LTT185 - Condition 5 Schedule 3 Data Protection Act 1998 (condition for processing sensitive personal data)

• FOI/EIR: FOI / EIR
• Section/Regulation: s 40(2), reg 13
• Issue: Condition 5 Schedule 3 Data Protection Act 1998 (condition for processing sensitive personal data)
• Related Lines to Take: LTT86, LTT139
• Related Documents: EA/2009/0083
• Source: Policy Team
• Details: Content
• Contact: DC
• Date: 19/11/2010
• Policy Reference: LTT185
• © Copyright Information Commissioner's Office, re-used with permission
• Original source linked from here: LTT

Line to take

The Commissioner does not consider that where a defendant chooses to plead mitigating circumstances in open court in an effort to reduce their sentence and thereby makes certain information public condition 5 of Schedule 3 of the DPA will be satisfied

Further Information

In the case of Bryce v ICO (EA/2009/0083), the Tribunal considered a request to Cambridge Constabulary for information contained in a report into the investigation of the death of the appellants sister. The requested information comprised the personal data of the offender, some of which in turn was sensitive personal data as it related to the commission or alleged commission by him of an offence or to his physical or mental health.

Having considered fairness and the conditions in schedule 2, the Tribunal went on to consider schedule 3 and found that condition 5 was met in relation to some of the sensitive personal data (specifically the information that had previously been disclosed to the court). Condition 5 is met where "the information contained in the personal data has been made public as a result of steps deliberately taken by the data subject". The basis for this view was that the information was already in the public domain in the form of a court transcript and that it was put there by the offender himself. The information in question was disclosed to the court by the offender in an effort both to reduce the charge from murder to manslaughter and to mitigate his sentence.

Although a transcript of crown court proceedings may have entered the public domain, we do not agree that information provided to the court in such circumstances can be considered to have "been made public as a result of steps deliberately taken by the data subject". The data subject may well have been aware that information disclosed in open court would enter the public domain, although this is not necessarily the case. In any event, as he had no option but to make the information available to the court in order to defend himself, this cannot be characterised as deliberately placing the information in the public domain. Moreover, even if it is established that information which has been disclosed in open court has entered the public domain, it is not necessarily the case that it will remain in the public domain (see LTT139) and this will also call into question whether the information can be described as "being made public".

The Commissioner considers that there are also potential human rights implications if he were to follow the Tribunal’s approach as it could result in individuals being deterred from saying things in court in order to defend themselves. It is not considered acceptable that the use of Condition 5 of Schedule 3 should act as a disincentive to individuals being able to exercise their human rights.