Stephenson, R (on the application of) v Secretary of State for Justice

Procedural fairness requiring access to documentary evidence does not ordinarily require the recipient to receive and retain a permanent copy. Access is sufficient where the person can inspect the documents and make effective representations.

Under sections 7 and 8 of the Data Protection Act 1998, a data subject who makes a proper request is generally entitled to a copy of personal information in permanent form, subject to the statutory qualifications. For documentary information, this ordinarily means a copy which the recipient can keep. The data controller may require a reasonable fee and may retain possession of the copy where lawful.

The claimant, a prisoner serving an indeterminate sentence, was awaiting consideration by the Parole Board. He was repeatedly permitted to inspect his prison dossier and was given access to it in his cell, but was refused a copy to retain unless he paid a fee for copying.

He sought judicial review on two grounds. First, he argued that fairness under articles 5 and 6 of the European Convention on Human Rights and the common law required provision of a permanent copy. Secondly, he relied on sections 7 and 8 of the Data Protection Act 1998. The issues were whether inspection satisfied the fairness obligation and whether the Act required a copy of the dossier in permanent form.

1. Fairness claim dismissed. The claimant had been allowed to inspect the dossier whenever he requested access, for sufficient time to read it and make representations. He did not identify any undisclosed material or any inability to comment effectively. The common-law fairness obligation therefore required access, not provision of a copy for permanent retention. The observation in AF v Secretary of State for the Home Department [2009] 3 WLR 74 that a person should have access to documentary evidence did not establish an entitlement to receive a free copy.
2. Data Protection Act 1998. Where a request is plainly made under section 7, the prison authorities must communicate the personal data in an intelligible form. Section 8(2) requires the information to be supplied in permanent form, subject to the statutory provisos. For documentary information, that ordinarily requires supplying a copy of the dossier in a form which the prisoner can keep.
3. The obligation is subject to the right under section 7(2) to require a fee. On these facts, requiring payment of the economic copying cost was not disproportionate, given that the claimant’s legal representatives had received a copy without charge and he had repeatedly been given access. The Act did not prevent prison authorities from taking possession of the copy and keeping it safe. The claimant could ordinarily take it away on release, subject to matters not decided.
4. The claim was dismissed. Although the authorities had wrongly demanded the fee under the Prison Service Order, the claimant had declined to pay it, so that error had not caused the alleged unlawful refusal to provide a copy under the Act. Detailed assessment of the claimant’s publicly funded costs was ordered.