Propping open the gate

FOIMan discovers that the government has an answer to ‘legitimate’ concerns over the GDPR and FOI.

One of the concerns of the Information Commissioner and many observers in relation to the General Data Protection Regulation (GDPR), is that it could potentially lead to less information about individuals being disclosed under FOI. Obviously protecting personal data is important but it shouldn’t stop legitimate public debate around things like MPs’ expenses or council Chief Executives’ pay.

The reason this is an issue is that the s.40 exemption for personal data – or at least the part of it that is most often relevant – revolves around the data protection principles set out currently in schedule 1 of the Data Protection Act 1998 (DPA). The first and most relevant of these says that data must be processed fairly and lawfully. In determining whether a disclosure of information is lawful, authorities have to consider whether it is justified by reference to a condition in schedule 2 of DPA. The condition that most often applies to FOI disclosures is that there is a legitimate interest in disclosing the information that can only be met by the disclosure. This has to be balanced against the rights of the individual. It is this condition that has led to lots of personal information about pay, expenses and so much besides entering the public domain.

The problem is that whilst GDPR more or less replicates the first principle, and the conditions as well, it explicitly says that public authorities can’t use the legitimate interests condition. In other words, potentially there could be no legal mechanism to justify disclosures of personal information in the public interest.

Schedule 18 of the Data Protection Bill 2017, the first draft of which was published yesterday, addresses this by the simple expedient of saying that as far as FOI is concerned, the GDPR bar on public authorities using legitimate interests to justify use of data can be ignored. If this survives the passage of the Bill, the gateway for lawful disclosures of personal data under FOI will remain open. Which is good news for public sector accountability.

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