Judges’ data protection duties – High Court rules on judges’ obligations and the use of closed proceedings in subject access request claim

10 May 2023

The High Court yesterday handed down judgment in X v. The Transcription Agency and Master Jennifer James [2023] EWHC 1092 (KB), dismissing in their entirety allegations that the Defendants had breached the claimant’s rights under the UK General Data Protection Regulation (“GDPR”) in refusing to provide personal data in response to a subject access request (“SAR”).

The Second Defendant is a High Court Master and a Costs Judge who was deciding cost proceedings in which the Claimant was a party. The First Defendant is a company providing court transcripts under a framework contract with the Ministry of Justice. During the costs proceedings, the Claimant made SARs to both Defendants for disclosure of his personal data. The Defendants declined to provide data in response, relying on the “judicial exemption” under paragraph 14 of Part 2 of Schedule 2 to the Data Protection Act 2018. This exemption has never previously been considered in any High Court or appellate judgment.

The High Court held the Defendants were entitled not to disclose the Claimant’s personal data, and that the judicial exemption should be interpreted broadly to cover all judicial functions given the strong public interest in safeguarding the independence of the judiciary. In reaching this conclusion, the Court rejected the Claimant’s reliance on internal guidance to the judiciary regarding their data protection obligations, which in some cases did not correctly reflect the position under the 2018 Act. The Court held that the guidance in some respects adopted too narrow a view of the scope of judges’ functions that would fall within the judicial exemption.

The High Court’s judgment also contains an important discussion of the procedure to be adopted by the court in claims concerning SARs. It concluded that the court has an implied power under the UK GDPR and 2018 Act to hold closed sessions where it can inspect personal data withheld by a data controller in the absence of the claimant – an approach which effectively mirrors the use of closed procedures in Freedom of Information Act 2000 appeals.

Alan Bates and Will Perry appeared for Second Defendant, Judge James (instructed by the Government Legal Department). Azeem Suterwalla also represented the Second Defendant at an earlier stage of proceedings.