Out-Law News | 26 Sep 2011 | 3:03 pm | 4 min. read
The Tribunal, formerly the Information Tribunal, said that the information being sought under freedom of information (FOI) laws amounted to sensitive personal data and should not be disclosed. It rejected the claim that the information should still have been disclosed through special provisions in UK data protection laws.
Colleen Smith had requested that Devon and Cornwall Constabulary release information about the number of "teaching staff" in schools and colleges in Torbay, Teignbridge and South Hams who had been investigated, cautioned and charged under Section 16 of the Sexual Offences Act (SOA).
Under Section 16 of the Act a person aged 18 or over commits an offence if they abuse a position of trust by intentionally and sexually touching a child.
Devon and Cornwall Constabulary refused to disclose the information claiming that the information was exempt under FOI laws. Smith complained to the ICO, which is responsible for ensuring compliance with FOI and data protection laws.
The ICO ruled that the police should give out the data for Teignbridge and South Hams. No personal data was contained in that information as there were no instances where police had investigated, cautioned or charged teachers under Section 16 of the SOA, the ICO had said. However, information relating to Torbay did contain personal data and should not be disclosed, the ICO said.
The Freedom of Information Act (FOIA) and the Freedom of Information (Scotland) Act came into full force on 1 January 2005, giving individuals the right for the first time to see information held by Government departments and public bodies.
An exemption in FOI laws allows public authorities to refuse to disclose information they hold when the information amounts to personal data.
Smith argued that the information she had asked for consisted of anonymised statistics that were not personal data, but Devon and Cornwall Constabulary and the ICO disagreed, arguing that the information could be used alongside existing reports in the public domain to identify individuals.
The Tribunal ruled that the anonymised sexual offences data, allied to information already available to the public, amounted to personal data that is exempt from disclosure under FOI and data protection laws.
"Section 16 of the Sexual Offences Act 2003, abuse of a position of trust, is an offence for which there are relatively rare convictions," the Tribunal said in its ruling. "As such, it is a matter of common knowledge that the disputed information will contain low figures."
"The Tribunal has considered both the disputed information and the 'other information' and is satisfied that a living individual can thereby be identified and that therefore the disputed information is 'personal data' to which the Data Protection Act applies," the ruling said.
"The Tribunal took into account that the Torbay schools area covered 42 local authority schools and a number of private institutions but considered that, given the low number of section 16 convictions, this should be viewed as a relatively small geographic area," the ruling said. "The Tribunal was satisfied that information existed in the public domain which made identification possible. The Tribunal was further satisfied that the disputed information was sensitive personal data ... being clearly information as to a data subject’s sexual life (this being a matter relating to sexual offences) and the commission of offences."
Smith had argued that even if the ICO had been right to find the information she was seeking was sensitive personal data the watchdog had still been wrong to rule that it was "unfair" or in breach of a principle of UK data protection laws to do so.
Under the Data Protection Act organisations must process personal data fairly and lawfully. Sensitive personal data, including information about someone's sexual life or "the commission or alleged commission by him of any offence", should not be processed unless under strict conditions. However, a Data Protection (Processing of Sensitive Personal Data) Order does specify conditions in which organisations can legally disclose sensitive personal data.
Under the Order sensitive personal data can be disclosed if it is in the "substantial public interest" to do so, and as long as the information "is in connection with the commission by any person of any unlawful act (whether alleged or established)", or connected to a number of other acts. The information must also be for a "special purpose", which includes for journalistic, artistic or literary purposes. Finally, the organisation must also consider that the data may be published so should "reasonably believe" that publication would be in the public interest.
The Tribunal said that, whilst there was "public interest in disclosure" of the data on sexual offences, there was not the "substantial public interest" required for the information to be disclosed.
"The evidence falling within the relevant period, did not substantiate a widespread concern as to the subject matters of the letter of request, a prevalence of sex offender activity in the schools in the Torbay area or of police incompetence or neglect in following this up," the Tribunal ruling said.
"It was not enough, in the Tribunal’s view, that sexual offences by teachers or others in positions of trust was a matter of keen interest to the public. This, on its own, did not make disclosure 'in the substantial public interest'," it said.
The Tribunal said it had weighted the "wholly understandable concerns" of the public around child sex offences against "the detrimental effects that disclosure could have," citing the chances of "vigilantism" occurring which may cause individuals to "disappear". The Tribunal also said that the public's "need for reassurance was not as necessary or compelling" as Smith had argued because the information she wanted to be released was already contained as part of other sex offender statistics that had already been published.
"The Tribunal felt overall, although it did consider this to be a finely balanced judgement, that the outstanding answers to the letter of request would be more a matter 'of interest' to the public than disclosure 'in the substantial public interest'," the ruling said.