Successful application by a Category A prisoner for disclosure of confidential prison reports pursuant to s.7 Data Protection Act 1998.Application by a Category A prisoner ('L') for judicial review of decisions not to disclose Category A reports prepared by prison staff as part of the annual review of his security classification. Ordinarily prisoners were not shown Category A reports. The practice was for a document summarising their content, known as the "gist", to be prepared and copied to the prisoner. The practice stemmed from R (On the application of Doody) v Secretary of State for the Home Department (1994) 1 AC 531 and was endorsed in R (On the application of Duggan) v Secretary of State for the Home Department (1994) 3 All ER 277 and R v (On the application of McAvoy) v Secretary of State for the Home Department (1998) 1 WLR 790. The purpose of the gist was to preserve the anonymity of the report writers while enabling the prisoner to make effective representations. A gist was prepared in June 2001 for L's annual review in autumn 2001. The gist said that the reports stated that there was no evidence that L's security category should be downgraded. L sought to compel disclosure of the Category A reports under s.7 Data Protection Act 1998. By consent order under s.15(2) of the Act, the reports were disclosed to the court. The gist was based on six reports. Three recommended against recategorisation but two recommended in favour of it. The other expressed no view on the point. The secretary of state argued that the gist, although possibly misleading, was fair because the overall prison recommendation and governor or deputy governor's assessment was given more emphasis in the gist than the views of individuals. The secretary of state relied on ss.7(4) and 29 of the Act as permitting non-disclosure to protect the identities of the authors of the reports and, in any case, where disclosure would be likely to prejudice the prevention of crime and the apprehension of offenders.HELD: (1) The gist did not comply with the requirements laid down in Duggan (supra) and McAvoy (supra). It was not satisfactory or fair. (2) The prisoner was entitled to see the gist of all the reports so that he knew of any matter of fact or opinion relevant to his categorisation, otherwise he would not be able to make worthwhile representations. A gist, which concealed that the views were not unanimous and that some views were favourable, was not fair. The gist failed to reveal the divergence of opinion and failed to provide the gist of each of those divergent views. The gist should state whether the views expressed were unanimous, should indicate the views for and against, and should set out the gist of each report. (3) The words "in any case" in s.29(1) of the Act were to be read as meaning "in any particular case", so that it was for the data controller, if he wished to rely on the exemption in s.29(1), to show that one of the statutory objectives was likely to be prejudiced in the particular case in which the question arose. (4) The word "likely" in s.29(1) connoted a degree of probability where there was a very significant and weighty chance of prejudice to the identified public interests. The degree of risk had to be such that there might very well be prejudice even if the risk fell short of being more probable than not. (5) Although there would be cases in which the secretary of state would be able to rely on s.29 as justifying less than complete disclosure, s.29(1) could not support a policy of blanket non-disclosure. The secretary of state could not rely on s.29 in this case. (6) There would be cases in which the secretary of state would be able to rely on s.7(4) as justifying less than complete disclosure, but that section could not support a policy of blanket non-disclosure. Section 7(4)(b), like s.29, required a more selective and targeted approach to non-disclosure based on the circumstances of the particular case. The secretary of state could not rely on s.7(4) in this case. (7) The secretary of state could not rely, under s.8(2)(a), on the administrative burden as a reason for avoiding provision of information that neither s.29(1) nor s.7(4) exonerated him from disclosing. (8) L had established his prima facie right, under s.7(1), to disclosure of all the Category A reports in full and unredacted. The secretary of state failed to establish any basis for non-disclosure and in all the circumstances the court would exercise its discretion under s.7(9) in favour of L.Application allowed. Disclosure granted.

[2003] EWHC 2073 (Admin)

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