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Dunn v Durham County Council, Court of Appeal, 13 December 2012

19 December 2012
The issues

Data Protection Act (DPA) 1998 – confidentiality – redaction – Disclosure – public interest immunity

The facts

The claimant was a resident at Aycliffe Young People’s Centre in Newton Aycliffe between 1980 and 1984. The centre was the responsibility of Durham County Council. In December 2007, solicitors acting for the claimant wrote to the council intimating a claim for damages in respect of assaults allegedly committed by staff at the centre when he was there. The letter included a request for disclosure. Some documents were disclosed in redacted form. In March 2011 the claimant issued proceedings. An issue arose as to disclosure which by way of second appeal came before the court of Appeal.

Before action, amongst the documents sought by the claimant’s solicitors, was the personal file of their client, in respect of which they relied on the DPA 1998, and personnel files of members of staff including the alleged abusers. The defendant’s solicitors agreed to disclose the claimant’s personal records in redacted form. With regard to the personnel files, disclosure was refused on the basis that the claimant required an order of the court and that the defendant’s solicitors would seek for the order to provide for costs to be paid for by the claimant and for the files to be disclosed in redacted form.

At this stage both parties were focusing upon the DPA. After issue, standard directions were issued by the court allocating the claim to the multi-track and providing for standard disclosure by list. Again the defendant refused to disclose the personnel files of three members of staff on the grounds that they could not be disclosed without consent of the individuals or an Order of the Court. The defendant’s list was defective. Some documents in respect of which no objection had been taken in the list had already been disclosed but in redacted form. They should have appeared in Part 2 of the list because of the redaction. Both parties approached disclosure on the basis that the governing regime was the DPA. Further disclosure of the previously disclosed but redacted documents was ordered on the basis that the only redaction should relate to the name and address of the claimant’s parents and siblings and the names of other children resident at the centre. This disclosure extended to the members of staff at the centre in respect of which objection had previously been taken by the defendant to the personnel files of members of staff.

Both parties were given leave to appeal. The claimant’s appeal was allowed by the judge to the extent that the order for redaction was withdrawn. The matter came before the Court of Appeal.

The decision

It was unfortunate that the dispute had been prolonged and distorted by references to the DPA. There was no doubt that a claimant could before, during, or without regard to legal proceedings make an access request pursuant to s7. There were attractions to such a route from the claimant’s point of view. It was less expensive than application to the court for disclosure and access might result in sufficient disclosure to satisfy the prospective claimant’s immediate needs. However it was limited.

In most cases the needs of a fair trial would demand that there be no restrictions on disclosure and, if restrictions were needed they had to go no further than was strictly necessary

The duty was not expressed in terms of disclosure of documents but referred to communication of ‘information’ in ‘an intelligible form’. Although this might be achieved by disclosure of copies of original documents, possibly redacted pursuant to s7(5), it seemed to the Court of Appeal that it might also be achievable without going that far. Secondly, if the data subject was dissatisfied the remedy was pursuant to s7 which was time consuming and expensive. In any event that would also engage the CPR at that stage (Lord Justice Maurice Kay). For the District Judge to approach the disclosure issue as if governed by the DPA was erroneous.

The judge had made this clear on hearing the appeal from the District Judge. He had approached the issue as being one pursuant to CPR 31.3 (b) – the right or duty to withhold inspection on the part of a party. However, he had also referred to data protection. It was misleading to refer to a duty to protect data as if it were a category of exemption from disclosure. The true position was that CPR 31 enabled and required the court to excuse disclosure or inspection on public interest grounds.

The requisite balancing exercise was between, on the one hand a parties right to a fair trial at common law and pursuant to Article 6 of the European Conventional and Human Rights and Fundamental Freedoms and, on the other hand, the rights of his opponent or a non-party to privilege or confidentiality which might most conveniently be protected under Article 8. It was a distraction to start with the DPA. What was appropriate meant appropriate in the context of the particular litigation. It was no longer the case in the context of social service records that a blanket immunity applied.

Although the law had not reached its final development (some social work records might still be covered by public interest immunity, such as documents recording the identity of informers – see Re J (A Child: Disclosure) [2012]), general statements that social work records were covered by public interest immunity should now be consigned to history. The Court of Appeal had twice approved the test in RB (disclosure to other parties) [2001] in which Munby J (as he then was) had said that it remained the case that disclosure of documents involving, in that case, psychiatric reports relating to a mother, her husband and children, required the most anxious, rigorous and vigilant scrutiny. It was for the parties seeking to withhold documents to justify their reasoning and the burden on them was a heavy one. Only if the case for non-disclosure was compelling would an order be made. The test was one of strict necessity. In most cases the needs of a fair trial would demand that there be no restrictions on disclosure and, if restrictions were needed they had to go no further than was strictly necessary. The notes dealing with public interest, immunity and the White Book were so succinct as to be misleading.

The appropriate balancing exercise involved five issues:

  1. Obligations in relation to disclosure and inspection arose only when the relevant test was satisfied. Relevance could include trail of enquiry issues which were not merely fishing expeditions. This was a matter of fact, degree and proportionality.
  2. If the relevant test was satisfied, it was for the party in possession of the document or the party which would be adversely affected by its disclosure or inspection to assert exemption from disclosure.
  3. Any dispute should be determined by means of a balancing exercise having regard to the fair trial rights of the party seeking disclosure and the privacy or confidentiality rights of the other party or any party whose rights might require protection. It would generally involve a consideration of competing ECHR rights.
  4. The denial of disclosure was limited to circumstances where such denial was strictly necessary.
  5. In some cases the balance might need to be struck by a limited order respecting a protected interest by such things as redaction, confidentiality rings, anonymity in the proceedings or other such order and again the restriction had to satisfy the test of strict necessity.

In respect of steps taken to protect non parties’ interest at trial, such issues should be resolved at the final case management conference. In this case, the court might assist by including a provision in the order that the identities of non-parties are not disclosed beyond the parties and their legal advisers and that the information to be disclosed be used solely for the purpose of those proceedings until further Order of the County Court.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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