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Former car service manager Alfred Percival made a claim for constructive dismissal against his former employer, a national motor group, claiming his relationship with them broke down after whistleblowing over health and safety concerns.

After his wife was diagnosed with cancer, Mr Percival made a flexible working request to his employer in order to negotiate an alternative role in the firm with more flexible hours. His employer declined the request claiming Mr Percival had resigned and the dispute was not in any way related to the alleged public interest disclosures (whistleblowing).

Mr Percival lost the case after the tribunal unanimously decided he had resigned and was not ‘constructively dismissed’ and was subject to any “detriment … for any reason of making a protected disclosure”.

Mr Percival was unhappy with the ruling, he didn’t feel it adequately reflected the evidence he put forward. In surprise turn of events, he decided to challenge the ruling in a very unorthodox way by submitting a subject access request, in order to obtain the judge’s handwritten notes. The judges personal notes, made throughout the case to transcribe the proceedings, would provide insight into the reasoning behind his eventual decision.

After several years of back and forth correspondence with the Ministry of Justice (MoJ), the Information Commissioner’s Office (ICO) and the senior Judiciary, Mr Percival was eventually successful in his request after the ICO (who oversee enforcement of the Data Protection Act (DPA)) agreed that “handwritten notes in the court files will be data for the purposes of the DPA”.

His wife, Janice Percival, who played an active role in supporting her husband’s case throughout said: “We wanted to establish what had happened; now we can look at Judge Pritchard-Witt’s notes to compare it with the judgment. We are applying to re-open the case.”

A letter sent to Mr Percival shortly before the ruling said “There is no doubt that clarifying the nature of the relationship between judicial notes and the DPA is important … a decision on the relationship is likely to be far-reaching and extend well beyond the particular circumstances of your own case.”

It’s certainly fair to say that this is a ground breaking decision that has established a significant legal precedent for the right to personal information.

Christian Mancier, a Corporate/Commercial Partner and the Data Protection Officer at Gorvins Solicitors, commented:

“There is common misconception that non-electronic records such as paper files and handwritten notes fall outside of the provisions of the Data Protection Act 1998. Where such paper records are stored in a “relevant filing system” then they do fall within the provisions of the DPA and may therefore be disclosable in response to a subject access request by an individual.

In this instance the ICO took the view that personal handwritten notes of the judge did not fall under the DPA whilst they remain with the judge in his personal notebook. However, as soon as they were placed on the formal court file for the Percival case, they then became part of a “relevant filing system” and were therefore subject to the DPA and disclosable to Mr & Mrs Percival.

The MoJ also argued that it was not a relevant data controller and in any event the notes should not be disclosed. However the ICO took the view that (1) the MoJ became a data controller in respect of the notes once they were placed on the court file and (2) that compliance with the disclosure provisions was important given the MoJ was subject to various other obligations that data controllers are subject to.

It is also important to note that this was the assessment of the ICO, which the MoJ accepted without challenge, and a raft of subject access request to the courts requesting hand written notes from the judges on historic cases may lead to the MoJ challenging the ICO’s assessment through the courts. Furthermore, the ICO has yet to publish their core reasoning for their assessment, with that information coming to light via the ICO decision letter to Mr Percival which Mr Percival made public, which, given the importance of the outcome, is surprising from the ICO’s perspective.”