: Re: Public Interest Immunity
Public interest immunity is not particularly aimed at
protecting individuals. It is also used to protect high level
(or sometimes, as the Scott Inquiry showed, low level) policy advice;
the work of the security services; international relations; the flow
of information from confidential informants to regulatory bodies,
etc.
It relates purely to disclosure for the purposes of legal
proceedings. Eg where an application for discovery is made, the
public body can ask the court not to order disclosure of particular
information, on the grounds that to do so would be injurious to the
public interest. The court balances the public interest in
non-disclosure of that information against the need to disclose for
the purpose of the administration of justice.
If a data protection case against, say, a police force comes to
court, and the plaintiff applies for discovery of police intelligence
files, the police might ask the court to refrain from ordering
disclosure on grounds of public interest immunity.
Other than that PII is probably not relevant at all to subject
access. Section 27(5) of the DPA 1998, explicitly provids that
the subject information provisions take precedence over "any
enactment or rule of law" restricting disclosure or authorising
withholding of information.
This isn't inconsistent, since the concerns that might prompt a
PII claim in legal proceedings are already addressed in the subject
information exemptions in Part IV of the Act (national security, law
enforcement, protection of regulatory functions etc) or the
provisions protecting the identity of sources in 7(4).
The only basis of a PII claim not obviously dealt with in the
exemptions is policy advice, presumably because policy advice is
unlikely to consist of personal data.
Maurice Frankel
At 4:57 pm +0000 16/3/00, Ian Welton wrote:
Subject Access and Public Interest
Immunity (PII)
Has anybody been involved in, any
interest in, or any knowledge of the balances in this area?
PII is where the public interest is
believed to be served by maintaining the confidentiality/secrecy of
particular articles or documents. It is commonly used to
protect persons in vulnerable circumstances.
Where a data subject requests access
they have an entitlement which "should prevail over any
provisions to the contrary contained in any other acts statutory
instruments or rules of law." (The Guidelines. Third Series.
November 1994. Section 2.38.) This gives rise to the
circumstance that where a claim of PII is made for a document(s) and
a subject access request is made, the reply must contain the
document(s) covered by PII.
The existence of PII appears to be to
protect individuals. Subject Access does not allow access to
data relating to other individuals without their permission,
and as such PII appears to be incorporated within the data
protection regime. e.g. A person is protected within the
subject access regime because their information cannot
be disclosed to others without their permission.
There appear to be many arguments and
counter arguments in this stance. An informed debate would be
most welcome.
Ian Welton
Force Data Protection
Officer
Nottinghamshire Police
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Maurice Frankel
Campaign for Freedom of Information
Suite 102, 16 Baldwins Gardens
London EC1N 7RJ, UK
Tel: 0171 831 7477
Fax 0171 831 7461
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website: http://www.cfoi.org.uk
