ICO - FS50848833

ICO - FS50848833
Authority:	ICO (UK)
Jurisdiction:	United Kingdom
Relevant Law:	Article 5 GDPR Article 6 GDPR Article 9 GDPR
Type:	Complaint
Outcome:	Rejected
Started:
Decided:
Published:	01.05.2020
Fine:	None
Parties:	n/a
National Case Number/Name:	FS50848833
European Case Law Identifier:	n/a
Appeal:	Unknown
Original Language(s):	English
Original Source:	ICO (in EN)
Initial Contributor:	Mariam TABATADZE

The ICO issued a decision stating the DfE acted lawfully by refusing to provide the entire audio record of the 'Trojan Horse affaire' hearing. The requested information includes special category data and its disclosure would breach data protection principles.

English Summary

Facts

The Department of Education (the DfE) was requested to provide the entire audio recording of a Professional Conduct Panel hearing into a case against five teachers - so called Trojan Horse affair. (This involved investigations into the alleged infiltration of Islamist extremists into the education sector in Birmingham. These hearings investigate whether there has been unacceptable professional misconduct by these five teachers) The hearing took place in public and was recorded by the National College for Teaching and Leadership (NCTL). The panel’s decision was announced on the government’s website. The complainant argued with the DfE that the audio files contain important information not found elsewhere such as how statements were spoken including intonation and emotion. He further argues that this is essential for public scrutiny and transparency in this case. The request was refused by the DfE under section 40(2) (personal information), 31(2) (law enforcement) and 14 (vexatious request) of the FOIA. Section 40 of the FOIA provides exemptions from the right to information if it is personal data as defined in the DPA. Section 31 provides exemption from disclosure for certainness categories of information to protect the law enforcement investigations. Section 14 states that the public authorities do not have to comply with vexatious requests. The complainant filed a complaint against the DfE with the ICO about the way his request for information had been handled by the DfE.

Dispute

The ICO had to determine whether the DfE has correctly withheld information within the scope of the request on the basis of section 14 of the FOIA or either of the exemptions at section 40(2) or 31(2) of the FOIA. First, the ICO had to assess if the requested information imposes the burden upon the DfE. Second, the ICO analyzes if the withheld information includes personal data and if the disclosure of that data will contravene the DP principles.

Holding

The ICO starts its ruling by stating that complying with the present request would not be a burden for the DfE, and moved on to consider if the requested information constituted personal data as defined by the Data Protection Act 2018 (‘DPA’). By referring to section 3(2) of the DPA, the ICO stated that the withheld information in the audio record falls within the definition of ‘personal data’, it relates to and identifies the data subjects concerned. Audio recording would reveal the identities of individuals involved and would capture information related to religious views due to the hearing relating to alleged extremism. Moreover, the requested data does include special category data. Here, the commissioner refers to article 9 of the GDPR. ‘There will be clear references to the religious beliefs of some of the individuals’ and it would be difficult to separate out the special category data without rendering some of the remaining information meaningless, particularly as the request concerns audio recordings. As none of the conditions required by article 9 of GDPR for processing special category data are satisfied there is no legal basis for its disclosure. Processing any special category data in the recordings would therefore breach principle of DP and so this information is exempt under section 40(2) of the FOIA. The ICO has gone on to consider if there are conditions defined by an article 6 of GDPR (in this case art.6 (1)(f)) to allow for the lawful processing of the remaining personal data in the audio recordings that is not special category data. The ICO considered three-part test: Legitimate interest Necessity and Balancing tests. While the ICO acknowledges that the disclosure of the requested information is necessary to meet the legitimate interests identified by the complainant, it determined that that legitimate interest is insufficient to outweigh the data subjects’ fundamental rights and freedoms.

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English Machine Translation of the Decision

The decision below is a machine translation of the English original. Please refer to the English original for more details.