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Judicial Summary

Reported as [2019] AACR 12

Section 28(4) of the Data Protection Act 1998 - Data subject鈥檚 right of access following death 鈥� Tribunal Jurisdiction

On 10 July 2013 the Appellant, along with two others, made a subject access request to the Public Record Office of Northern Ireland (PRONI) under section 7 of the Data Protection Act 1998 (DPA) for documents relating to their internment without trial in the 1970s. On 2 October 2014, the Secretary of State issued a certificate under section 28(2) of the DPA, certifying that exemption from the usual DPA rights was 鈥渞equired for the purpose of safeguarding national security鈥�. In due course PRONI responded to the Appellants鈥� subject access requests by providing copies of the documents it held, but with copious redactions. On 17 October 2014 each of the Appellants lodged an appeal. On 17 January 2015 Mr Campbell, the appellant in the instant appeal with case reference GINS/5065/2014, died.

On 23 October 2014 the First-tier Tribunal (F-tT) transferred Mr Campbell鈥檚 appeal to the Upper Tribunal (UT) as required by rule 19(1A) of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 (SI 2009/1976), as amended). The issue for the UT was whether in the context of section 28(4) of the Data Protection Act 1998, a data subject鈥檚 right of access to his personal data and to bring an appeal against the Secretary of State鈥檚 national security certificate could survive his death. The UT treated this as a preliminary issue under rules 5(3)(e) and 8(2)(a) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698).

Held, striking out the appeal, that:

1. applying the definition provided by Diplock LJ in Letang v Cooper, the appeal brought by Mr Campbell under section 28(4) of the DPA was not a 鈥渃ause of action鈥�. It did not represent 鈥渁 factual situation the existence of which entitles one person to obtain from the court a remedy against another person.鈥� Rather, the section 28(4) procedure is no more than a statutory appeal route, a procedural mechanism, for challenging the issue of a national security certificate in the substantive section 7 subject access request proceedings (paragraph 29);

2. Mr Campbell鈥檚 rights under section 7 of the DPA were purely personal rights which did not survive his death as a cause of action. They were more akin to the rights under the matrimonial causes legislation than to other statutory rights which may pass to the estate (such as under discrimination law) (paragraph 32).

The UT struck out the appeal for want of jurisdiction.