UKIP v Information Commissioner (information notice) [2019] UKUT 62 (AAC)

UKIP v Information Commissioner (information notice) [2019] UKUT 62 (AAC) concerned an appeal by the United Kingdom Independence Party Ltd against a decision of the First-tier Tribunal dismissing its challenge to an information notice issued by the Information Commissioner under section 43 of the Data Protection Act 1998. The Upper Tribunal (Judge Nicholas Wikeley) dismissed the appeal, holding that the First-tier Tribunal’s decision involved no material error of law.

The Information Commissioner had launched an investigation in 2017 into the use of data analytics for political purposes, as part of which she sent all major political parties a series of eleven questions about their data processing practices on 7 August 2017. The questions covered the types of personal data held, how and where it had been processed, sources of data, data-sharing arrangements, data from social media, analytics techniques employed, and specific services provided by named third-party contractors. UKIP was included in the investigation because it had had an MP elected in the 2015 General Election. The Commissioner initially requested a response by 25 August 2017, later extended to 15 September 2017.

UKIP did not respond by the deadline despite reminders. Mr Adam Richardson, the Party Secretary, eventually replied on 18 September 2017 with a brief and incomplete response running to under two pages. The answers were terse and unhelpful; for example, the response to the question about whether personal data was currently being processed consisted of a single sentence. More troublingly, some answers appeared inconsistent with publicly available information on the Electoral Commission’s register of spending and donations, much of which had itself been supplied by UKIP. The response to a question about payments to Constituency Polling Ltd was nil, when the register showed nearly £4,000 had been paid in April 2015. The answer regarding Vote Leave was “militantly nil”, yet the register recorded several modest payments in April and May 2016.

On 11 October 2017 the Commissioner issued an information notice under section 43(1)(b) of the Data Protection Act 1998. The notice explained that she reasonably required information to determine whether UKIP’s use of personal data during the General Election campaign complied with the data protection principles. It stated that UKIP’s responses required further clarification and that more detailed and definitive responses were needed, including clarification of discrepancies with Electoral Commission data. The notice required UKIP to provide specified information within thirty days.

UKIP appealed to the First-tier Tribunal on 1 November 2017. Mr Richardson expressed disappointment that the Commissioner had issued a formal notice with the threat of criminal sanctions, suggesting that a simple letter seeking clarification would have sufficed. He emphasised that UKIP was a small, modestly funded organisation with largely part-time staff and limited resources.

The Tribunal initially adjourned the appeal on 20 March 2018, issuing directions that required the Commissioner to reconsider the wording and details of the information notice or explain why she had declined to do so. The Tribunal acknowledged that UKIP’s answers were brief and appeared incomplete or possibly inaccurate, but found the information notice unclear as to scope, referring to undocumented sources and containing inaccuracies. The Tribunal considered it unfair to decide the appeal in those circumstances and gave UKIP a further opportunity to provide the requested information.

The Commissioner responded that she was unable to revise the information notice because, applying the reasoning in Information Commissioner v Malnick and ACOBA [2018] UKUT 72 (AAC), she was functus once an information notice had been issued and could not revisit or revise it. She argued that the Tribunal had to determine the appeal as it stood, if necessary by substituting such other information notice as it saw fit under section 49(1) of the 1998 Act.

The Tribunal reconvened on 20 June 2018 and dismissed the appeal. It found that UKIP’s expressed intention to provide information and co-operate was at odds with the information actually provided, which was brief, incomplete and possibly inaccurate. The Tribunal rejected UKIP’s submission that the notice contained deficiencies placing it outside the statute. It accepted the Commissioner’s explanation that the spreadsheet information came from the Electoral Commission website and was publicly available, and that UKIP should have had records of all donations and expenditure since these had to be provided to the Electoral Commission. The Tribunal concluded that the notice was clear and had been issued because of UKIP’s failure to respond adequately to the Commissioner’s earlier letter. The reasons advanced by UKIP did not provide grounds for allowing the appeal.

UKIP sought permission to appeal to the Upper Tribunal, advancing three main grounds: that the Tribunal had failed to consider material submissions and made errors of fact; that the final decision was legally irrational given the Tribunal’s earlier remarks on adjournment; and that the Tribunal had acted ultra vires in issuing its adjournment directions. Judge Wikeley granted permission to appeal, expressing provisional concerns about whether the Tribunal had adequately explained its approach to the exercise of discretion under section 49(1)(b) and whether the relevant timeframe for the information notice was sufficiently clear.

At the oral hearing before the Upper Tribunal on 30 January 2019, Mr Richardson for UKIP refined the grounds of appeal into four heads: errors relating to the Commissioner’s exercise of discretion, the scope of the notice, the timeframe of the notice, and irrationality. The Upper Tribunal considered these submissions together with detailed arguments from Mr Christopher Knight for the Commissioner.

On the scope of the information notice, Judge Wikeley rejected Mr Richardson’s characterisation of the Commissioner’s approach as demanding “all your data” from political parties indiscriminately. The information notice made clear that the investigation concerned the use of data analytics for political purposes and extended beyond political parties to data companies and social media platforms. UKIP was included because it had an MP elected in 2015, making it a significant political actor. The notice explained that further clarification was needed because UKIP’s initial responses were inadequate and did not square with publicly available data. The first five paragraphs of the notice, taken together, were sufficient to comply with the requirement in section 43(2)(b) for a statement explaining why the specified information was relevant to determining compliance with data protection principles. UKIP was not being asked for all its data but to answer specific questions about its use of data. These were requests for “specified information” within the meaning of section 43(1A). Any deficiency in the Tribunal’s reasoning on this point was not material to the outcome.

Regarding the timeframe, Judge Wikeley acknowledged that the drafting was not ideal. Paragraphs 2 and 3 of the notice referred specifically to the 2015 General Election, which might suggest the inquiry was confined to that period. However, paragraph 3 also used the present tense, asking whether UKIP’s use of personal data “complied/complies” with the principles. The opening paragraph contained nothing to suggest a time-limited investigation. Paragraphs 4 and 5 similarly used the alternative formulation “has complied or is complying”. The first ten questions in Annex 1 were expressed in the present tense or past and present tense in the alternative. The specific funding questions in the final bullet point each had their own timeframe, not coincident with the 2015 General Election. On a fair and objective reading taken as a whole, the information sought was plainly not confined to the 2015 election but related to ongoing processing of personal data for political purposes. The Tribunal’s reasoning on timing was brief but any deficiencies did not amount to material error of law. The notice was demanding but the proper functioning of the political process in a democratic society may require regulators to ask searching questions about the use of personal data by key players over time. An information notice should not be read as though it were a criminal indictment.

As to the exercise of discretion, Judge Wikeley rejected the argument that the Commissioner should simply have written another letter seeking clarification rather than issuing a formal notice. The reality was that UKIP had been asked clear questions, its answers arrived late and were brief and unsatisfactory, and were inconsistent with publicly available information UKIP itself had previously supplied. UKIP’s response gave the clear impression it was not taking the request seriously. The Tribunal had noted that the notice was issued following an inadequate initial response, had recognised that the Commissioner was exercising a discretion, and by necessary implication had not considered that she ought to have exercised her discretion differently. UKIP’s lack of effective leadership or organisational challenges could not constitute a valid defence to an information notice; indeed, these factors might support the Commissioner’s decision to issue a formal notice to emphasise the seriousness of the issues at stake. The Tribunal’s reasoning, though perhaps sparse in places, was sufficient in the circumstances.

On irrationality, Mr Richardson pointed to the Tribunal’s initial description of the notice as “unclear as to its scope” and containing “inaccuracies”, contrasted with its final characterisation of the notice as “clear”. Judge Wikeley held that any alleged inconsistency evaporated on closer scrutiny. The Tribunal had been expressing an initial and provisional view when it adjourned. In its final decision it explained that it had initially been confused about apparent discrepancies but accepted the Commissioner’s subsequent explanation. The Tribunal was entitled to change its mind on the evidence before it. This was ultimately a question of fact for the Tribunal. The ground amounted to a reasons challenge but the Tribunal’s reasoning, though sparse, was sufficient given its findings about the deficiencies in UKIP’s original response.

Judge Wikeley also considered, albeit without full argument, submissions from Mr Knight regarding the effect of Malnick on the Commissioner’s section 43 jurisdiction. The logic of Malnick suggested that an information notice exhausts the Commissioner’s functions in respect of that particular matter and she cannot thereafter revise its terms, though she may cancel a notice under section 43(9). This principle applied if anything more strongly in the context of information notices because non-compliance may attract criminal penalties under section 47 and the principle against doubtful penalisation would imply the Commissioner cannot move the goalposts after issue. Moreover, elsewhere in the 1998 Act express provision was made for variation of notices, such as monetary penalty notices under section 55A, but no such provision existed in section 43. The judge expressed no concluded view on whether the Commissioner could cancel an information notice and issue a fresh one after an appeal had been lodged, leaving that point to be determined in an appropriate case.

In short, the decision of the First-tier Tribunal involved no material error of law and the appeal was dismissed; UKIP was required to comply with the information notice within thirty days of the date of issue of the Upper Tribunal’s decision.

R (on the application of Secretary of State for Home Department ) v Information Tribunal [2006] EWHC 2958
Information Commissioner v Malnick and ACOBA [2018] UKUT 72
UCAS v Information Commissioner and Lord Lucas [2014] UKUT 557
Goldsmith International Business School v Information Commiss ioner and the Home Office [2014] UKUT 563
Jones (by Caldwell) v First Tier Tribunal and Another [2013] UKSC 19