In this case the Upper Tribunal (Administrative Appeals Chamber) has upheld the First-tier Tribunal (Information Rights)'s decision ordering the Information Commissioner's Office (ICO) to disclose the names of the journalists referred to in its "What price privacy" report. The ICO collected a list of names of journalists during a dawn raid on the home of private investigator Steve Whittamore in 2003. These journalists had instructed investigators who had been involved in the illegal trade of personal information.
The respondent in the case sought disclosure of those names under a Freedom of Information (FOI) request. The ICO refused the request, which was upheld by the Information Commissioner. The First-tier Tribunal (General Regulatory Chamber) determined that some of the names should be disclosed. The Upper Tribunal (Administrative Appeals Chamber) upheld the First-tier Tribunal's decision, as there had been no error of law in its decision that the information in issue was not 'sensitive personal data' within the meaning of the Data Protection Act 1998 and that its disclosure was for a legitimate purpose, rather than an unwarranted intrusion into the journalists' privacy rights.
The First-tier Tribunal had also not erred in its application of the balancing of interests. It had concluded that any damage to the journalists' reputational rights was justified as they would be subject to legitimate criticism for using the investigator's services. Consequently although the journalists had a legitimate interest in protecting their reputational rights, that interest did not carry significant weight. The Upper Tribunal found that the First-tier Tribunal had approached the balancing exercise with exemplary care as illustrated by the fact that it had ordered the disclosure of many, but not all of the names of the journalists, and had issued a preliminary decision and interim ruling.
This highlights the notion that organisations need only consider the immediate context of the data to determine whether it is personal or sensitive personal data. Although the names of the journalists was classed as personal information it was seen not to be sensitive information and in retrospect the names in some contexts were publicly available and in the public domain due to the nature of the journalism profession. The approach going forwards as highlighted by Judge Wikeley in the judgment is that a piece of non-sensitive personal data should in and of itself be treated as ordinary personal data and not sensitive personal data even if it can be considered sensitive personal data when matched together with a piece of sensitive personal data.