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Michael Durant Refused Landmark Appeal by The House of Lords

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Michael Durant Refused Landmark Appeal by The House of Lords

Michael Durant is out of luck in his quest for a ruling in his favour in the UK courts, the House of Lords said at the end of November 2005. His only route forward is now Strasbourg.

His case as a former Barclays Bank customer is that, following a dispute with the bank, he requested the Financial Services Authority to investigate the dispute. The FSA closed its investigation in 2001. Mr Durant was not informed of the result of the investigation due to confidentiality restrictions. Following an unsuccessful application to the FSA, Mr Durant submitted a subject access request under the Data Protection Act 1998. The request was denied on the grounds that the information was not "personal data" held in a "relevant filing system".

Court of Appeal

The case at Court of Appeal raised several important issues of law concerning the right of access to personal data provided by Sections 7 and 8 of the Act, namely what makes data personal within the meaning of the term personal data and what constitutes a relevant filing system.  The Court of Appeal concluded the following:

  • Personal data, whether held on a computer or on a manual filing system,  must name or directly refer to an individual and must be biographical to a significant extent. This means that the data must go beyond the recording of the data subject's involvement in a matter or event that has no personal connotations (information that affects his privacy, whether in his personal or family life, business or professional capacity), and have the data subject as its focus.  Not all information retrieved from a computer search against an individual's name or unique identifier will constitute "personal data".
  • A relevant filing system must be referenced or indexed enabling the data controller to identify with reasonable certainty and speed the file(s) in which the specific data relating to the data subject is located and to locate the relevant information about him in the file(s) without having to carry out a prolonged search. A manual filing system which requires an individual to "leaf through" multiple documents to find the required data falls outside scope of Act, as it bears no resemblance to a computerised search. This is referred to as "The Temp Test", where a temporary employee with no guidance should be able to find the data with ease. if so the filing system tends to be "relevant".

The result of the Court of Appeal decision is a narrow interpretation of the Act, which has had huge implications for businesses responding to subject access requests, limiting the amount of personal data that companies are required to hand over. But it sets the UK apart from the rest of Europe and creates major inconsistencies in the implementation of directives on Data Protection from Brussels. While a UK business may be content with this ruling, Global and European businesses find themselves back in the situation of confusion that obtained prior to the Data Protection Act 1998 being passed.

This case has caused either relief or consternation in the UK, depending upon the viewpoint. The matter is complex and the UK Information Commissioner summarises the case in a seven page document, and gives guidelines about the interpretation of this rather awkward difference between the UK and the rest of the European Economic Area.

Uncertainty Regarding the House of Lords

Earlier in November 2005 Durant let the world know he was not going to pursue his House of Lords quest for leave to appeal. The reasons cited in the media were lack of funds, but it seems that the petition for leave to appeal found its way to the Lords after all.

Leave to Appeal Refused

Had the House of Lords permitted the appeal, the meaning of 'personal data' would have been up for review. Since refused, the disputed Court of Appeal decision on the definition stands as the law of the UK.

Strasbourg and Brussels

There is a very strong probability that This case will be pursued at Strasbourg. Mr Durant is a tenacious man and feels that the Court of Appeal was wrong. A second probability is that Brussels will require the UK to amend the Data Protection Act 1998 to remove what may become known as "the Durant Anomaly". It is known that Brussels is pressing the UK to create a more "correct" implementation of the directive in Data Protection. This means that organisations should plan for Durant as though it did not exist, for it is likely to be overturned one way or another (0.8 probability).

Strasbourg and Durant - Update 27 February 2006

Michael Durant heads for Strasbourg!

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