Robin Simon Graham Makin (formerly known as X) v The Transcription Agency LLP & Anor

The judicial exemption in para 14 of Part 2 of Schedule 2 to the Data Protection Act 2018 is broad. It covers personal data processed by judges in the course of all judicial functions, not only judgment writing or decision-making. It may also cover associated processing by a transcription provider where that processing is an adjunct to judicial processing.

The exemption is not a blanket exemption for judges. Its application depends on the statutory conditions. A court hearing a subject-access claim may inspect allegedly exempt material in closed session, seek clarification from the party relying on the exemption, and adopt safeguards to minimise unfairness. The burden remains on the controller to prove the exemption, but it may be discharged by circumstantial evidence and reasonable inference.

The claimant brought proceedings under the UK GDPR and the Data Protection Act 2018 against a transcription provider and a High Court judge. He challenged refusals to provide personal data requested by subject access requests.

The defendants relied principally on the judicial exemption in para 14 of Part 2 of Schedule 2 to the Act. The claimant also disputed the procedure for examining allegedly exempt material and argued that the judge had responded to his request outside the required period.

The court therefore considered the scope of the judicial exemption, whether closed inspection was permissible, whether the withheld data fell within the exemption, and whether the judge’s response was timely.

1. Scope of the exemption. The claims were dismissed. Parliament used broad language in para 14(2) of Part 2 of Schedule 2 to the Data Protection Act 2018. “Acting in a judicial capacity” is not confined to producing judgments or making decisions. It extends to all judicial functions. The broad interpretation is consistent with the protection of judicial independence and with the approach to courts acting in a judicial capacity under the EU GDPR.
2. Processing connected with the production and approval of court transcripts was judicial processing. The first defendant’s associated processing was an adjunct to that judicial processing. Data relating to the claimant’s costs proceedings, transcript requests and related complaint remained within the exemption. The data did not lose that character because the claimant complained about the judge’s conduct or characterised some material as administrative.
3. Closed procedure. Section 167 of the Data Protection Act 2018, read with the statutory scheme and the right to an effective remedy, impliedly empowered the court to inspect allegedly exempt data, obtain necessary clarification, and do so without the claimant and his representatives present. The court adopted a procedure based on closed sessions, with a gist of the closed material and other safeguards to minimise prejudice.
4. Proof and application. The burden remained on the defendants. It did not require a witness statement from the judge. The court could rely on the judicial context, circumstantial evidence and reasonable inferences. On the open and closed evidence, the judge had processed the data in a judicial capacity and the transcription provider had processed it only as an adjunct to that activity. Alternatively, disclosure would have been likely to prejudice judicial independence.
5. Timing and other issues. The judge received the subject access request when it reached her, rather than when it arrived at the Royal Courts of Justice. The claimant therefore failed to prove delay. Even if the response had been two days late, relief would have been refused because any breach was trivial and relief would serve no purpose. The first defendant was typically a data processor and any atypical processing was trivial. The claims against both defendants were dismissed.