SMITH v. THE UNITED KINGDOM
Inadmissible
Josep Casadevall;Nicolas Bratza
The applicant is a British citizen born in 1934 and resident in Uxbridge. He is represented by Mr De Cruz, a solicitor practising in London. In 1988 the applicant was the Managing Director and controlling shareholder of DEL or The Display Electronics Group. At the time DEL was involved in the development of four industrial units in Uxbridge. According to the applicant, an oral agreement was reached in a meeting on 11 January 1988 with Mr G. from Lloyds Bank to the effect that Lloyds would take over the funding of the development and that the applicant’s personal borrowings and DEL’s borrowings would be secured on the development and also by a mortgage on the applicant’s home. According to the applicant, it was also agreed that the short term bridging loan would be replaced by long term mortgage finance once two of the units had been let and two had been sold. Transfers and debits of money, flowing from the agreement, were made on DEL’s account. Lloyds Bank in later proceedings denied the existence of any such oral agreement. Lloyds refused to provide long term financing and in 1996 gave notice that they were calling in their loans. This led to protracted litigation in which the applicant was unsuccessful in his claims against Lloyds which gained possession of his home and, in 2000, made him bankrupt. In late 1998 the applicant traced Mr G, who allegedly disclosed the existence of contemporaneous notes of the meeting in 1988. These notes had never been disclosed in the various proceedings. On 13 September and 29 October 2001, the applicant made application for access to the notes under the Data Protection Act 1998 (“the 1998 Act”), claiming that he was a data subject and that personal data concerning him was either processed or part of a filing system within the meaning of that Act. On 23 February 2005, the High Court refused to order disclosure of the notes. Mr Justice Laddie noted that it was not in dispute that Lloyds held no computerised records relating to the applicant and that any such documents that might be retained were in the form of unstructured bundles kept in boxes. There were, it was accepted, some documents which at least mentioned the applicant within the bundles relating to DEL. The applicant’s counsel had conceded that such files were not sufficiently structured to fall within the scope of "relevant filing systems" and the judge rejected arguments that sought to bring the notes within the scope of the Act by reference to the fact that at one time they might have been subject to word processing or could be rendered into a structured form by means of scanning and processing, relying inter alia on indications in domestic and European materials that only filing systems, and not unstructured files, were intended to be covered by data protection The judge also considered that the notes did not concern "personal data" about the applicant. He cited case-law indicating that not all information retrieved from a search against an individual’s name was personal data; that mere mention of an individual’s name in a document held by a data controller did not mean that the document contained personal data; and that in determining whether information was capable of constituting personal data depended on its relevance or proximity to the data subject and that in answering that question it was relevant to consider whether the information was biographical in a significant sense, whether it had the putative data subject as its focus and finally whether the information affected the privacy of the putative data subject. Applying those principles, it was clear that the documents held by Lloyds and the information contained therein were not personal to the applicant in the relevant sense. The files related to the loans to DEL and the applicant was only mentioned because he acted on behalf of the company. The documents were not biographical about the applicant to a significant extent, dealing with the loan and its terms. Indeed what the applicant was trying to obtain were not documents about himself but documents dealing with the terms of an oral agreement under which Lloyds were to make GBP 500,000 available to DEL. On 18 July 2005, the Court of Appeal rejected his application for permission to appeal. Lady Justice Arden also found that domestic and European legislation did not cover information held in unstructured files as opposed to a processing or filing system. She also rejected arguments that the data were personal to the applicant, noting that if the documents were covered it would mean that whenever an individual was involved in a transaction all the information about the transaction became his personal data. She further referred to judicially-expressed doubts that the Act was an appropriate means of seeking to compel the disclosure of documents which could not be obtained in legal proceedings for the purpose of obtaining documents to use in legal proceedings.