The parties disputed the functions of the Commissioner in respect of personal data held by the SSHD for which he claimed exemption from disclosure on the ground of national security. The applicant had sought copies of personal data held about himself, and the Secretary had claimed exemption but had said that the Minister would not inform the data subject that he relied upon section 28 and it supplied only redacted information to the Commissioner. The Commissioner said this would remove the subject’s opportunity to appeal, and he served a notice under section 43 on the Secretary. The Minister served a s28 notice, and the appeal to the tribunal was issued, but he then argued that ‘issues of national security are matters for the member states and are therefore accordingly excluded from control under the Directive. Section 28 makes it plain that the question of whether or not national security is engaged in relation to the disclosure of any material is a matter to be determined objectively. Exemption from disclosure either is or is not required for the purpose of safeguarding national security.’
Held: The minister’s argument and appeal was rejected: ‘section 51(1) . . entitles, if not requires, the Commissioner, if he considers it appropriate, to ‘check’ (to use the language of the Directive) whether an exemption under section 28 has been properly claimed. If it has not, it is a necessary corollary that the data controller has not ‘observed’ the requirements of the Act. He has failed to give the data subject access to material which is not exempt by reason of section 28. As the Tribunal has said, the consequence is that the Commissioner is entitled to seek to satisfy himself that the material is indeed exempt under section 28.’ Article 3 did not simply take matters of national security out of the purview of the Directive. If it did, article 13 would have no purpose.
Citations:
[2006] EWHC 2958 (Admin), [2008] 1 WLR 58, [2007] 2 All ER 703
Links:
Statutes:
Data Protection Act 1998 28(4) 51(1), Directive 95/46 EC of 24 October 1995 on the protection of individuals with the regard to the processing of personal data and on the free movement of such data
Jurisdiction:
England and Wales
Information
Updated: 23 March 2022; Ref: scu.246381