Review of complaint about access decision: Appeal by [] against The National Archives' (TNA's) decision that information in the following file constitutes exempt information under the FOI Act; File reference CRIM 1/4140

CRIM 1/4140 - Defendant: WARD, Stephen Charge: Living on the earnings of prostitution

Having examined the decision made with regards to FOI request F0036655, The National Archives is satisfied that the overwhelming majority of closed file CRIM1/4140 is properly exempt under the cited exemption, section 40 (2) (personal information) by virtue of section 40 (3) (a) (i). This file will continue to be withheld, under this exemption.

The information that can be released relates to previously published or non personal information. This includes:

• Copy of the Committal Charges against Stephen Ward: Magistrates court, 9th July 1963
• Today Magazine dated week ending 11 May 1963
• Index to photos and photos, 27th June 1963
• Plan of Stephen Ward's flat
• One additional photograph
• Court correspondence and notes about the administrative preparation - 8 pages
• Notes of television interview with Stephen Ward, 6 June 1963 - 4 pages

This file is to be redacted and the above information opened to the public. The redacted file CRIM 1/4140 will be orderable by 30 January 2014.

The purpose of an internal review is to consider whether the requirements of the Act have been fulfilled. The scope of the review is defined by Part VI of the Code of Practice under s45 of the Act, which can be found at:
www.justice.gov.uk/downloads/information-access-rights/foi/foi-section45-code-of-practice.pdf

Please see below detailed information on your appeal.

Handling
In accordance with The National Archives' FOI appeals procedure your complaint received on 23 December 2013 was passed to me to review. I reviewed the way your original request was handled to satisfy myself that all correct processes were applied.

Received on 8 November 2013, your request was identified as a request for access to closed information and was forwarded to the FOI Centre. I can confirm that I am satisfied that the process from receipt of request, and consultation to response was undertaken properly. You response was issued and received on 21November 2013, within the statutory deadline for responding. (Section 10(4) of FOIA - The National Archives is granted additional time to process such requests in order to allow for this obligatory consultation period- another 10 working days www.opsi.gov.uk/si/si2004/20043364.htm).

Substance of the review

Original decision
Section 40 (2):
I am satisfied that the majority of requested information is properly exempt under section 40 (2) of the FOI Act.

Section 40 (2) relates to the personal information about a 'third party' (that is, someone other than the enquirer), if revealing it would break the principles of the Data Protection Act 1998, or if the person that the information relates to would not have a right to know about it or a right of access to it under that Act (because of its exemption provisions). The Act prevents release of information if it would be unfair or at odds with why it was collected, or if the individual notified the data controller that release would cause major and unnecessary damage or distress.

In considering the release of personal data under the Freedom of Information Act, you also have to consider whether processing this information would breach any of the Data Protection Principles. For The National Archives it is the first principle that is the most crucial in determining whether personal data can be released under FOI.

1. Personal information shall be processed fairly and lawfully and, in particular, shall not be processed unless specific conditions are met

The release must be shown to be both fair and lawful.

During a criminal investigation many people are interviewed and the witness statements that are collected will frequently contain personal data. Often these detail aspects of private lives; of those providing the statement and other third parties and can include sensitive personal data. We can confirm that this is the case with the statements contained in CRIM 1/4140.

Information within the file and statements alleged that individuals were engaged in prostitution, thus it details their sexual lives and personal relationships with third parties and for some women it details abortions they had requested. This information is classed sensitive personal data under section 2 of the Data Protection Act, 1998, specifically sub-sections 2 (a), (e), (g) and (h) - racial/ethnic origin of the subject, physical or mental health or condition, the commission or alleged commission of any offence, and any proceedings for any offence committed or alleged to have been committed, the disposal of such proceedings or the sentence of any court in such proceedings, respectively.

Sensitive personal data & Schedule 3 - Data Protection Act
In assessing whether the release of sensitive personal data is fair and lawful under the first principle of Data Protection Act, you have to show that at "least one of the conditions in Schedule 3 is met." Generally as eight of the ten conditions under this schedule concern disclosure for a stated purpose there would only be two conditions that are relevant to this case.

Condition 1 - Subjects' explicit consent
Condition 5 - The individuals themselves have published the information

As there is no evidence that either has occurred it has been determined that no such condition has been met in this case. http://www.legislation.gov.uk/ukpga/1998/29/schedule/3

The ICO guidance explains that when dealing with sensitive personal data you have to consider both schedules 2(Conditions relevant for purposes of the first principle: processing of any personal data) and schedule 3 (processing of sensitive personal data):

"This means that the information can only be disclosed if to do so would be fair, lawful and meet one of the DPA Schedule 2 conditions (and Schedule 3 conditions if relevant). If disclosure would fail to satisfy any one of these criteria, then the information is exempt from disclosure."

www.ico.org.uk/~/media/documents/library/Freedom_of_Information/Detailed_specialist_guides/personal-information-section-40-and-regulation-13-foia-and-eir-guidance.pdf  

Personal data heard in open court:
CRIM 1/4140 contains some personal and sensitive personal data, which was heard in open court, as its focus is on the Stephen Ward trial (22 July 1963 - 31 July 1963).

The application of the Data Protection Act and principles are not negated by the fact that information has been heard in court. The Information Commissioner has stated that 'the disclosure of personal data may still breach the data protection principles even after it has been disclosed in open court'.
Detailed guidance issued by the Commissioner states that prior to disclosing information, authorities must be mindful of the Data Protection Act's first principle: 'that personal data should be processed fairly and lawfully'. 

This guidance and prior Decision Notices have taken this into account and concluded that previous release in open court does not automatically mean further release under FOIA. The Commissioner has said that: 'the more time that has elapsed since the date of the court case/conviction, the less likely any disclosure of that information will be fair and/or lawful.'

Fair processing
Bearing this guidance in mind, it is clear that any disclosure of personal data has to be assessed against the Data Protection Act and that the focus remains on the issue of fairness to those individuals concerned. Thus we still need to determine whether it is fair to release the information that has been heard in open court as well as the information that may or may not have been heard in court.

To determine if release would be fair to these individuals requires us to consider a number of factors. This includes the context of the information with which we are dealing, the sensitive nature of the information, the expectations of the individuals, the passage of time and ultimately the impact of disclosure on the individuals identified.

Firstly, looking at the nature of the information, it has been determined (as outlined above) the contents of this file includes sensitive personal data. In the ICO FOI Policy Lines on section 40 and fairness they state that "in most cases the very nature of sensitive personal data means it is more likely that disclosing it will be unfair". In this case, we have already identified that the nature of this sensitive personal data is highly personal and would be considered private information.

Secondly when considering whether or not it is fair to release certain information, the expectations of these individuals have to be taken into account especially when dealing with their sensitive personal data.

We have acknowledged that the witnesses provided evidence for the purposes of the criminal proceedings, thus they may have had some expectation that their information was disclosed for these purposes. However it does not necessarily follow that they would have expected that their personal and/or sensitive personal data would have been disseminated more widely under FOIA. Furthermore, we do not have an authoritative list of who provided evidence in court and some witnesses are not named in full. Thus for these witnesses who did not appear in court, or who were not identified they would have a higher expectation that personal data would be protected within their lifetimes; "expectations will be shaped by what an individual is told about how their data will be used"

www.ico.org.uk/foikb/PolicyLines/FOIPolicyPersonalDatadisclosedinopencourt.htm

The sensitive personal data on this file, relates to unsubstantiated allegations of prostitution, references to abortions and details of the sexual life of named individuals. The youngest was aged 18.
Concentrating specifically, on the information about individuals sexual lives, this data "by its very nature… has been determined to be information that individuals regard as the most private about themselves" To release such sensitive personal data regarding someone's private life could be classed as an unwarranted interference with an individual's privacy and thus considered to cause them distress.

"It is accepted that every individual has the right to some degree of privacy and this right is so important that it is enshrined in Article 8 of the European Convention on Human Rights which protects the right to a private and family life."

These individuals have a reasonable expectation of privacy and would anticipate, owing to the nature of the information and the possible distress it may cause them that their information would be withheld. Given this expectation of privacy, disclosure of such personal and private information would be unfair.

www.ico.org.uk/foikb/PolicyLines/FOIPolicyFairness.htm

Thirdly the age of the material and its context need to considered. In this case, we would conclude that the sensitivity of the information and expectations of the individuals has not been diminished by the passage of time. On the contrary, the Profumo scandal, (to which this trial relates) comes with associated connotations. The majority of individuals named in this file were young adults at the time of this trial (youngest aged 18) and therefore it is highly likely that they would be living a rather different lifestyle to the one described in this file. To release information of this nature may be detrimental to their current reputation and social standing and as a result cause them damage and distress. Thus the information potentially remains as sensitive as at the time of trial and it would be greatly unfair to these individuals to disclose this information.

Finally to conclude; we have established that the information on this file is particularly sensitive and private in nature; that there is and remains a reasonable expectation that the information would be protected within the individuals lifetime and that to disclose this information has the potential to cause significant damage and distress to these individuals. Thus the assessment of the personal data contained within CRIM 1/4140 overwhelmingly indicates that disclosure would be unfair to those indentified.

In determining if this information could be released, we looked at whether it would be unfair, as; the ICO states "If the disclosure would not be fair, the information must not be disclosed." Consequently with respect to the first principle (fair and lawful) of the Data Protection Act, 1998 it is our view that to release information of the above character would constitute a breach of the Data Protection Act.

As disclosure of this information would be in breach of the first principle this material is considered exempt under section 40 (2) (by virtue of section 40 (3) (a) (i) of the Freedom of Information Act, 2000.

Additional questions raised in your appeal
You asked for further details on the contents of the closed file - CRIM 1/4140, we have attached to this response a summary list, which including dates for these documents.

Outcome of the review
The internal appeal decision is that the exemption at section 40 (2) (by virtue of section 40 (3) (a) (i)) of the FOI Act applies to the vast majority of information in this file. TNA has thus decided to continue to withhold most of this file under this exemption of the FoIA. The releasable material from with the exempt material redacted will be made available for public viewing from 30 January 2014. Details of how to order this file have been included at the end of this response.

TNA's internal appeals processes have now been completed.  You have the right to ask the Information Commissioner, Wycliffe House, Water Lane, Wilmslow, Cheshire SK9 5AF, to investigate any aspect of your appeal.

How to access this file:
With regard to the information which we have determined can be released, there are various ways for you to access the redacted file.  You are welcome to visit us - we can help you to do the search yourself, and admission is free.  Please visit our website for information regarding our opening times:
www.nationalarchives.gov.uk/visit/times.htm

You may use our online Document Copying Service: www.nationalarchives.gov.uk/recordcopying/  
 
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Yours sincerely,


Helen Potter
Freedom of Information Manager
www.nationalarchives.gsi.gov.uk