Lord, R (on the application of) v Secretary of State for the Home Department

A data controller cannot use a blanket policy to refuse a prisoner access to Category A reports. Under the Data Protection Act 1998, the exemptions for crime prevention and the protection of other individuals require an assessment of the particular case and permit only necessary, targeted non-disclosure.

In section 29(1), likely requires a very significant and weighty chance of prejudice. A real risk is insufficient. Administrative effort must be assessed against the importance of the information to the data subject. Where no exemption is established, the court should ordinarily exercise its discretion to enforce subject-access rights, particularly where liberty is affected.

A fair Category A gist must disclose relevant divergent views, not merely the prison's overall recommendation.

The claimant was a Category A life prisoner. His annual security review was supported by reports containing sharply conflicting views about whether he could safely be downgraded. The gist supplied to him did not reveal that divergence and gave the impression that no report supported downgrading.

He sought full disclosure of the reports through a subject-access request under the Data Protection Act 1998. The Secretary of State relied on the prevention-of-crime exemption, the interests and confidentiality of report writers, and the existing gist procedure. The claim, initially issued under CPR Part 8, was transferred to the Administrative Court and proceeded as judicial review.

The central issues were whether the statutory exemptions justified a general policy of withholding Category A reports and whether the court should order disclosure.

1. The claim succeeded. The claimant established a right in principle to receive the six Category A reports in full and unredacted form. The Secretary of State had not established a statutory ground for withholding any part of them.

2. The common-law gist supplied for the 2001 review was unfair. Applying the fairness principles in R v Secretary of State for the Home Department ex p Duggan [1994] 3 All ER 277 and R v Secretary of State for the Home Department ex p McAvoy [1998] 1 WLR 790, a prisoner must receive the gist of all relevant reports, including relevant matters of fact and opinion. At a minimum, a gist should say whether views are unanimous; identify the numbers for and against where they are divided; and convey the gist of each divergent view. A gist limited to the prison's overall recommendation did not meet that standard. This was an alternative common-law basis for relief and also materially informed the statutory context.

3. Section 29(1) of the Data Protection Act 1998 applies in the particular case. The word likely means that there may very well be prejudice: a very significant and weighty chance, though not necessarily a probability exceeding 50 per cent. A real but modest risk is insufficient. The Secretary of State's evidence justified targeted non-disclosure in some cases, but not the blanket policy of disclosing no more than a gist. Nothing specific to this claimant justified reliance on the exemption.

4. Under section 7(4)(b), the court had to balance the claimant's interest in access against the privacy and safety interests of report writers. Those interests were important, but full non-disclosure beyond the gist was not a necessary or proportionate response. A selective, case-specific system could protect report writers and genuinely sensitive prison-security material. The same conclusion followed under section 8(2)(a): the limited administrative work of identifying and redacting protected material could not outweigh the significance of information bearing on liberty.

5. Section 7(9) conferred a discretion, but there was no sufficiently weighty reason to refuse enforcement once the exemptions failed. The court therefore directed that an appropriate order for disclosure be drafted. Consequential issues, including costs and permission to appeal, were adjourned.

High Court (Administrative Court): The claimant's CPR Part 8 subject-access claim was transferred to the Administrative Court. Permission to apply for judicial review was granted, and the claim succeeded in this judgment.