This is an interesting subject access case. Warby J rejected overly broad claims, by a firm of private investigators, that the firm should not have to respond to a subject access request, on the basis that all of the information they held would be covered by exemptions, or that that the request was an abuse of process (as it was linked to separate, private, criminal proceedings in Cyprus).
The defendants failed, in part, because they had not tried to sift and analyse the information they held - so that they could not demonstrate that all of the information they held would be covered by an exemption, or that release of the requested information would be likely to cause prejudice.
The decision contains some interesting, more general comments:
- about the way the courts should exercise discretion in subject access cases (pro-data subject unless the defendant can show reasons why discretion should not be exercised); and
- about the approach to cases where subject access requests are used as a way of obtaining advance disclosure of documents (that there is nothing wrong with using the Act in this way).
The case concerned 3 Russian nationals, who had been involved in the same company. One (Alexander Gorbachev) asserted that the others (the claimants) had improperly defrauded him of his shares in the company. Mr Gorbachev instructed investigators (the defendants) in connection with this matter. He also brought a private prosecution against them in Cyprus. The investigators approached the matter in a way which the claimants were likely to consider threatening. The claimants made a subject access request to the investigators. The investigators declined to deal with the request arguing that it was procedurally invalid and that any material they held would be exempt - either on the basis of the crime prevention exemption, or the legal professional privilege exemption. The investigators also invited the court to exercise its discretion not to order them to comply with the access request, on the basis that it was an abuse of process as it was solely being made in connection with the Cypriot proceedings.
Evidence of authority:
Where the request comes from a solicitors' firm, which states that it is instructed by the data subject to make the access request, there will ordinarily be no need to check this assertion of authority.
Crime prevention/detection exemption:
Private persons can rely on the prevention/detection of crime exemption: it is not restricted to public bodies.
However, on this occasion, the defendants failed to demonstrate to the judge's satisfaction, and on the basis of a civil standard of proof, that they were in fact processing the claimant's personal data for this purpose.
They also failed to demonstrate that disclosure of the claimants' personal data would, or would be likely, to prejudice this purpose, as required for the exemption to apply. The defendants were trying to make a blanket claim that, given the nature of their investigations, all the material they held must be exempt: the judge confirmed the approach taken in R (on the application of Alan Lord) v Secretary of State for the Home Department  EWHC 2073, and set out in ICO guidance, that the exemption must be applied on a case by case basis and does not apply to all information held by an organisation as a matter of principle.
Lawyers who claim privilege for documents are, in effect, judges in their own cause (or rather the cause of their clients). For this reason, courts must approach claims of privilege cautiously. The onus is on the person claiming privilege to prove (to a civil standard) that it is likely to apply.
Again, the judge held that the claimants had failed to prove this. They had also attempted to make a blanket claim that all data they held must be privileged, without providing any analysis as to why this should be the case. The judge accepted the claimants' arguments that it was highly unlikely that all of the personal data held by the investigators would be protected by privilege: for example, they would likely have obtained pre-existing documents for analysis, which would not suddenly become privileged.
Irrespective of the points above, the defendants invited the judge to exercise his discretion not to require them to respond to the access request (on the basis that the sifting required would be disproportionate and that the request was made for an improper purpose).
The judge noted that there were two divergent lines of approach as to how discretion should be exercised:
- some comments suggest that the court's discretion was "general and untrammelled" (Durant v Financial Services Authority  EWCA Civ 1746;  FSR 28, but obiter); and
- others suggest that, to remain faithful to the purposes of the Directive, discretion should be exercised "to require disclosure, unless good reason is shown why it should not be disclosed" (part of Ward LJ's reasoning for granting permission for the appeal in Durant v Financial Services Authority, which followed a failed claim in the court of first instance).
On balance, Warby J preferred the second approach - but he noted that he would have found for the claimants on either test.
Warby J rejected claims that analysis of the documents to assess privilege would be disproportionate. He felt this was the kind of analysis that was regularly carried out. He distinguished Dawson-Damer & Ors v Taylor Wessing LLP & Ors  EWHC 2366 (Ch), on the basis that that involved consideration of whether a claim to privilege could be maintained as a matter of Bahamian law, where there was evidence that such law operated differently to English law.
Abuse of process:
The judge also rejected the defendant's argument that the claimants request should be rejected because it was solely made as an (improper) attempt to access material relevant to the Cypriot proceedings which should be handled in the course of those proceedings. The claimants relied on a passage from Durant v Financial Services Authority which suggested that the purpose of s. 7 is not to allow applicants early access to discovery of documents which may assist in litigation. They also referred to cases (such as Dawson-Damer v Taylor-Wessing LLP) which considered whether requests should be refused where there were mixed or collateral motives and where the request would not have been made but for the improper litigation motive.
Warby J did not think that the Court of Appeal comments on this should be treated as authority for the fact that the purpose of a subject access request is relevant to determining whether or not to accept the request. Instead, he referred to an alternate Court of Appeal case, Dunn v Durham County Council  EWCA Civ. 1654, where the Court of Appeal noted that subject access rights would likely be used prior to proceedings and where the Court of Appeal "did not doubt" that an individual would be entitled to do this.
In any event, even if the collateral or mixed motive approach were followed, the judge preferred the claimants' approach: the defendants had made intimidating approaches to them and had also insinuated that the claimants might present a physical threat to their client. In this situation, the claimants would reasonably be concerned about the material held by the defendants and would likely want to check its accuracy (a bona fide purpose).