AB v Ministry of Justice

Personal data under the Data Protection Act 1998 requires recorded information relating to an identifiable living individual. A neutral covering communication which merely transmits personal data does not itself become personal data. Subject access requests must be construed according to their real focus, and a request contingent on further particulars may fail to satisfy the statutory requirements. Legal professional privilege depends on the circumstances in which advice was sought and the document was used; privilege did not extend to a copy circulated for an independent non-legal opinion. Under section 13, nominal damage resulting from a contravention may support an award for distress where the distress is causally related to that contravention.

The claimant brought County Court proceedings against the Ministry of Justice concerning alleged failures to comply with several subject access requests under the Data Protection Act 1998. The proceedings were ultimately confined to information concerning the death of the claimant’s wife, including material disclosed late and material initially withheld.

The issues at trial were whether the information was the claimant’s personal data, whether it should have been disclosed in response to the relevant requests, whether legal professional privilege applied to particular documents, and whether the claimant was entitled to compensation for delay and distress.

1. Personal data and requests. Almost all of the disclosed material was the claimant’s personal data under section 1(1). The fourth request, repeated on 1 October 2007 and received on 9 October, was sufficiently wide to encompass it. The first request was principally concerned with communications restrictions and earlier information requests; the second concerned information held by Her Majesty’s Court Service; and the third request, being contingent on further particulars, was not a valid request under section 7(2)(a). The disclosed material was therefore supplied late, contrary to section 7(8).
2. Privilege. The original letter seeking legal advice was privileged. As head of the Coroners’ Section, Robert Clifford had implicit authority to seek advice from the Department’s in-house lawyer. The annotated copy was different: the annotation indicated that it had been supplied to a non-lawyer for an independent opinion. The defendant therefore failed to establish privilege over that version, which contained the claimant’s personal data and should have been disclosed.
3. Neutral covering letter. A letter transmitting other documents was not itself the claimant’s personal data. Although the statutory definition should not be construed narrowly, the letter contained no information relating to the claimant beyond acting as a neutral conduit for enclosed correspondence.
4. Compensation. The claimant had suffered damage through the time and expense incurred in pursuing disclosure, but the unquantified loss warranted nominal damages of £1. He had also suffered distress caused by the delays. Section 13(2)(a) was satisfied because relevant damage had been established, and compensation of £2,250 was awarded for distress.
5. Privacy and orders. The claimant’s and his family’s Article 8 rights justified preserving anonymity and restricting access to identifying material. The defendant was required to retain the disclosed and withheld material until the conclusion of the proceedings and then destroy it pursuant to its undertaking. An application by a third party to inspect the court file was to be made on notice, with identifying and sensitive details removed.