The Ministry of Justice has released a judge's handwritten notes to a claimant in order to challenge a ruling. This appears to be the first successful data request from a courtroom. 

A judge’s handwritten notes have been obtained to challenge a ruling, establishing a legal precedent for the right to personal information. In this case, the claimant made a subject access request (SAR) for the judge's notes in order to show that the notes disagreed with a judgement made in 2013 rejecting a constructive dismissal claim in an employment tribunal.

The law

Under Section 7 of the Data Protection Act 1998 (DPA), an individual can make a SAR to see a copy of the information an organisation holds about them. They are entitled to be:

  • told whether any personal data is being processed
  • given a description of the personal data, the reasons it is being processed, and whether it will be given to any other organisations or people
  • given a copy of the information comprising the data and given details of the source of the data.

An individual is entitled only to their own personal data, but not to information relating to other people.

Section 47 DPA allows a request to be made to the Information Commissioner by or on behalf of any person who is, or believes himself to be, directly affected by any processing of personal data for an assessment as to whether it is likely or unlikely that the processing has been or is being carried out in compliance with the provisions of the DPA.

The facts

Initial facts

A former car service manager, Mr Percival, claimed for constructive dismissal against Marshall Motor Group. When his wife became ill, he had attempted to negotiate an alternative role in the firm to give him more flexible working hours. Marshall argued that Percival had resigned and the dispute did not relate to any alleged public interest disclosures.

Judge Ian Pritchard-Witts and two lay members on the tribunal found unanimously that Percival had resigned, that he was not “constructively unfairly dismissed” and that he was not subject to any “detriment… for any reason of making a protected disclosure”.

Disappointed by the ruling, which he believed did not reflect the evidence given, Percival decided to challenge the decision by making various SARs to the Ministry of Justice (MoJ) between 2014 and 2015.

The subject access requests

The requests extended to any hand-written notes taken by relevant judges and lay members which were held by the MoJ. Dissatisfied with the response from MoJ, Mr and Mrs Percival asked the Information Commissioner’s Office (ICO) to conduct an assessment.

Key findings

MoJ’s response to the assessment was that:

  1. the notes did not form part of a "relevant filing system" and therefore did not fall within the scope of the DPA
  2. it was not a relevant data controller in respect of the notes
  3. in any event the notes should not be disclosed.

In response to point one, the relevant filing system, the ICO concluded that ‘in the majority of cases, handwritten judicial notes, recorded in a judge's notebook and retained by the judge are unlikely to form part of a structured filing system and therefore "will not fall within the definition of "data"."

However, as soon as the notes are placed onto a court file, they become part of a relevant filing system. This was based on the assumption that "court files will be structured according to the specific case, which will include reference to the data subject". When handwritten notes are added to the court file, they become part of the formal or official record, therefore falling under the definition of ‘data’.

The ICO also concluded that MoJ had assumed the role of data controller of the notes when they were added to the court file. The ICO then went on to look at the obligations of a data controller under section 7 DPA. It took the view that compliance with section 7 was important in light of the following obligations on MoJ, as the data controller:

  • to keep data no longer than necessary
  • to keep data secure
  • to process data in accordance with data subjects' rights under the DPA (including SARs).

The ICO recommended that MoJ should review the contents of the court file to ensure that the Percivals were provided with all the data to which they were entitled.

Commentary

This case sets a precedent for the right to personal information in that it is the first time a request for a copy of a judge's handwritten notes for this purpose has been successful. This case is the latest in a string of developments regarding SARs following two major Court of Appeal judgments published in early 2017: Dawson-Damer and others v Taylor Wessing LLP and Ittihadieh v 5-11 Cheyne Gardens RTM Company Ltd and Others. The ICO have since updated their data subject access code of practice (PDF) to reflect these developments.