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Facebook, FOI and children

Children portrait 146x219A recent Upper Tribunal case involving a local authority concerned the interplay between children's personal data and transparency. Robin Hopkins looks at the outcome.

The Upper Tribunal has got its teeth into personal data disputes on a number of occasions in recent months – Edem was followed by Farrand, and now Surrey Heath Borough Council v IC and Morley [2014] UKUT 0330 (AAC): Morley UT decision. 

Panopticon (the 11KBW blog) reported on the first-instance Morley decision in 2012. In brief: Mr Morley asked for information about members of the local authority’s Youth Council who had provided input into a planning application. The local authority withheld the names of the Youth Councillors (who were minors) under s. 40(2) of FOAI (personal data). In a majority decision, the First-Tier Tribunal ordered that some of those names be disclosed, principally on the grounds that it seemed that they appeared on the Youth Council’s (closed) Facebook page.

The local authority and the ICO challenged that decision. The Upper Tribunal (Judge Jacobs) has agreed with them. He found the dissenting opinion of the First-Tier Tribunal member to have been the more sophisticated (as opposed to the overly generalised analysis of the majority) and ultimately correct. The Youth Councillors’ names were correctly withheld.

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In his analysis of the First Data Protection Principle, Judge Jacobs was not much bothered by whether fairness or condition 6(1) (the relevant Schedule 2 condition) should be considered first: “the latter is but a specific instance of the former”.

Judge Jacobs found that there was no sufficient interest in the disclosure of the names of the Youth Councillors. He also rejected the argument that, by putting their names on the relevant Facebook page, the data subjects had implicitly consented to public disclosure of their identities in response to such a FOIA request.

Judge Jacobs stopped short, however, of finding that the personal data of minors should never be disclosed under FOIA, i.e. that the (privacy) interests of children would always take precedence over transparency. Maturity and autonomy matter more than mere age in this context, and sometimes (as here) minors are afforded substantial scope to make their own decisions.

Morley is an important case on the intersection between children’s personal data and transparency, particularly in the social media context, but – as Judge Jacobs himself observed – “it is by no means the last word on the subject”.

Robin Hopkins is a barrister at 11KBW. He can be contacted on 020 7632 8500, This email address is being protected from spambots. You need JavaScript enabled to view it.or via Twitter (@hopkinsrobin). This article first appeared on the set's Panopticon blog.

There were 11KBW appearances by Joseph Barrett (for the local authority) and Heather Emmerson (for the ICO).

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