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United Kingdom Information Tribunal including the National Security Appeals Panel
You are here: BAILII >> Databases >> United Kingdom Information Tribunal including the National Security Appeals Panel >> Camden v Information Commissioner [2007] UKIT EA_2007_0021 (19 December 2007)
URL: http://www.bailii.org/uk/cases/UKIT/2007/EA_2007_0021.html
Cite as: [2007] UKIT EA_2007_21, [2007] UKIT EA_2007_0021

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Information Tribunal
Appeal Number: EA/2007/0021
Freedom of Information Act 2000 (FOIA)
Heard at Procession House, London 21st November, 2007
Decision Promulgated 19th December, 2007
BEFORE
INFORMATION TRIBUNAL DEPUTY CHAIRMAN
David Farrer Q.C.
and
LAY MEMBERS
Roger Creedon
and
Paul Taylor
Between
LONDON BOROUGH OF CAMDEN
Appellant
and
INFORMATION COMMISSIONER
Respondent
Representation:
For the Appellant: Anya Proops
For the Commissioner: Akhlaq Choudhury
1
Unless the contrary is expressly indicated, references to sections of a statute are to The Freedom of
Information Act, 2000 (“FOIA”). The Data Protection Act, 1998 is identified as “DPA”.
Decision
The Appeal is allowed. The Appellant is not required to provide any further information to the
complainant.
Reasons for Decision
The Request
1    On 11th. May, 2006, David Leigh, a journalist working for “The Guardian” newspaper,
requested from the Appellant (“Camden”) a copy of a database which he believed Camden to
possess, containing details of all Anti - social Behaviour Orders (“ASBOs”) issued in the
borough of Camden, whether current or expired. Those details were expected to include
names, addresses and the terms and nature of the orders made. The request was carefully
and courteously framed and supported by reasoning meeting possible objections, which, to
some extent, foreshadowed arguments addressed to this Tribunal. Though the motive of the
requester is, of course, generally immaterial, it is fair to observe that Mr. Leigh `s intention
was to pursue legitimate research into the effectiveness of a comparatively new tool in the
penal toolbox.
2    Camden responded by letter of 26th. May, 2006, attaching an edited version of the database
that it held. It contained a great deal of information but expressly excluded the names of the
individuals concerned and information (such as addresses, which were not on the database)
which might serve to identify them. It fully complied with the requirements of s.17(1) of FOIA,
identifying what Camden regarded as applicable exemptions under sections 31 and 40 and
setting out its reasons for reliance upon them. To the extent that Camden `s response
excluded certain of the requested information, it amounted plainly to a refusal for the
purposes of s.17
3    On 1st. June, 2006, Mr. Leigh duly sought a review of this refusal. He countered arguments
based on s.40 and asserted that s.31 was not engaged at all. The Respondent (“the I.C.”) did
2
not consider that Camden had shown that s.31 was engaged. We have not been asked to
review his decision and need say no more about it. This appeal turns exclusively on the
application of s.40.
4    Mr. Leigh supported his request for a review by reference to a number of examples of press
releases by Camden, identifying recent recipients of ASBOs in the borough and specifying
the conduct involved.
5    On 20th. June, 2006, Camden confirmed its decision to withhold names or other means of
identification. Mr. Leigh complained immediately to the I.C.
6    The I.C `s investigation spanned several months and included an inspection of Camden `s
ASBO database. On 5th. January, 2007, Mr. Brian Payne, one of the I.C. `s senior complaints
officers sent an e mail to Mr. Leigh, pointing out that his request embraced spent as well as
current ASBOs, expressing the I.C. `s view that disclosure of that information would breach
the first data protection principle (which is considered later in this Decision) and inquiring
whether the substitution of identifiers for names would be acceptable. Mr. Leigh, in reply,
gave examples of cases in which, he said, the public interest could not be served without
identification but, more fundamentally, asserted a public entitlement to such information,
where an individual had faced open justice in a public court.
The Decision Notice
7 The I.C., in a Decision Notice dated 13th. February, 2007, upheld the complaint, subject to
certain limitations as to the information to be provided. He excluded from his requirement
cases in which :
•    The court had imposed reporting restrictions ;
•    The ASBO did not proceed beyond the interim stage ;
3
•    Camden was satisfied that an ASBO subject was especially vulnerable to the
consequences of disclosure or
•    The ASBO had expired.or
•    The names were those of victims, witnesses or other third parties.
8    He concluded that, save in those cases, there would be no breach of the first or second data
protection principles, as asserted by Camden. He adjudged that processing of such data by
providing it to Mr. Leigh would be fair and lawful but did not further specify which of the
particular tests of fairness it satisfied. Later submissions rectified any failure involved.
ASBOs and the evidence concerning their operation
9    ASBOs were introduced by s.1 of the Crime and Disorder Act, 1998 which, so far as material,
provides (as amended):
(1) An application for an order under this section may be made by a relevant authority if it
appears to the authority that the following conditions are fulfilled with respect to any person aged
10 or over, namely—
(a) that the person has acted, since the commencement date, in an anti-social manner,
that is to say, in a manner that caused or was likely to cause harassment, alarm or
distress to one or more persons not of the same household as himself; and
(b) that such an order is necessary to protect relevant persons from further anti-social
acts by him.
(1A) in this section and [sections 1B - - --) “relevant authority” means—
(a) the council for a local government area;
- - - -
(1B) In this section “relevant persons” means—
(a) in relation to a relevant authority falling within paragraph (a) of subsection (1A),
persons within the local government area of that council;
4
(3) Such an application shall be made by complaint to a magistrates' court.
(4) If, on such an application, it is proved that the conditions mentioned in subsection (1)
above are fulfilled, the magistrates' court may make an order under this section (an “anti-
social behaviour order”) which prohibits the defendant from doing anything described in the
order.
(5)  For the purpose of determining whether the condition mentioned in subsection (1)(a)
above is fulfilled, the court shall disregard any act of the defendant which he shows was
reasonable in the circumstances.
(6)  The prohibitions that may be imposed by an anti-social behaviour order are those
necessary for the purpose of protecting persons (whether relevant persons or persons
elsewhere in England and Wales) from further anti-social acts by the defendant.
(7)  An anti-social behaviour order shall have effect for a period (not less than two years)
specified in the order or until further order.
(8) Subject to subsection (9) below, the applicant or the defendant may apply by complaint
to the court which made an anti-social behaviour order for it to be varied or discharged by a
further order.
(9)  Except with the consent of both parties, no anti-social behaviour order shall be
discharged before the end of the period of two years beginning with the date of service of
the order.
(10) If without reasonable excuse a person does anything which he is prohibited from doing
by an anti-social behaviour order, he is guilty of an offence and liable—
(a) on summary conviction, to imprisonment for a term not exceeding six months or to a
fine not exceeding the statutory maximum, or to both; or
(b) on conviction on indictment, to imprisonment for a term not exceeding five years or to
a fine, or to both.
(10A) The following may bring proceedings for an offence under subsection (10)–
(a) a council which is a relevant authority; (b) the council for the local government area in
which a person in respect of whom an anti-social behaviour order has been made
resides or appears to reside.
(10B) If proceedings for an offence under subsection (10) are brought in a youth court
section 47(2) of the Children and Young Persons Act 1933 (c. 12) has effect as if the
5
persons entitled to be present at a sitting for the purposes of those proceedings include one
person authorised to be present by a relevant authority.
-    - - -
(10D) In relation to proceedings brought against a child or a young person for an offence
under subsection (10)—
(a)  section 49 of the Children and Young Persons Act 1933 (restrictions on reports of
proceedings in which children and young persons are concerned) does not apply in
respect of the child or young person against whom the proceedings are brought;
(b)  section 45 of the Youth Justice and Criminal Evidence Act 1999 (power to restrict
reporting of criminal proceedings involving persons under 18) does so apply.
(10E) If, in relation to any such proceedings, the court does exercise its power to give a
direction under section 45 of the Youth Justice and Criminal Evidence Act 1999, it shall give
its reasons for doing so.
- - - -
(12) In this section—
“child” and “ young person” shall have the same meaning as in the Children and Young
Persons Act 1933;
“the commencement date” means the date of the commencement of this section;
“local government area” means—
(a) in relation to England, a district or London borough, the City of London, the Isle of
Wight and the Isles of Scilly; - - - -
10 We note that the material features of such orders for the purposes of this appeal are
:-
• Their possible duration – at least two years.
•      Their status as orders, not convictions1, hence
•      Their preventative, not punitive purpose.
•      The jurisdiction to make orders, based upon the need to protect from future anti
Though similar orders may now be used following conviction
6
– social behaviour of the subject people within the area of the relevant local
authority, here Camden.
• The power to impose prohibitions designed to protect additionally persons
outside the local government area of the authority applying for the order.
11    Monitoring of the ASBO by the relevant authority, here Camden, is an essential
element in this scheme. We received written and oral evidence from Anthony Brooks,
Head of Community safety in the Anti – Social Behaviour Action Group (“ASBAG”) in
Camden, which, in collaboration with the police, is responsible for the operation of
ASBOs in Camden, including the decision, case by case, as to the use of publicity.
He informed us that, by June, 2007, 245 ASBOs had been made in Camden,
including those made post – conviction.
12    In addition to an account of the nature of such orders and the way in which they are
managed, Mr. Brooks gave important evidence, which we accept, as to the problems
which further publicity may cause when the behaviour of an individual has
substantially improved over a significant period, whilst subject to an order. The effect
of naming or otherwise identifying him or her may be very different from publicity at or
shortly after the date of the order. He also referred us to the Home Office Guidance
on publicising Anti – Social Behaviour Orders of October, 2005 (“the H.O. Guidance”)
which was exhibited to the statement of Mr. Neil Townley of the Anti – Social
Behaviour and Alcohol Unit at the Home Office, who supported Camden `s stance.
Mr. Brooks also contended that identification of especially vulnerable ASBO subjects
(see paragraph 7 ) would be a very difficult and time – consuming exercise.
13    The H. O. Guidance is intended to reflect the judgment of Kennedy L.J. in R
(Stanley, Marshall and Kelly) v Commissioner of police for the Metropolis and
Chief Executive of London Borough of Brent [2004] EWHC 2229. Both parties
drew support from it. Its principles include the need for publicity to assist enforcement
and to reassure the community.” Publicising should be the norm, not the exception”.
On the other hand, a case by case approach to publicity is advocated. Its purpose is
not to punish. Authorities must have regard to the human rights of all concerned and
7
must be mindful of data protection principles.
14    We observe that different considerations may arise, depending on the timing of the
publicity under consideration. Stanley v Brent involved leaflets distributed quite soon
after the making of the orders. Whilst we are mindful of the fact that every ASBO is
made in public and that, as regards an order in respect of an adult, any member of
the public is entitled to attend court to witness the proceedings and the making of the
order, the re- opening of publicity eighteen months or two years later may pose
different problems.
The relevant statutory provisions
15    Section 1 sets out the general right to information.
16    Section 2(2)(a) provides for absolute exemptions from the duty to communicate
information. Section 2(3)(f)(ii) applies such an absolute exemption to information
caught by s.40 (2) where the first condition referred to in that subsection is satisfied
by virtue of s.40(3)(a)(i) or (b)..
17    So far as relevant, s.40 provides:
(1) Any information to which a request for information relates is exempt information if it
constitutes personal data of which the applicant is the data subject
(2) Any information to which a request for information relates is also exempt information
if-
(a) it constitutes personal data which do not fall within subsection (1), and
(b) either the first or the second condition below is satisfied
(3 The first condition is-
8
(a) in a case where the information falls within any of paragraphs (a) to (d) of the
definition of "data" in section 1(1) of the Data Protection Act 1998, that the
disclosure of the information to a member of the public otherwise than under this
Act would contravene-
(i) any of the data protection principles,
16 “Data” is defined in s.1 of the DPA.
1. -(1) In this Act, unless the context otherwise requires-
"data" means information which-
(a) is being processed by means of equipment operating automatically in response to
instructions given for that purpose,
(b) is recorded with the intention that it should be processed by means of such equipment,
(c) is recorded as part of a relevant filing system or with the intention that it should form
part of a relevant filing system, or
(d) does not fall within paragraph(a),(b) or(c) but forms part of an accessible record as
defined by section 68, or
(e) is recorded information held by a public authority and does not fall within any of
paragraphs (a) to (d);
"personal data" means data which relate to a living individual who can be identified-
(a) from those data, or
(b) from those data and other information which is in the possession of, or is likely to come
into the possession of, the data controller,
and includes any expression of opinion about the individual and any indication of the intentions of
the data controller or any other person in respect of the individual;
"Processing", in relation to information or data, means obtaining, recording or holding the
information or data or carrying out any operation or set of operations on the information or data,
including- … ......
(c) disclosure of the information or data by transmission, dissemination or otherwise making
available, or -- - - - -
9
17 The data protection principles are identified in DPA s. 4 and the first three schedules.
4 -(1) References in this Act to the data protection principles are to the principles set out in Part I of
Schedule 1.
(2) Those principles are to be interpreted in accordance with Part II of Schedule 1.
(3) Schedule 2(which applies to all personal data) and Schedule 3(which applies only to sensitive
personal data) set out conditions applying for the purposes of the first principle; - - - -
(4) Subject to section 27(1), it shall be the duty of a data controller to comply with the data
protection principles in relation to all personal data with respect to which he is the data
controller.
SCHEDULE 1
THE DATA PROTECTION PRINCIPLES
PART I
THE PRINCIPLES
1. 1 Personal data shall be processed fairly and lawfully and, in particular, shall
not be processed unless-
(a) at least one of the conditions in Schedule 2 is met, and
(b) in the case of sensitive personal data, at least one of the conditions in
Schedule 3 is also met.
2. Personal data shall be obtained only for one or more specified and lawful
purposes, and shall not be further processed in any manner incompatible with
that purpose or those purposes.
INTERPRETATION OF THE PRINCIPLES IN PART I
10
- The second principle
-
6. In determining whether any disclosure of personal data is compatible with the purpose or
purposes for which the data were obtained, regard is to be had to the purpose or purposes for
which the personal data are intended to be processed by any person to whom they are
disclosed.
SCHEDULE 2
CONDITIONS RELEVANT FOR PURPOSES OF THE FIRST PRINCIPLE: PROCESSING OF
ANY PERSONAL DATA
6. -(1) The processing is necessary for the purposes of legitimate interests pursued by the
data controller or by the third party or parties to whom the data are disclosed, except where the
processing is unwarranted in any particular case by reason of prejudice to the rights and
freedoms or legitimate interests of the data subject.
3 Schedule 3 deals with sensitive data, a category to which, it is agreed, the requested
information does not belong.
18 Construing as simply as possible these intricate provisions, it is common ground that the
identities of ASBO subjects are personal data and that the information requested is subject to
an absolute exemption from the duty to communicate if any of the eight data protection
principles would be contravened by its disclosure to the public. We add, for the avoidance of
doubt, that the ASBO subjects to whom we refer are those not already excluded from
disclosure by the conditions attached to the requirement to provide information contained in
paragraph 32 of the I.C. `s Decision Notice.
11
19    It is further agreed that the principles which disclosure might contravene are the first and
second principles and that the only schedule 2 condition which might be met for the purposes
of compliance with the first data principle is condition 6.
The issues
20    They are therefore these :
•    Would the communication of the names or other identification of the ASBO subjects to a
member of the public amount to fair and lawful processing of their personal data? 2
•    If so, is it necessary for the purpose of a legitimate interest pursued by Mr. Leigh, namely
his research into the use of ASBOs and their effectiveness?
•    If it is, is disclosure nevertheless unwarranted by reason of prejudice to the rights and
freedoms or legitimate interests of the ASBO subjects? The wording of condition 6
indicates that what is necessary for the specified purposes may nevertheless be
unwarranted.
•    Would the communication of this information to Mr. Leigh be compatible with the purpose
or purposes for which Camden obtained it when creating its ASBO database?
•    If all these conditions for disclosure are met, can Camden reasonably be expected to
apply the exception for “particularly vulnerable” subjects?
•    If not, can these data be fairly and lawfully processed?
21    For the I.C. `s Decision Notice to be upheld, each of those issues must be resolved in his
favour.
The approach to s.40.
22    Where s.40 is engaged, the Tribunal is required to embark on a quite different task from those
which confront it when dealing with other claims to exemption, absolute or qualified, from the
duty to communicate information. FOIA promotes the right to information. DPA conversely
protects the right to privacy. As the distinctive referential drafting of s.40 demonstrates, the
very different principles of DPA govern the approach of the public authority and, where the
2 It undoubtedly constitutes “processing” – see DPA s.1 (above)
12
need arises, the decisions of the I.C. and of this Tribunal, when s.40 is under consideration.
This was the approach adopted by this Tribunal in The Corporate Officer of the House of
Commons v Information Commissioner EA/2006/0015 and 0016 (“MP `s expenses”) to
which we shall return. Whether or not the data subject `s interests are to be regarded as
“paramount” and whatever the meaning of the epithet in the context of data protection, ( see
CCN Systems Ltd. v The Data Protection Registrar ( DA/90 25/49/8, Infolink Ltd.v The
Data Protection Registrar ( DA/ 90 25/49/ 6 ) ), his non – sensitive personal data
undoubtedly receive a high degree of protection from Schedules 1 and 2 to DPA and from
Schedule 3, where sensitive personal data are involved. It is, therefore salutary for the Tribunal
to remind itself at the outset that it is working in very different territory from that to which it is
otherwise accustomed.
The case for Camden
23 We were assisted by very full written and oral submissions from Ms. Proops, including a
helpful summary of her case served at or just before the hearing. We hope to do justice to the
breadth and refinement of her arguments in formulating them as follows:
•    Where s. 40 is engaged, the interests of the data subject are paramount, that is to say,
the weightiest consideration.
•    A fundamentally important interest is the right to privacy under Article 8 of E.C.H.R,
notwithstanding the public nature of the conduct which justified the order, the public
hearing at court and the expectation of immediate publicity.
•    “Naming and shaming” is not the purpose of publicising an ASBO; rather it is to inform
and reassure the local community and to bring home to the subject of the order the fact
that the community is aware of it and its implications.
•    The expectation of the properly briefed ASBO subject, having regard to the geographical
limits on most ASBOs, Stanley v Brent and the H. O. guidance, is for local publicity,
focussed on the area in which his conduct has had an effect. National or even
international publicity, such as could result from publicity in a national daily newspaper,
goes far beyond any reasonable expectation.
13
•    Such widespread publicity and/or publicity long after the making of the order, when the
subject` s progress may be severely disrupted by fresh identification, would not amount to
fair or lawful processing as required by the first data protection principle..
•     Communication of the identities of ASBO subjects is not necessary for the purposes of
Mr. Leigh `s legitimate interests, namely his research. Identifiers would serve as well.
•    If it is necessary, it is nevertheless unwarranted by reason of the prejudice to the interests
of the ASBO subjects, which are at least as great as those of Mr. Leigh.
•    For the purposes of the second data protection principle, the purpose for which Mr. Leigh
wants Camden to disclose the information to him is incompatible with those for which it
was obtained.
•    The condition as to excluding particularly vulnerable subjects is unworkable and therefore
reinforces Camden `s case, as already set out.
24 The Commissioner supplemented his Reply with a further skeleton argument and oral
argument of Mr. Choudhury. In essence he submits :
•    In deciding what is fair and lawful processing, it is essential to keep in mind that ASBOs
are made in open court and that the expectation of the subject is that they will be
publicised.
•    If the rights of the data subject are generally paramount, the principle is not sacrosanct. At
paragraph 78 of MPs ` expenses this Tribunal indicated a different approach where the
expenses arose from the performance of public duties so that an MP would expect
greater public scrutiny of his/her conduct. The same approach was justified where the
data subject had misconducted himself in public and knew that his ASBO would be made
in public and publicly reported.
•    The tenor of Stanley v Brent and the H.O. Guidance is that publicity is the norm.
14
•    Wider publicity, in the geographical sense, is of little practical consequence to the ASBO
subject.
•    Condition 6 of Schedule 2 was satisfied because Mr. Leigh `s research depended on
identification, if the possibility of multiple orders against the same individual in different
parts of the country was to be tackled.
•    Such research was entirely compatible with the purpose for which Camden `s database
had been created, namely the review and monitoring of orders within the borough.
The findings of the Tribunal
25       We focus on the first Data Protection Principle and on the two questions :
(i) Would this disclosure of names or other means of identification be fair processing?
(ii) Would it comply with condition 6 of Schedule 2 to DPA 1998?
26       At first blush, the public forum in which an ASBO is made and the related and expected
publicity are powerful arguments against Camden `s refusal to identify individuals who are
currently subject to such orders. However, such an instinctive response ignores both the
safeguards on disclosure imposed by the data protection principles and an important factor in
the ASBO regime, highlighted by Mr. Brookes, namely the management of the subject `s
conduct over a considerable period of time.
27       Publicity is likely to be a feature of most orders, though the H.O. Guidance, following Stanley
v Brent, enjoins a pragmatic approach.
28       Nevertheless, we note that any order will normally run for at least two years3. As indicated in
paragraphs 14 and 15, we agree with Ms. Proops` submission that publicity long after the
making of the order and without regard to the effect of the order and its management on the
subject `s subsequent behaviour, is quite different from identification and denunciation when
or shortly after the order is made. It is easy to see that, notwithstanding the honourable
3 S.1(9) of the C.A.D.A. 1998
15
motives of the serious journalist publishing the results of a responsible investigation, it may
be seen by the subject as an unjustified humiliation which takes no account of the
improvements in his behaviour which have followed the making of the order. Such a reaction
would be understandable where real progress has been made and its consequences could
be damaging for the subject and the future course of the ASBO.
29       We observe that where, by contrast, the subject `s behaviour infringes the restrictions which
the ASBO imposes, there is power to prosecute him/ her for an offence carrying a significant
sentence, which will attract further deserved publicity in any event.
30       We are much less impressed by the argument that the unexpectedly wide publicity resulting
from publication in the national media would constitute unfair processing. ASBO prohibitions
may extend beyond the local government area where the subject is active and its immediate
neighbours. More importantly, we do not think that communication of a name to distant
strangers is as likely to affect the subject as to his or her neighbours or social contacts.
31       In our judgement, there is a persuasive case that processing of such data long after the
making of the relevant ASBO is unfair.
32       Even if that view were wrong, we do not consider that condition 6 of Schedule 2 is satisfied in
this case because processing by Camden, that is to say communication of names or other
identifying features to Mr. Leigh, is not shown to be necessary for the purposes of his
research.
33       It was accepted by the I.C. that other identifiers would suffice for the purpose of establishing
whether the same individual had been the subject of multiple orders within a given local
government area, whether Camden or other areas covered by Mr. Leigh `s research. We
heard no evidence to suggest that ASBO subjects tend to migrate in significant numbers to
other parts of the country during the currency of their orders, though Mr. Brookes, for
example, might be expected to know of such a problem, if it exists, in the course of
monitoring and supervising a large number of orders over several years. Given that a large
proportion of orders in Camden relate to people with drug dependency problems, we believe
that the opposite is likely to be the case.
34       Even if the processing were shown to be necessary, condition 6 requires that we ask
ourselves whether it would be “unwarranted in (this) case by reason of prejudice to the rights
16
and freedoms or legitimate interests” of the subjects of these orders. If, contrary to our view,
it were necessary, we think it would be unwarranted because the very limited additional value
to the research provided by the identification of the subjects would be substantially
outweighed by the damage that would probably be done in some cases by belated publicity,
as discussed in paragraph 28 above. Such damage would amount to prejudice to their
legitimate interests and possibly their rights under Article 8.
35       Given those conclusions, we do not have to rule on the problems arising from the exclusion
of particularly vulnerable subjects from the I.C. `s order. Nevertheless, we observe that, in
our opinion, such a condition would impose substantial and unjustified burdens on those who
administer the ASBO regime in Camden and other local government authorities and would
have diminished significantly such value to Mr. Leigh `s research as was said to result from
identification.
36       It is similarly unnecessary to reach a firm conclusion on the alleged infringement of the
second data protection principle, though we are inclined to doubt whether the purpose of
processing would be incompatible with the purposes for which the data were obtained. Whilst
disclosure would be to the world at large, compatibility can only be judged against Mr. Leigh
`s intended purpose, when compliance with condition 6 is in issue.
Conclusion
37       For these reasons, we rule that the Decision Notice was not in accordance with law and that
Camden is not required to comply with paragraph 32.
David Farrer Q.C.
Deputy Chairman
Date 14th December, 2007
17

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