K, R (on the application of) v Halton Borough Council

A public authority which makes a specific promise giving rise to a legitimate expectation must honour it unless departure is objectively justified and proportionate to a legitimate aim. Retention of personal files may interfere with the right to privacy under Article 8, as well as engaging data-protection requirements that personal data must not be kept longer than necessary. A later blanket retention policy cannot by itself justify disregarding an earlier promise. The authority must conduct a genuine balancing exercise, taking into account the individual circumstances, the public interest and the strength of the expectation.

The claimant, a head teacher, challenged Halton Borough Council’s refusal to destroy social-services files concerning an earlier investigation involving his son. The Council’s predecessor had promised that the files would be destroyed by June 2002, or, on the Council’s alternative construction, by June 2003. The Council did not destroy them and later adopted a policy requiring comparable files to be retained for 35 years from closure.

The claimant sought destruction of the files, relying on legitimate expectation, Article 8 of the European Convention on Human Rights and the Data Protection Act 1998. Alternatively, he sought a risk assessment. The central issue was whether the Council had sufficient justification for departing from its promise and continuing to retain the files.

1. The claim succeeded. The Council was ordered to destroy the file, and the claimant was awarded costs to be assessed if not agreed.
2. The letters sent in 1995 amounted to an unconditional promise by the Council’s predecessor that the file would be destroyed on or as soon as possible after 25 June 2002. The promise bound the defendant Council.
3. Under the legitimate-expectation principles stated in Nadarajah Abdi v Secretary of State for the Home Department [2005] EWCA Civ 1363, reflecting R v Secretary of State for Education, ex parte Begbie and R v North and East Devon Health Authority, ex parte Coughlan [2001] QB 213, departure from a promise requires good reason and proportionate justification. An authority acts unlawfully if it disregards the promise without considering it.
4. Continued retention of the files interfered with the claimant’s Article 8 rights. Retention, independently of disclosure, can constitute an interference with privacy requiring justification.
5. The Data Protection Act 1998 supported the same conclusion. Sensitive personal data had to be processed fairly and lawfully, and personal data could not be retained longer than necessary for the relevant purposes.
6. The Council relied on the public interest in child protection and its later 35-year policy. It had not, however, considered the claimant’s specific circumstances, the earlier considered promise, the absence of continuing concern, or the fact that the investigation had ended without registration. It had therefore failed to carry out the necessary balancing exercise.
7. The Council’s failure to justify departure breached the legitimate expectation and Article 8 rights. The alternative order restraining disclosure or requiring a risk assessment did not need to be considered.