarch, there was no legitimate interest in disclosure beyond the generic interest in public accountability. Disclosure could not be said to be “necessary” for any such interest as there may be.

Even if there was a legitimate interest and disclosure was necessary for such purposes, disclosure would be an unwarranted intrusion into the data subjects’ privacy. The Disputed Information would reveal not only those who had a television set but no licence, but also those who did have licences, and those who were not required to have a licence because they did not have a television set. The media interest that may have followed disclosure, as well as the distress likely to be caused to the data subjects at having their personal data disclosed, were further reasons why disclosure would be unwarranted.

Jonathan Scherbel-Ball, instructed by the BBC Litigation Department, acted for the BBC.

The judgment is available here.

2018-04-19T13:49:19+00:00October 23rd, 2014|