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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Johnson v Medical Defence Union Ltd [2004] EWHC 347 (Ch) (20 February 2004) URL: https://www.bailii.org/ew/cases/EWHC/Ch/2004/347.html Cite as: [2004] EWHC 347 (Ch) |
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CHANCERY DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
DAVID PAUL JOHNSON![]() |
Claimant |
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| - and - |
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| THE MEDICAL DEFENCE UNION LIMITED |
Defendant |
____________________
Miss Jacqueline Reid (instructed by Messrs. Fladgate Fielder) for the Defendant
____________________
Crown Copyright ©
Mr. Justice Laddie:
Johnson
is the claimant. He is a consultant orthopaedic surgeon. The defendant is the Medical Defence Union ("the MDU").
Johnson
made what is known as an "access request" of the MDU under section 7 of the Data Protection Act 1998 ("the DPA"). It is said that the MDU has failed to comply properly with that request. It is that assertion which lies behind this application. In the terminology of the DPA, Mr.
Johnson
is the "data subject" and the MDU is the "data controller".
Johnson
's membership, in accordance with the provisions of Article 11(a). This had obvious repercussions for Mr.
Johnson
. He was forced to find alternative insurance cover because he was no longer eligible for the special insurance available through the MDU. Furthermore, Mr.
Johnson
was extremely concerned that what he regarded as his expulsion from the MDU would be likely to convey to others, including medical colleagues, the impression that he was either incompetent or had done something wrong which was sufficiently grave to justify exclusion from the MDU.
Johnson
is anxious to point out, he has been in practice for over 20 years and in all that time he has never been sued for negligence. Furthermore, in that period there have been only two occasions on which he has been reported to the General Medical Council ("GMC"). On both, the complaint was dismissed at a preliminary stage. He says that he is a highly competent surgeon and that until January 2002 he had an unblemished reputation. That was changed, in his view, when he was excluded from the MDU in January of that year.
Johnson
's competence as a surgeon. That was reaffirmed before me by the MDU's counsel, Miss Reid. Nevertheless, the MDU says that it was entitled to refuse to renew his membership.
Johnson
with a number of documents, but some of them were heavily redacted. It was also apparent that some documents which related to, or on which there was a reference to, Mr.
Johnson
were not provided at all. Mr.
Johnson
took the view that the MDU had failed to comply properly with his request. This resulted in the commencement of these proceedings in February 2003.
Johnson
seeks three major forms of relief. First, because he considers the MDU to have failed to respond properly to his access request of 22 January 2002, he claims relief pursuant to section 7(9) of the DPA. That is to say, he asks for an order requiring the MDU to comply properly. Second, he applies under the provisions of section 10(4) of the DPA for an order, in effect, to prevent the MDU from improperly processing personal data about him and an order under section 14(4) of the DPA for the rectification, blocking or destruction of certain data. Third, he seeks financial compensation under the provisions of section 13(1) and (2) of the DPA for damage suffered by him and distress caused to him by the allegedly improper processing by the MDU of his personal data.
Johnson
processed by the MDU and a knowledge of how those data were used by the MDU. For that reason, at a case management conference before Master Moncaster on 12 August 2003, the parties agreed that the question of compliance with the access request should be dealt with as a preliminary issue. Accordingly, the Master made an order that the following preliminary issue be determined:
"Whether and to what extent the defendant has complied with its obligations under section 7 of the Data Protection Act 1998, pursuant to the request made by the claimant of the defendant and dated 22nd January 2002."
Johnson
's request in March 2002, the MDU have made certain further disclosures. Some of these take the form of removing some of the redactions which have been applied to the documents as originally disclosed.
Johnson
) making access requests. As a consequence, the MDU sought to amend its defence to rely upon points which, prior to Durant, it had not thought it could rely on. Because of the timing of Durant, that request for permission to amend was made only shortly before this hearing. Mr.
Johnson
had little time to respond in the form of a reply. On the other hand, neither Miss Reid nor Mr. Ashley Roughton, who appears for Mr.
Johnson
, have suggested that it is possible to deal with this preliminary issue without paying due regard to the Durant decision. Further, neither side expressed any desire for an adjournment. In the result, I allowed the amendment.
Johnson
. The meaning of this expression will be considered below. However, for present purposes it should be noted that section 7(1) provides, insofar as material:
"(1) Subject to the following provisions of this section and to sections 8 and 9, an individual is entitled --
(a) to be informed by any data controller whether personal data of which that individual is the data subject are being processed by or on behalf of that data controller,
(b) if that is the case, to be given by the data controller a description of --
(i) the personal data of which that individual is the data subject,
(ii) the purposes for which they are being or are to be processed, and
(iii) the recipients or classes of recipients to whom they are or may be disclosed,
(c) to have communicated to him in an intelligible form --
(i) the information constituting any personal data of which that individual is the data subject, and
(ii) any information available to the data controller as to the source of those data".
"The intention of the Directive, faithfully reproduced in the Act, is to enable an individual to obtain from a data controller's filing system, whether computerised or manual, his personal data, that is, information about himself. It is not an entitlement to be provided with original or copy documents as such, but, as section 7(1)(c)(i) and 8(2) provide, with information constituting personal data in intelligible and permanent form. This may be in documentary form prepared for the purpose and/or where it is convenient in the form of copies of original documents redacted if necessary to remove matters that do not constitute personal data (and/or to protect the interests of other individuals under section 7(4) and (5) of the Act)."
Johnson
a duty of care and that it has been breached. If any such cause of action had been in issue, questions as to the scope of disclosure to be given might have arisen. As it is, all that I have to consider is whether personal data exists and, if so, whether the MDU has failed to communicate them to Mr.
Johnson
in intelligible form and, if it has, whether it was justified in so doing.
"The appeal raises four important issues of law concerning the right of access to personal data provided by sections 7 and 8 of the 1998 Act:
1) The personal data issue - What makes 'data', whether held in computerised or manual files, 'personal' within the meaning of the term 'personal data' in section 1(1) of the 1998 Act so as to entitle a person identified by it to its disclosure under section 7(1) of the Act -- more particularly in this context, to what, if any, extent, is information relating to the FSA's investigation of Mr. Durant's complaint about Barclay's Bank within that definition?
2) The relevant filing system issue - What is meant by a 'relevant filing system' in the definition of 'data' in section 1(1) of the 1998 Act, so as to render personal information recorded in a manual filing system 'personal data' disclosable to its subject under section 7(1) -- more particularly here, was the FSA's manual filing such a system so as to require it to disclose to Mr. Durant from those files information that would, if it were in computerised form, constitute 'personal data' within section 1(1)?
3) The redaction issue - Upon what basis should a data controller, when responding to a person's request for disclosure of his personal data under section 7(1), consider it 'reasonable in all the circumstances', within the meaning of that term in section 7(4)(b), to comply with the request even though the personal data includes information about another and that other has not consented to such disclosure?
4) The discretion issue - By what principles should a court be guided in exercising its discretion under section 7(9) of the Act to order a data controller who has wrongly refused a request for information under section 7(1), to comply with that request?"
"'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."
"'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."
"'relevant filing system' means any set of information relating to individuals to the extent that, although the information is not processed by means of equipment operating automatically in response to instructions given for that purpose, the set is structured, either by reference to individuals or by reference to criteria relating to individuals, in such a way that specific information relating to a particular individual is readily accessible."
"The parliamentary intention to which [counsel for the defendant] Mr. Sales referred is, in my view, a clear recognition of two matters: first, that the protection given by the legislation is for the privacy of personal data, not documents, the latter mostly retrievable by a far cruder searching mechanism than the former; and second, of the practical reality of the task that the Act imposes on all data controllers of searching for specific and readily accessible information about individuals. The responsibility for such searches, depending on the nature and size of the data controller's organisation, will often fall on administrative officers who may have no particular knowledge of or familiarity with a set of files or of the data subject to whose request for information they are attempting to respond. As Mr. Sales pointed out, if the statutory scheme is to have any sensible and practical effect, it can only be in the context of filing systems that enable identification of relevant information with a minimum of time and costs, through clear referencing mechanisms within any filing system potentially containing personal data the subject of a request for information. Anything less, which, for example, requires the searcher to leaf through files to see what and whether information qualifying as personal data of the person who has made the request is to be found there, would bear no resemblance to a computerised search."
"And it is only to the extent that manual filing systems are broadly equivalent to computerised systems in ready accessibility to relevant information capable of constituting 'personal' data that they are within the system of data protection."
"It is plain from the constituents of the definition considered individually and together, and from the preface in it to them, 'although the information is not processed by means of equipment operating automatically in response to instructions given for that purpose', that Parliament intended to apply the Act to manual records only if they are of sufficient sophistication to provide the same or similar ready accessibility as a computerised filing system. That requires a filing system so referenced or indexed that it enables the data controller's employee responsible to identify at the outset of his search with reasonable certainty and speed the file or files in which the specific data relating to the person requesting the information is located and to locate the relevant information about him within the file or files, without having to make a manual search of them. To leave it to the searcher to leaf through files, possibly at great length and cost, and fruitlessly, to see whether it or they contain information relating to the person requesting information and whether that information is data within the Act bears, as Mr. Sales said, no resemblance to a computerised search. It cannot have been intended by Parliament -- and a filing system necessitating it cannot be 'a relevant filing system' within the Act. The statutory scheme for the provision of information by a data controller can only operate with proportionality and as a matter of common-sense where those who are required to respond to requests for information have a filing system that enables them to identify in advance of searching individual files whether or not it is 'a relevant filing system' for the purpose."
"Accordingly, I conclude, as Mr. Sales submitted, that 'a relevant filing system' for the purpose of the Act, is limited to a system:
1) in which the files forming part of it are structured or referenced such a way as clearly to indicate at the outset of the search whether specific information capable of amounting to personal data of an individual requesting it under section 7 is held within the system and, if so, in which file or files it is held; and
2) which has, as part of its own structure or referencing mechanism, a sufficiently sophisticated and detailed means of readily indicating whether and where in an individual file or files specific criteria or information about the applicant can be readily located."
Johnson
and of which he wants, in effect, copies, as being manual in this sense.
Johnson
which, it now believes, it was under no obligation to disclose. Some of them were partially redacted. It does not seek the return of any of this material but it does dispute Mr.
Johnson
's request to remove the redactions, both on the grounds that non-electronic records are outside the ambit of the DPA and because, even if these records are within the ambit, the redactions were justified. It also disputes the need to disclose information contained in certain other manual files from which no disclosure has been given to date.
At what date must information be "data" within the meaning of s 1(1) DPA for it to be discloseable?
Johnson
were produced by the MDU by use of word processors. Mr. Roughton argues that, on a balance of probabilities, they must have been saved on to the computer hard disks, even if only for a short period. Similarly, in the other files from which his client seeks data, and which he has not seen at all, he says it is likely that there are such documents.
Is the MDU correct in its assertion that certain identified documents and files are retained only in manual form?
Johnson
has at least seen partly redacted copies. However, there are a number of other files which have not been disclosed to him. Accordingly, his criticism of the MDU's assertion in relation to the latter has to be made in ignorance of the facts. Mr. Roughton argues that in deciding whether to go behind the MDU's assertions on this and other topics, it is necessary to bear in mind that section 15 of the DPA gives the court power to call for the disputed material for inspection. However, that section makes it clear that the inspection is to be carried out by the court. Neither the data subject nor his lawyers are allowed to see the material. He says that his client's hands are, in effect, tied behind his back. It seems to me that this is a real disadvantages to the data subject and the court must allow him reasonable leeway to challenge the data controller and his witnesses on the subject. Furthermore, it must be open to the court to press the data controller for further information, if necessary out of sight of the data subject and his representatives, relating to the issue. In the end, however, the court must decide on the material before it and on a balance of probabilities whether or not the files are manual.
Johnson
has not seen, there is nothing about them which leads me to suspect that the MDU's assertions on this issue were not to be believed. It follows that the preliminary issue is to be answered in the affirmative in relation to all these documents and files.
"28. It follows from what I have said that not all information retrieved from a computer search against an individual's name or unique identifier is personal data within the Act. Mere mention of the data subject in a document held by a data controller does not necessarily amount to his personal data. Whether it does so in any particular instance depends on where it falls in a continuum of relevance or proximity to the data subject as distinct, say, from transactions or matters in which he may have been involved to a greater or lesser degree. It seems to me that there are two notions that may be of assistance. The first is whether the information is biographical in a significant sense, that is, going beyond the recording of the putative data subject's involvement in a matter or an event that has no personal connotations, a life event in respect of which his privacy could not be said to be compromised. The second is one of focus. The information should have the putative data subject as its focus rather than some other person with whom he may have been involved or some transaction or event in which he may have figured or have had an interest, for example, as in this case, an investigation into some other person's or body's conduct that he may have instigated. In short, it is information that affects his privacy, whether in his personal or family life, business or professional capacity."
"30. Looking at the facts of this case, I do not consider that the information of which Mr. Durant seeks further disclosure - whether about his complaint to the FSA about the conduct of Barclays Bank or about the FSA's own conduct in investigating that complaint - is 'personal data' within the meaning of the Act. Just because the FSA's investigation of the matter emanated from a complaint by him does not, it seems to me, render information obtained or generated by that investigation, without more, his personal data. For the same reason, either on the issue as to whether a document contains 'personal data' or as to whether it is part of 'a relevant filing system', the mere fact that a document is retrievable by reference to his name does not entitle him to a copy of it under the Act."
Johnson
is personal data as explained in Durant. In fact, the argument needs to be a little more sophisticated than that. The vast majority of the redactions which Mr.
Johnson
wants removed are clearly, from the context, the identities of people by whom or to whom a document or information was sent. Mr. Roughton does not argue that those identities are his client's personal data. He reminds me of the terms of section 7(1)(b) and (c) and points out that what his client is entitled to is not simply his personal data but ancillary information relating to them; namely, the sources and addressees of that data. In other words, the section entitles his client to be told not only what personal data the data controller are processing, but information concerning those involved in the transmission of those data. I agree with the generality of this submission.
Johnson
's personal data at all. For example, C1/32 is simply a record sheet which contains no comments or data concerning Mr.
Johnson
. Similarly, C1/62 is an e-mail in which amendments to a draft letter are being discussed. Although, from the title of the e-mail, it appears that this comes from a file on Mr.
Johnson
, the e-mail contains nothing which could be said to focus on him or affect his privacy. Similarly, C2/1 and 2 appear to be telephone call and letter logs. They contain no information about Mr.
Johnson
. C3/9/188 is a file note of a conversation between Mr.
Johnson
and someone at the MDU in which Mr.
Johnson
is recorded as complaining about the way a medical insurance company, BUPA, had treated him. He wanted the MDU to write to the chief executive of BUPA on his behalf. A note records that the MDU was of the view that this was a matter in which it should not become involved. Once again, none of this focuses on Mr.
Johnson
or is about him. It does not affect his privacy. It contains none of his personal data.
Johnson
. Among other things, it records that BUPA considered that he had breached their procedures and were proposing withdrawal of recognition from him as a BUPA consultant. This, in my view, is information focused on Mr.
Johnson
and a matter which affects his privacy. It is his personal data, even if much of the rest of the material on this page is not personal data and need not have been disclosed. C2/1/6-7 is a case summary concerning Mr.
Johnson
. It contains a lot of information about him. For example, it records that his admitting rights at a particular hospital were suspended. It refers to complaints about him; that he tried to log on to hospital computers, which is described as a breach of hospital regulations. It also refers to there being conflicts between Mr.
Johnson
and colleagues. In my view, this also is Mr.
Johnson
's personal data.
Johnson
sought advice or assistance from the MDU. It sets out an extremely brief precis of the date and nature of each piece of advice or assistance sought. For example, one incident is recorded by reference to the date, the name of the patient and with the summary "Amorous patient". It also records who from the MDU was the "lead" in dealing with this matter. The identity of the lead is redacted.
Johnson
's personal data. It is equivalent to the report to the FSA by Mr. Durant of his complaints about Barclays Bank. The focus was the patient, not the surgeon. On the other hand, the totality of the document, covering five pages, is clearly about Mr.
Johnson
. It is an analysis of how much he used the MDU's services and for what sort of case. This is focused on him. Indeed, Miss Reid explained that one of the factors which the MDU says caused it to decline to renew Mr.
Johnson
's membership was the fact that he had used its services so much.
Johnson
is prima facie entitled to be given a description of that personal data and relevant information about the origin and dissemination of that summary.
Johnson
and his lawyers, under section 15(2) of the DPA. I have come to the conclusion that only the following could be considered as containing his personal data: C1/67; C1/79; C1/86; C1/87; C1/89; C1/91; C1/95; C1/96; C2/1/3; C3/12/401; C3/12/402; C3/13/418; C3/13/419; C3/13/421; C3/14/428; C3/14/430; C3/14/432.
Johnson
and which appear to be primarily concerned with his history, also contain personal data; C2/1/3-5; C2/1/6-7; C2/1/10; C3/12/401-402 and 404; C3/13/418-422.
Johnson
on the following pages: C2/1/3; C2/1/6; C2/1/7 (possibly). All other redactions have nothing to do with the circulation of these summaries.
"7(4) Where a data controller cannot comply with the request" -- that is for information under section 7(1) -- "without disclosing information relating to another individual who can be identified from that information, he is not obliged to comply with the request unless --
(a) the other individual has consented to the disclosure of the information to the person making the request, or
(b) it is reasonable in all the circumstances to comply with the request without the consent of the other individual, or
(c) the information is contained in a health record and the other individual is a health professional who has compiled or contributed to the health record or has been involved in the care of the data subject in his capacity as a health professional. [added by the Data Protection Subject Access Modification (Health) Order 2000 SI 2000/413]
(5) In subsection (4) the reference to information relating to another individual includes a reference to information identifying that individual as the source of the information sought by the request; and that subsection is not to be construed as excusing a data controller from communicating so much of the information sought by the request as can be communicated without disclosing the identity of the other individual concerned, whether by the omission of names or other identifying particulars or otherwise.
(6) In determining for the purposes of subsection (4)(b) whether it is reasonable in all the circumstances to comply with the request without the consent of the other individual concerned, regard shall be had, in particular, to --
(a) any duty of confidentiality owed to the other individual,
(b) any steps taken by the data controller with a view to seeking the consent of the other individual,
(c) whether the other individual is capable of giving consent, and
(d) any express refusal of consent by the other individual."
"8(7) For the purposes of section 7(4) and (5) another individual can be identified from the information being disclosed if he can be identified from that information, or from that and any other information which, in the reasonable belief of the data controller, is likely to be in, or to come into, the possession of the data subject making the request."
"The data subject may have a legitimate interest in learning what has been said about him and by whom in order to enable him to correct any inaccurate information given or opinions expressed. The other may have a justifiable interest in preserving the confidential basis from which he supplied the information or expressed the opinion." (paragraph 54)
"64 It is important for data controllers to keep in mind the two stage thought process that section 7(4) contemplates and for which section 7(4)-(6) provides.
65 The first is to consider whether information about any other individual is necessarily part of the personal data that the data subject has requested. I stress the word 'necessarily' for the same reason that I stressed the word 'cannot' in the opening words of section 7(4), 'Where a data controller cannot comply with a request without disclosing the information about another individual who can be identified from the information'. If such information about another is not necessarily part of personal data sought, no question of section 7(4) balancing arises at all. The data controller, whose primary obligation is to provide information, not documents, can, if he chooses to provide that information in the form of a copy document, simply redact such third party information because it is not a necessary part of the data subject's personal data.
66 The second stage, that of the section 7(4) balance, only arises where the data controller considers that the third party information necessarily forms part of the personal data sought."
"… should also be entitled to ask what, if any, legitimate interest the data subject has in disclosure of the identity of another individual named in, or identifiable from, personal data to which he is otherwise entitled." (paragraph 61).
"If a court is satisfied on the application of any person who has made a request under the foregoing provisions of this section that the data controller in question has failed to comply with the request in contravention of those provisions, the court may order him to comply with the request."
"… the court's task on an application under section 7(9) would be one of review of the data controller's decision, but a more intensive Daly – "anxious scrutiny" - type of review than the traditional Wednesbury test. Even if the section 7(9) decision were not strictly one of review, but were to be regarded as a primary decision, the test in such a statutory challenge of a non-judicial decision-taker would be much the same, see SSHD v. Rehman, [2003] 1 AC 153, per Lord Slynn at paras. 22 and 26, Lord Steyn at para. 31 and Lord Hoffmann at paras. 49, 50, 57 and 59)." (paragraph 59)
Johnson
's pleadings, nor was it put to any of the three MDU witnesses who were cross-examined by Mr. Roughton. It is not referred to in Mr.
Johnson
's witness statement prepared for this application. It arose for the first time in the course of Mr. Roughton's submissions before me. Furthermore, it is noticeable that no such allegation was made at the time the access request was made to the MDU,. When the MDU responded to the request, Mr.
Johnson
's response, dated 4 March 2002, included the following paragraph:
"You have redacted parts of the data. Whilst this may be appropriate to disguise the initials or names of your staff, you have obscured dates, phrases, sentences, sections and whole entries. This is not correct provision of the data to which I am entitled."
In other words, Mr
Johnson
was not asserting that he had any interest in the names of the MDU staff or other persons through whom the data had passed or would pass.
Johnson
's request. I am not satisfied that the data controller has failed to comply with the request properly. In view of this, it is not necessary to consider the fourth topic discussed in Durant; namely, the court's discretion.
Johnson's understandable distress at the MDU's decision not to continue his membership should be somewhat assuaged by the fact that, shortly thereafter, he obtained professional indemnity assurance through another organisation, the Medical Protection Society.