Hlth143 Information relating to 4 named persons

20 April 2012

Dear ,

Request for Information - reference ATI 5955

I wrote to you on 28 March following your request for information. In your request you asked for information relating to the case of W and X & Y and Z

I have decided that the information you have requested is exempt from disclosure under section 40 of the FOIA.

The FOI Act provides a general right of access to information held by a public authority. We are mindful that our response to requests for information should be purpose and identity blind, the identity of the applicant not being a factor. Therefore, we are obliged to handle your request in the same manner as if it were made by any other member of the public seeking the same information.

Section 40 of the FOIA sets out an exemption from the right to know if the information requested is personal information protected by the Data Protection Act 1998 (DPA).  We have considered whether your request for information relating to the case of W and X &Y and Z contains information that amounts to the personal data of a third party and whether releasing it would be in breach of the DPA.

Personal data is defined in Section 1(1) of the DPA as:

“personal data” means data which relates to a living individual who can be identified

from those data; or

from those data and other information which is in the possession of, or is likely to come into the possession of, the data controller.

We have concluded that the information requested contains third party personal data.  Under Section 40(2) of the FOI Act, personal data is exempt from release if disclosure would breach one of the data protection principles.  We consider the first principle to be most relevant in this instance.

The first data protection principle

This states:

Personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless—

(a) at least one of the conditions in Schedule 2 is met, and (b) in the case of sensitive personal data, at least one of the conditions in Schedule 3 is also met.

Having carefully considered our position, we consider that condition 6(1) of Schedule 2 is of primacy in this case.  This applies where

“the processing is necessary for the purposes of legitimate interests pursued by the data controller or by the third party or parties to whom the data are disclosed, except where the processing is unwarranted in any particular case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject.”

For the purpose of ‘fair’ processing, the Information Commissioner’s Office (ICO) has given guidance on the factors that may be taken into account in determining whether or not it would be fair to pass on the information without consent.  This is set out in their “Freedom of Information Act Awareness Guidance No. 1”, dated November 2008.  

The Guidance states that, for practical purposes, disclosure will generally be ‘fair’ if condition 6 of Schedule 2 has been satisfied.  This is because a general consideration of fairness will involve balancing very similar issues to those within the condition.  Following the Information Tribunal decision in Corporate Officer of the House of Commons v Information Commissioner and Leapman, Brooke and Thomas (upheld on appeal to the High Court), the ICO has recommended that public authorities approach condition 6 as a three part test.

1. There must be a legitimate public interest in disclosure.
2. The disclosure must be necessary to meet that public interest.
3. The disclosure must not cause unwarranted harm to the interests of the individual.

With regard to part 1 and 2, I have no evidence to suggest that there is any public interest in disclosure of personal information about this case.

With regard to part 3, I have concluded that releasing the information would be unfair because it could have unjustified adverse effects on the individuals concerned. For this reason, we believe that processing this data would breach the first data protection principle and so it is being withheld under section 40 of the FOI Act.

If you believe that I have not followed the relevant laws, or you are unhappy with this response, you may request an internal review by writing to:

Catrin Williams
Executive Director
CAFCASS Cymru
Sarn Mynach
Llandudno Junction
Conwy
Ll31 9R3

When dealing with any concerns, we will follow the principles set out in the Welsh Government’s Code of Practice on Complaints which is available on the internet at www.wales.gov.uk or by post.

You also have the right to complain to the Information Commissioner. Normally, however, you should pursue the matter through our internal procedure before you complain to the Information Commissioner. The Information Commissioner can be contacted at:

Information Commissioner’s Office
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF

Tel: 01625 545 745
Fax: 01625 524 510
Email: casework@ico.gsi.gov.uk

Also, if you think that there has been maladministration in dealing with your request then you may make a complaint to the Public Services Ombudsman for Wales who can be contacted at:

Public Services Ombudsman for Wales
Ffordd yr Hen Gae
Pencoed
Bridgend
CF35 5LJ

Yours sincerely,

Central Support Team
CAFCASS Cymru
Welsh Government