The Right to Know V The Right to Privacy

AUTHOR
Paul Simpkins and Ibrahim Hasan

ABSTRACT

Historically

Many years ago Gorden Kaye, the actor, was in hospital recovering from serious head injuries. A reporter and photographer invaded the hospital room and took photographs of Mr. Kaye with arms and legs in traction and swathed in bandages. He went to court over a breach of his privacy but failed to persuade the judge he had such a right. In 1991 in the case of Kaye v Robertson it was established that there was no basic right in UK law to privacy.

The Court of Appeal said of this case “It is well known that in English law there is no right to privacy, and accordingly there is no right of action for breach of a person’s privacy. The facts of the present case are a graphic illustration of the desirability of Parliament considering whether and in what circumstances statutory provision can be made to protect the privacy of individuals”.

Lord Justice Bingham agreeing said “The case highlights, yet again, the failure of both the common law of England and statute to protect in an effective way the personal privacy of individual citizens”.

The Freedom of Information Act, maybe inadvertently, together resurrected the old arguments by allowing anyone or any company or any newspaper to ask for the personal data of any individual working in the public sector.

The Freedom of Information Act 2000 came into force on 1st January 2000. It gives access to all recorded information held by public sector organisations. Where information about individuals is requested, it requires a consideration of the balance between the individual’s right to privacy with the public’s right to know. A number of recent decisions of the Information Commissioner’s Office and the Information Tribunal have shed light on how to achieve this balance.

Common requests include:

  • Salaries, expenses & retirement packages
  • Grievance and disciplinary records
  • Name and contact details of staff

This paper will examine all the latest decisions and attempt to find a common thread and issues for consideration when dealing with such requests.
Background

The Human Rights Act 1998 brought a variety of new rights to the British people. Key in this area was Article 8 which is generally considered the right to Privacy.

“Everyone has the right to respect for his private and family life his home and his correspondence”

The right once conferred is instantly qualified by the following paragraph.

“There shall be no interference by a public authority except such as in accordance with the law and is necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the rights and freedoms of others”

Exemptions in the Freedom of Information Act

Section 40 concerns personal data within the meaning of the Data Protection Act 1998. Section 40 applies to two distinct types of requests for information:

  1. if a request asks for the personal data of the applicant himself, the information is exempt; and
  2. if a request asks for the personal data of someone else then that information will be exempt if its disclosure would contravene any of the data protection principles in the Data Protection Act 1998 (or certain other provisions of the Data Protection Act 1998).

Landmark cases

There are now in early 2008 many decisions publicly available for scrutiny from the regulator – the Information Commissioner. We will consider these in the final paper.

Signposts

From the decisions made by Information Commissioner and the Information Tribunal so far, it seems that when faced with a request for personal information about third parties under Freedom of Information, public authorities must consider the following factors:

  • What is the role or capacity of the subject(s) of the request?
  • Is the information about their public life or their private life?
  • What is their reasonable expectation as to the way their information is going to be treated by the public authority?
  • What harm would be caused to them if the information was disclosed?

The Freedom of Information Act 2000 has led to a huge increase in requests for information about individuals. Many of these are really requests for subject access under the DPA. There is no blanket exemption for requests for third party personal information. Each request will have to be examined on its own merits and the provisions of the Act applied. Public sector employees and those whose personal information is held by public sector organisations can no longer expect total confidentiality. In certain circumstances their information will be disclosed to the outside world. This seems to be the price of freedom of information.

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