The Ministry of Justice (MoJ) has disclosed the handwritten notes made by a judge during an employment tribunal, in response to a subject access request (SAR). This is understood to be the first disclosure of its kind under the Data Protection Act 1998 (DPA).
Having brought and subsequently lost a constructive dismissal claim, in 2014 and 2015 Mr Percival made a series of SARs to the MoJ seeking access to the judge’s notes relating to the employment tribunal.
The MoJ initially resisted the request on the basis that judicial notes should not be disclosed as part of a subject access request. They argued that the Judge's notes were not part of a “relevant filing system” so were not within the scope of the DPA and that the MoJ were not the relevant data controller concerning the notes. Dissatisfied with the MoJ’s response, Mr Percival referred the matter to the Information Commissioner’s Office (ICO) for an assessment under section 42 of the DPA. The ICO did not agree with the MoJ, taking the view that although handwritten notes would not usually be considered personal data for the purposes of the DPA, “handwritten notes in the court files will be data for the purposes of the DPA”. The reasoning was that once the notes were placed on the court files, they were in a system sufficiently structured to be a “relevant filing system”. The ICO also disagreed with the argument put forward by the MoJ that they were not the data controller, deciding that the MoJ became the data controller in relation to the notes as soon as they were included in the court file.
Accordingly, the ICO recommended that all personal data (including the Judge's handwritten notes) should be provided. The judge’s notes were eventually released to Mr Percival in January 2017.
It is reported that the ICO letter to Mr Percival stated “there is no doubt that clarifying the nature of the relationship between judicial notes and the DPA is important … a decision on the relationship is likely to be far-reaching and extend well beyond the particular circumstances of your own case.”
It is yet to be established whether the decision is to prove itself to be far-reaching but it is highly likely that it will result in an increase SARs being made to the courts by unsuccessful litigants. This also raises the question of how this may affect judges generally and how they choose to record their thoughts when presiding over a matter in future.