Information Tribunal affirms journalists’ ability to access information under FOIA with consent of data subjects: Jennifer Robinson instructed
In an important decision for journalists, the First-Tier Tribunal has upheld the appeal of Italian journalist, Stefania Maurizi, against a decision of the Metropolitan Police Service to refuse her request for information about WikiLeaks journalists. In finding in favour of Ms Maurizi, the Tribunal settled a general question of law of importance for all journalists: a data subject can give consent to the disclosure of personal information to another person under the Freedom of Information Act (FOIA). Ms Maurizi was represented by Jennifer Robinson of Doughty Street Chambers and Estelle Dehon of Cornerstone Barristers.
As the Tribunal found, individuals are “free, with appropriate consent provided, to rely upon an investigative journalist to seek to obtain their personal data and not be put to the bother of having to make a subject access request.” This affirms that journalists, with consent, can obtain information from public authorities under FOIA that would otherwise be subject to the personal data exemption.
The question arose in the context of Ms Maurizi’s 2017 request to the Metropolitan Police Service (MPS) for information held by it in correspondence with the US Department of Justice (US DOJ) relating to three named individuals who work or have worked for Wikileaks: Joseph Farrell, Sarah Harrison and Kristinn Hrafnsson. Ms Maurizi, an investigative journalist with La Repubblica in Italy, has been reporting on WikiLeaks for over a decade.
Her request followed the revelation in late 2014 that Google had been served with a secret search warrant served by the US DOJ in March 2012, which had required Google to hand over all of the emails of Mr Farrell, Ms Harrison and Mr Hrafnsson. Google had handed over that information, but did not inform them that they had done so until 23 December 2014. When the subpoena became public, concern was raised by WikiLeaks’ US defence counsel and counsel for the American Council for Civil Liberties (ACLU) about the First Amendment concerns raised by handing over information from the accounts of WikiLeaks’ journalists and employees.
Ms Maurizi made the request to the MPS to better understand what role, if any, the UK authorities played in cooperating with the investigation. She obtained and provided to the MPS the specific, written consent of the three named individuals to the disclosure of their personal data to her. The MPS refused to confirm or deny any information was held on the grounds that it would disclose personal data about the three named individuals pursuant to s. 40(5), FOIA and the Information Commissioner upheld the MPS’s refusal.
The MPS argued that it was not appropriate for the FOIA to be used by journalists in this way, even with the explicit consent of the data subjects, because the DPA was the “more appropriate and specific statutory scheme”. The Information Commissioner agreed.
In finding for Ms Maurizi, the Tribunal found (at )
“It was important moreover, in the Tribunal’s view, not to elevate subject access rights over rights to information under FOIA. Individuals should in principle be free, with appropriate consent provided, to rely upon an investigative journalist to seek to obtain their personal data and not be put to the bother of having to make a subject access request. This was not seeking to “circumvent the statutory scheme” as suggested by the Met Police. Both routes were equally valid and there was no suggestion in section 40(5)(b) that subject access data protection rights took precedence where the data involved third party personal data (as opposed to the situation in which the requester was the subject to the personal data, when FOIA makes it clear that the DPA and subject access rights do indeed take precedence – see section 40(1).”
The Tribunal also agreed there was public interest in the MPS confirming or denying the existence of correspondence with the US Department of Justice about the three current and former WikiLeaks journalists:
“Suffice to say, the Tribunal could see that even a confirmation or denial would be of interest to Ms Maurizi and indeed the public in the context of the subpoenas served in the US and the wider issues as to press freedom.”
The MPS have 28 days to confirm or deny whether they hold the requested information.
You can read a copy of the decision by clicking here. And three short videos explaining the significance of the case are available here: