105. The DN concludes (para 61 A11) that having seen no evidence of consent or
any other Article 9(2) ground the processing of any special category data would
breach the data protection principles.
106. We found no specific argument against this from the Appellant save as
might relate to Professors Phoenix and Freedman which we deal with below.
107. We have reviewed the Report in the Closed Bundle. We are satisfied that
the Report does contain special category material. In places that material is
not directly connected to the name of a person. However in our view there will
be times where redaction of a name alone would not protect the identity of the
data subject from the “motivated intruder” to a high enough degree especially
in the context of the numbers involved and the university setting.
Tribunal’s Conclusion – Special category data
108. In our view UoE were obliged to deploy the exemption in section 40(2) FOIA
as regards any special category data in the Report. This is because there was
no evidence that relevant data subjects had explicitly consented to such
material being disclosed (or any other Article 9 (2) reason applied) and thus
disclosure of such personal data was prohibited by Article 9(1).
109. Therefore, as regards the reliance by UoE on section 40(2) FOIA as it
pertains to special category data, it is our view that the DN was in accordance
with the law and it is not our view that the IC should have used its discretion
differently.
Tribunal’s review- section 40(2) Personal data
110. By section 40(2) and 40(3A)(a) an absolute exemption applies if the
processing of Personal Data would breach the data protection principles.
These principles include:
Article 5(1)(a) GDPR by which personal data is to be processed “lawfully, fairly
and in a transparent manner as regards the data subject”
Article 6(1) GDPR which sets out the circumstances where processing will be
lawful including:◦ (a) where the data subject gives consent (as opposed to explicit consent for
special category data)
◦ (f) where processing is
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