The beginning of July saw a data protection decision which received little immediate commentary in the legal press, but which is likely to have far reaching consequences for future cases. In response to a request from Alfred Percival for a judge's handwritten notes, created during Mr Percival's Employment Tribunal hearing, the Information Commissioner's Office (ICO) concluded that these notes were liable to be disclosed to Mr Percival as part of his data subject access request. This is being reported as the first disclosure of its nature under the Data Protection Act 1998 ("DPA").
The ICO found that the notes constituted "data" under the DPA because the notes were "recorded as part of a relevant filing system" once they had been transferred to the court file, as the court files were structured according to the specific case and data subject.
The ICO did state that, in the majority of cases, handwritten judicial notes, recorded in the judge's notebook and retained by the judge, were unlikely to form part of "a structured filing system" and so would not meet the definition of "data".
It drew a distinction between informal, handwritten notes, used to reach a decision, which would not be "data" under the Data Protection Act 1998, and formal notes, used as a record of the proceedings, which are added to the court file and so constitute "data".
As the judge's notes had been added to the court files and the Ministry of Justice decides how these files are structured, managed and accessed, the ICO concluded that the MoJ was the data controller for the information. The ICO further believed that the MoJ determined the purpose for which, and the manner in which, the personal data contained in the court files is processed.
This conclusion suggests that the formality of the notes, rather than whether specific information relating to an individual is readily accessible, is the basis of the "relevant filing system" test. Rather frustratingly, the ICO failed to publicise its core reasoning for reaching its conclusion, including its explanation as to why informal notes would not constitute "data". The ICO also failed to comment on any policy implications of its decision or public interest justifications for the notes' disclosure.
This decision provides grounds to request a judge's notes as part of a data subject access request. It also presents a curious practical issue for judges as to how they manage and express themselves in their notes. It remains to be seen if this conclusion results in an increase in unsuccessful litigants submitting data subject access requests to the courts.
The ICO declined to take enforcement action against the MoJ, but did recommend that the MoJ ensures that that Mr Percival is provided with all data to which he is entitled.