07:19, July 07 108 0 theguardian.com

2017-07-07 07:19:03
Judge's handwritten notes released under UK data laws for first time

A judge’s handwritten notes have been obtained to challenge a ruling for the first time, establishing a far-reaching legal precedent for the right to personal information.

In what appears to be the first successful data request from a courtroom, the Ministry of Justice has handed over confidential material providing an insight into the reasoning behind a judgment.

The former car service manager Alfred Percival, supported by his wife Janice, waged a four-year war relying on powers under the 1998 Data Protection Act (DPA) to acquire notes made by Judge Ian Pritchard-Witts because they disagreed with his 2013 decision rejecting a constructive dismissal claim in an employment tribunal.

The MoJ’s argument that judicial notes should be exempt from subject access requests (SARs) was overruled by the Information Commissioner’s Office (ICO) and the notes were finally handed over in January.

In a letter sent to the Percivals shortly beforehand, an official from the ICO confirmed: “There is no doubt that clarifying the nature of the relationship between judicial notes and the DPA is important … a decision on the relationship is likely to be far-reaching and extend well beyond the particular circumstances of your own case.”

Maurice Frankel, director of the Campaign for Freedom of Information, said: “I have never heard of judges’ notes being disclosed. It’s surprising to me to hear that.”

Alistair Kelman, a former barrister who has been supporting the Percivals, said: “This is a first. A judge acts in a dual role in a case, not just as the judge but also as the person who is transcribing the proceedings.”

The surprise development follows Alfred Percival’s claim for constructive dismissal made against Marshall Motor Group, one of the UK’s largest car dealerships. The 57-year-old, who lives in Ixworth, Suffolk, alleged that he had fallen out with his employer after whistleblowing over health and safety concerns.

When his wife was diagnosed with cancer, he attempted to negotiate an alternative role in the firm to give him more flexible working hours. Marshall argued that Percival had resigned and the dispute did not relate to any alleged public interest disclosures.

Pritchard-Witts and two lay members on the tribunal found unanimously that Percival had resigned, that he was not “constructively unfairly dismissed” and that he was not subject to any “detriment … for any reason of making a protected disclosure”.

Disappointed by the ruling, which he believed did not reflect the evidence given, Percival decided to challenge the decision by a highly unusual route – submitting a subject access request. Under the DPA, any individual can ask to see information held about them subject to certain exclusions.

For several years the Percivals fought a tenacious battle by correspondence with the ICO, MoJ and the senior judiciary, eventually emerging victorious when the ICO last summer agreed that “handwritten notes in the court files will be data for the purposes of the DPA”.

The ICO oversees enforcement of the DPA. Even after it came down in the Percivals’ favour it nevertheless took another six months before the MoJ finally handed over the judge’s handwritten notes.

Janice Percival, 67, who is a bookkeeper, carried out much of the lobbying and letter-writing. “We wanted to establish what had happened,” she said. “Now we can look at Judge Pritchard-Witt’s notes to compare it with the judgment. We are applying to re-open the case but at the moment we haven’t got a lawyer to take it up.”

The MoJ declined to comment about the decision. It suggested that there may have been other, unpublicised, subject access requests for judges’ notes but the terms of the ICO correspondence clearly suggest the Percivals’ case has broken fresh ground and created a precedent.

Commenting to the Guardian on the case, an ICO spokesperson said: “The right of access to your own personal data, known as subject access, is a fundamental and powerful provision of the Data Protection Act.”