The release of a judge’s handwritten notes is likely to have far-reaching consequences, says Alex Aisthorpe.
Since the recent news that a judge’s handwritten notes had been released pursuant to a subject access request (SAR) made under the Data Protection Act 1998 (DPA), data protection lawyers have been considering whether this establishes a far-reaching legal precedent for the right to personal data. Since the release, the Information Commissioner’s Office (ICO) has also published its decision letter, which clarifies some of its reasoning.
By way of background, Mr and Mrs Percival made various SARs to the Ministry of Justice (MoJ) in 2014 and 2015 relating to employment tribunal litigation. The Percivals were unhappy with the response they received from the MoJ and asked the ICO to conduct an assessment under section 42 of the DPA.
It is understood that the MoJ’s position in response to the assessment process was that: (1) the notes did not form part of a ‘relevant filing system’ and therefore did not fall within the scope of the DPA; (2) the MoJ was not a relevant data controller in respect of the notes; and (3) in any event the notes should not be disclosed.
Once the ICO became involved, in assessing the MoJ’s response, it found that handwritten notes in court files do constitute data for the purposes of the DPA. The basis for the decision appears to be that, although informal notes made by a judge won’t be held on a relevant filing system, as soon as they are placed on the court files, they will be structured enough to constitute a relevant filing system.
The ICO also determined that the MoJ became a data controller at the point when the notes were added to the court file. As such, the ICO concluded that access to the information in the court file should be provided to the data subjects pursuant to section 7(4) (the mixed media exemption) and section 8(2) (on the proportionality of supply of data) of the DPA or unless an exemption under the DPA applies.
The ICO went on to recommend that the MoJ should review the contents of the court file so as to ensure that the data subjects were provided with all data to which they were entitled. The ICO declined to take enforcement action against the MoJ. The notes were eventually released in January 2017.
The ICO has described its decision on the relationship between judicial notes and the DPA as “likely to be far-reaching”. One thing which does seem certain is that the decision is likely to give rise to an increase in unsuccessful litigants making SARs; this in turn could dissuade judges from expressing themselves freely in their notes.