Case Study 4 - Complaint by School Manager about disclosure to parents of his personal data contained in a school inspection report
A School Manager complained to me about disclosure to the school Principal of his personal data contained in the report of an unannounced visit by a school inspector under the terms of the Education Act 1998.
Comments about a School Manager or staff member in a school inspection report are personal data relating to that individual within the meaning of the Data Protection Acts.
In this case, the inspection report was released to the school principal, in response to an application by her to the Chief Inspector requesting a review of the inspection under section 13(9) of the Education Act 1998. The Department of Education and Science indicated that their policy in relation to the publication of inspection reports is as follows:
'It is the Department's practice to provide a copy of an inspection report to a person seeking a review as part of the section 13 (9) Review Procedure process. .... It is the view of the Department that the report in question was a record which was required to be disclosed to that person by operation of a rule of law, and in accordance with section 8 of the Data Protection Act, such disclosure is exempt from the terms of that Act and consequently the prior consent of a data subject was not required.'
My Office informed the Department that, insofar as possible, inspection reports which issue should not contain third party data, or at least that party's consent should be sought to permit disclosure of his or her personal data, other than in cases under section 8(e) and 8(f) of the Data Protection Acts. In effect, these provisions allow for disapplying the restrictions on disclosure where required 'by or under an enactment or a rule of law or order of a court', section 8(e), or where 'required for the purposes of or in the course of legal proceedings in which the person making the disclosure is a party or a witness', section 8(f).
My Office advised the Department of their obligations under the Data Protection Acts, in particular of the general requirement that, in any case where an individual's rights might be prejudiced, that that person should be made aware in the event that their personal data is being disclosed to a third party.
I also received complaints from the same School Manager, the Principal and a teacher about the release of the report to parents under the Freedom of Information Acts. Under Freedom of Information legislation, personal information is exempt from disclosure to third parties, subject to a number of exceptions. These exceptions include where the public interest in disclosure outweighs the individual's right to privacy. Section 28(5)(a)) of the Freedom of Information Acts provides that a request for third party personal information may be granted when 'on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld'. This is an exception and the Information Commissioner has ruled (case No 99001) that 'the protection of personal privacy afforded by the section 28 exemption is intended to be a strong one'.
My staff considered the issue of the interface between the Freedom of Information Acts and the Data Protection Acts. Section 1 (5)(a) of the Data Protection Acts 1988 and 2003 provides that -
"1. (5)(a) A right conferred by this Act shall not prejudice the exercise of a right conferred by the Freedom of Information Act 1997."
The Data Protection Acts also set aside the general prohibition on disclosure in a number of specified circumstances including where disclosure is required under an enactment or by a rule of law or a court order.
In assessing whether a disclosure of personal information under the Freedom of Information Acts is legitimate in so far as the Data Protection Acts is concerned, the key issue is to determine what is the public interest in the particular case, and to apply the test provided by section 28(5)(a) of the Freedom of Information Acts. In the present case, this Office considered that there was a legitimate public interest, from the perspective of transparency and accountability, in a School Inspector's report being made available to parents and that this public interest outweighs the right to privacy of the individual to whom the information relates. Accordingly, my staff concluded that there had not been a contravention of the Data Protection Acts.
I am aware that the Minister for Education is making School Inspection reports publicly available in the interests of transparency. My Office has advised that care should be taken to ensure that only personal data which is essential to the substance of the Inspection Report should be included.