Claim No 6CF90111
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
CARDIFF DISTRICT REGISTRY
CARDIFF CIVIL JUSTICE CENTRE, 
2 PARK STREET, 
CARDIFF CF10 1ET
Date: 23 November 2007
BEFORE: 
HIS HONOUR JUDGE HICKINBOTTOM 
SITTING AS AN ADDITIONAL JUDGE OF THE HIGH COURT
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ANDREW EZSIAS
Claimant
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THE WELSH MINISTERS
Defendants
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The Claimant appeared in person. 
ROBERT O’LEARY (instructed by the Director of Legal Services, Welsh Assembly Government) appeared for the Defendants.
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Judgment

Introduction

1.	In this action, the Claimant Andrew Ezsias claims against the Defendants (“the National Assembly”) under Section 7(9) of the Data Protection Act 1998 (“the 1998 Act”) for failures to disclose data to him following several requests.  He seeks (i) a declaration that the National Assembly have failed to comply with their obligations under the 1998 Act, (ii) damages in respect of that non-compliance, and (iii) an order requiring them to comply.

Background

2.	The background to the claim is as follows.  From 1 July 1998, Mr Ezsias was employed by the North Glamorgan NHS Trust (“the NHS Trust”) as a consultant oral and maxillofacial surgeon.  In April 2003, he was suspended: but he remained in post until 1 February 2005, when he was summarily dismissed.  On 4 February 2005, he commenced proceedings in the Employment Tribunal on the primary ground that he had been dismissed because he had made protected disclosures - he was a “whistleblower” - and his dismissal was therefore automatically unfair under Section 103(a) of the Employment Rights Act 1996.  It is his case that, during the course of his employment, he had a number of major clinical and administrative concerns.  In respect of several colleagues, he alleged fraud, dereliction of duty, incompetence and inadequacy which he considered jeopardised the treatment and safety of patients.   He claims that he made a number of complaints about these matters which his employer failed properly to address and in respect of which he was victimised, being suspended and ultimately dismissed.  He claims that the investigator appointed by the NHS Trust improperly re-wrote and deceitfully backdated his report in order to conceal facts and facilitate the Trust’s intention to breach its contract by dismissing Mr Ezsias (Mr Ezsias Skeleton Argument 3 September 2007, Paragraph 17(d)(iii)).  The NHS Trust’s case is that the real reason for the dismissal was that Mr Ezsias was responsible for a breakdown of relationships in his department and within the NHS Trust such that the employment relationship could not continue and it was fairly determined.

3.	Those employment proceedings are still current.  Although on 9 September 2005 the Employment Tribunal struck out Mr Ezsias’s claim as having no real prospect of success, this ruling was overturned on appeal to the Employment Appeal Tribunal (Elias J) which was upheld by the Court of Appeal ([2007] EWCA Civ 330) on the grounds that (i) although Elias J expressly found there was no actual bias in or pre-determination by the Employment Tribunal, the tribunal’s decision was vitiated by apparent bias because the chairman had expressed a view on the merits of the claim at an earlier hearing (i.e. that the claim had no prospect of success and was bound to fail) that a fair minded and informed observer would have considered effectively to have been a concluded view: and (ii) there was a crucial core of disputed facts in the case that could only be determined by evaluating the evidence at a hearing, and therefore it could not be said that the claim had no reasonable prospect of success.  As I understand it, the NHS Trust has not renewed its application for summary judgment, and Mr Ezsias’s claim before the Employment Tribunal is therefore proceeding towards a substantive hearing.  Nothing I say in this judgment bears upon the merits of that claim.

4.	Mr Ezsias’s employment was with the NHS Trust.  However, when the Trust failed to deal with his concerns in a manner he found satisfactory, he wrote extensively to the National Assembly Government in respect of both his substantive concerns and the manner in which those concerns had been dealt with.  The sheer amount of correspondence was compounded by (i) the number of people within the National Assembly to whom he wrote which included the First Minister and other Welsh Ministers, other Assembly Members (including Mrs Sue Essex AM), civil servants in a number of Welsh Assembly Government Departments (including the Department of Health & Social Services, the Information Management Division and the Complaints Unit), and other bodies that formed part of the Assembly Government (e.g. NHS Wales, Healthcare Inspectorate Wales and the Care Standards Inspectorate): and (ii) the fact that Mr Ezsias also repeatedly complained about the manner in which his complaints were being dealt by the National Assembly, in which the Public Services Ombudsman for Wales became involved.  It is Mr Ezsias’s contention that the National Assembly acted deliberately to hinder his employment claim and to conceal failures by Ministers and senior civil servants in the National Assembly Government (Mr Ezsias Skeleton Argument 3 September 2007, Paragraph 9(a) and (b)).  The Ombudsman dismissed Mr Ezsias’s complaints.  That dismissal is now itself the subject of an application by Mr Ezsias for judicial review.  The result has been that, although the National Assembly deny any responsibility for or involvement in Mr Ezsias’s suspension or dismissal - or indeed any mandate to direct the NHS Trust to take or refrain from taking any action in relation to Mr Ezsias - Mr Ezsias’s attempts to involve the National Assembly in his dispute with his former employer has generated an enormous amount of paperwork, that continues to grow exponentially.  That is something to which I shall return.

5.	As Maurice Kay LJ indicated in his judgment in the Court of Appeal to which I have referred (at Paragraphs 30-1), whistleblowing claims before the Employment Tribunal have much in common with discrimination cases, as they require an investigation into why an employer took certain steps (in this case, Mr Ezsias’s suspension and dismissal): and a claimant will often run up against similar difficulties to those facing someone claiming discrimination - including of course the need for disclosure by his employer in respect of why the relevant steps were taken.

6.	Therefore, in support of his employment claim, from 12 April 2003 (only days after his suspension) to 3 February 2006 Mr Ezsias made a number of requests of the National Assembly (or of individuals for whom the National Assembly are now responsible) under the provisions of the 1998 Act.  Throughout, Mr Ezsias has made the purpose of the requests very clear - although he was employed by the NHS Trust and not the National Assembly, he wishes to have this disclosure to advance his claim before the Employment Tribunal for unfair dismissal.  In his request dated 3 February 2006 (which in relation to the claim now before me was the most significant request, for the reasons I give below: see Paragraph 10), he said that the request was made “with the specific purpose to commence legal actions against the Assembly Government” (which, despite the way it was phrased, was an apparent reference to his current employment claim against the NHS Trust): and in his Particulars of Claim he states that the 3 February 2006 request was made “with the specific aim to obtain documents in connection with ongoing legal proceedings” (again, an apparent reference to those same proceedings).   That this has been the purpose of the requests and these proceedings has been a point repeatedly stressed by Mr Ezsias in the course of this claim (see, e.g., Paragraph 2 of the judgment of Auld LJ of 26 September 2006: it was also stressed at the most recent hearing before me on 24 September 2007).  These proceedings were rightly referred to by Mr Ezsias himself as “satellite” proceedings to what he describes as his “main case” before the Employment Tribunal (Skeleton Argument 10 September 2007, Paragraph 7(c)).

The Requests for Disclosure

7.	Before 3 February 2006, Mr Ezsias made four requests for disclosure of data under the 1998 Act, namely:

(i)	Request dated 12 April 2003, sent to Mrs Ann Lloyd (the Director of NHS Wales) that NHS Wales disclose all “documents… in connection with my complaints of and treatment by [the NHS Trust]…”.

(ii)	Request dated 8 February 2004, sent to Mrs Sue Essex (Assembly Member for Cardiff North) that she disclose all “data… which connected with [Mr Ezsias], [his] concerns and/or complaints, treatment by [the NHS Trust]…”.

(iii)	Request dated 10 February 2004, sent to the Care Standard Inspectorate for Wales that it disclose “all materials… which [were] connected with [Mr Ezsias], [his] referral to and action by the Care Standard Inspectorate… in connection with [him], [and his] practising privileges at BUPA or any other private hospital…”.

(iv)	Request dated 8 April 2004, sent to Mr Paul Hard (Data Protection Officer, Access to Information Unit, Welsh Assembly Government) for the National Assembly to disclose all data “in connection with [him], [his] complaints of and treatment by [the NHS Trust] and the [National Assembly]…”.

8.	On 3 February 2006, he made a fifth request, sent to Dr Brian Gibbons (the Minister for Health of and Social Services, the Welsh Assembly Government) in the following terms:

“FORMAL REQUEST FOR DISCLOSURE OF ALL MATERIALS AND DOCUMENTS IN THEIR ENTIRETY FOR THE PURPOSE OF LEGAL PROCEEDINGS UNDER DATA PROTECTION ACT 1998

Re Welsh Assembly Government - Minister of Health - Health and Social Security Department - NHS Wales - Care Standard Inspectorate - etc

I request the Welsh Assembly Government with specific reference to Dr Brian Gibbons, Minister for Health and all departments currently under his direct and indirect responsibilities that ALL MATERIALS and DOCUMENTS whether in paper or electronic format, private, confidential internal or external memos, letters, notes (including emails), records (whatever medium they were recorded) etc. which are connected to me, any issue, decision, consideration etc related to me or connected to overlapping investigations, consideration, actions, intended actions etc to be disclosed in their entirety with the specific purpose to commence legal actions against the Assembly Government….

These disclosure must be extended to all records, documents, notes etc received, generated or sent; including drafts, contacts made whether inside the Assembly Government between different departments or outside but related to the complaints and responses made to them, which I made against [the NHS Trust], their different officials irrespective of their past or current position.  These disclosures also must include complaints made against different officials of the Assembly Government; their notes, records and considerations, actions and intended action in connection with their department or with other departments whether inside or outside the Assembly Government.

The disclosure must run from 1 January 1998 with particular reference from 1 January 2002 onwards.”   

The emphases I have marked were in the original.  A cheque for £10 was enclosed.

9.	Given the obvious overlap with the previous requests, Mrs Gwenda Davies on behalf of the National Assembly wrote to Mr Ezsias on 17 February to seek “clarification as to whether the current request is to include the personal data previously provided or whether you only wish to receive that generated since [the] previous requests”.  Mr Ezsias responded on 18 March, as follows:

“Your clarification request was noted.  However, our letter for disclosure was unequivocal and indeed your letter confirmed that that ALL disclosure should “run from 1 January 1998 but with particular reference 1 January 2002 onwards”…” (emphasis in the original).

10.	Mr Ezsias claims that the National Assembly failed to comply with the four earlier requests - and he seeks a declaration to that effect, as well as damages for those failures - but, insofar as the requests imposed an obligation on the National Assembly, the data requested on 3 February 2006 appear to include all of the data requested in the previous requests.  Therefore, although in due course I shall deal with the issue of compliance with the earlier requests (see, particularly, Paragraphs 107 and following below), in this judgment I shall largely focus on this final request with which Mr Ezsias claims the National Assembly have still failed to comply.

The Statutory Provisions

11.	A series of statutes (including the Data Protection Act 1984 (“the 1984 Act”), the 1998 Act and the Freedom of Information Act 2000 (“the 2000 Act”)) have been enacted to give effect to Directive 95/46/EC, and consequently they have to be construed with the purpose of that Directive in mind.  The primary purpose of the 1995 Directive is to protect the fundamental rights of individuals, notably the right to privacy and accuracy of their personal data held and processed by others (“data controllers”).  

12.	In pursuit of that purpose, Parliament has given an individual a right of access to certain information held by others, namely “personal data”.  This is defined as follows (Section 1(1) of the 1998 Act: all statutory references in this judgment are to the 1998 Act unless otherwise indicated):

“… data which relate to a living individual who can be identified 

(a)	from those data; or
(b)	from those data and other information which is in the possession of, or is likely to come into the possession of, the data controller;

and includes any expression of opinion about the individual and any indication of the intentions of the data controller or any other person in respect of the individual..”

13.	The scope of “personal data” has changed over time.  Broadly, the 1984 Act was restricted to data held in computerised systems: the 1998 Act expanded the definition to include data held in a manual filing system structured similarly to a computerised system: and, from 1 January 2005,  the 2000 Act extended the definition so far as public authorities are concerned to all recorded information including “unstructured personal data”, by adding a Section 1(e) to the 1998 Act to include this information (Section 68(1) and (2)(a) of the 2000 Act).  As one would expect, the National Assembly is a public authority for these purposes (see Section 1(1) of the 1998 Act, and Section 3(1) and Part 1 of Schedule 1 to of the 2000 Act).  However, personal data which fall within Section 1(e) and which relate to appointments or removals, pay, discipline, superannuation or other personnel matters in relation to service in any employment by the Crown (including the National Assembly) are exempt from the provisions which extend information access rights to unstructured personal data (Section 33A(2)).  In other words, employees do not gain greater access rights under the 2000 Act amendments than are enjoyed by their private sector counterparts.  For them, as for those counterparts, they have right to access data from only structured personnel files.

14.	The right to access entitles an individual to know whether a data controller is processing any of his personal data and, if so, to be told what it is, its source, why it is being processed and to whom the data are or may be disclosed.  These entitlements are particularly set out in Section 7(1), as follows:

“(1)	…[A]n individual is entitled

(a)	to be informed by any data controller whether personal data of which that individual is the data subject are being processed by or on behalf of that data controller;

(b)	if that is the case, to be given by the data controller a description of

(i)	the personal data of which that individual is the data subject,

(ii)	the purposes for which they are being or are to be processed, and

(iii)	the recipients or classes of recipients to whom they are or may be disclosed;

(c)	to have communicated to him in an intelligible form

(i)	the information constituting any personal data of which that individual is the data subject, and

(ii)	any information available to the data controller as to the source of those data, and

(d)	where the processing by automatic means of personal data of which that individual is the data subject for the purpose of evaluation matters relating to him such as, for example, his performance at work, his creditworthiness, his reliability or his conduct, has constituted or is likely to constitute the sole basis for any decision significantly affecting him, to be informed by the data controller of the logic in that decision-taking….”

15.	A data controller is not obliged to supply any information unless he has received a written request and the appropriate fee (Section 7(2)), the general maximum fee being £10 (The Data Protection (Subject Access) (Fees and Miscellaneous Provisions) Regulations 2000, SI 2000 No 191, “the 2000 Regulations”).  A public authority is however not obliged to comply with a Section 7(1) access request in relation to unstructured personal data “if the authority estimates that the cost of complying with the request so far as relating to those data would exceed “the appropriate limit”, such costs being limited to the costs of determining who holds the relevant information, and then locating, retrieving and extracting the information from a document containing it (Section 9A and Paragraph 4(3) of the Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004 (“the 2004 Regulations”).  “The appropriate limit” is fixed at £600 (Paragraph 3(4) of the 2004 Regulations: the National Assembly is listed in Part 1 of Schedule 1 to the Freedom of Information Act 2000 and hence the higher of the limits applies).  Further, where the data controller reasonably requires further information to locate the information sought, he is not obliged to comply with a request until that further information has been provided (Section 7(3)).  However, otherwise he must provide the information promptly and in any event within a prescribed period of 40 days (Section 7(8), and Paragraph 4(1)(b) of the 2000 Regulations).  The obligation to disclose information in communicable form under Section 7(1)(c)(i) generally “must be complied with by supplying the data subject with a copy of the information in permanent form…” (Section 8(2)).   Where a data controller fails to comply with a request for access to personal data, then “the Court may order him to comply with the request” (Section 7(9)), the Court maintaining a discretion as to whether an order should be made..  

16.	In this claim, Mr Ezsias primarily seeks an order under Section 7(9) requiring the National Assembly to comply with his various requests for access to personal data held by them, and particularly the request of 3 February 2006 - because he wishes to be able to use the information in his employment claim against the NHS Trust.  

17.	However, he also claims damages under Section 13, which provides:

“(1)	An individual who suffers damage by reason of any contravention by a data controller of any of the requirements of this Act is entitled to compensation from the data controller for that damage.

(2)	Any individual who suffers distress by reason of any contravention by a data controller of any of the requirements of this Act is entitled to compensation from the data controller for that distress if

(a)	the individual also suffers damage by reason of the contravention; and
(b)	the contravention relates to the processing of personal data for the special purposes.

(3)	In proceedings brought against a person by virtue of this section it is a defence to prove that he had taken such care as in all the circumstances was reasonably required to comply with the requirement concerned.”

“Special purposes” in sub-section (2) are defined as (a) the purposes of journalism, (b) artistic purposes and (c) literary purposes (Section 3), none of which is relevant in this case: and consequently Mr Ezsias is restricted to seeking compensation for any damage he has actually suffered by reason of any contravention of the National Assembly’s obligation to provide him with information under Section 7(9).

The Proceedings

18.	These proceedings were commenced as a CPR Part 8 claim on 30 March 2006.  As I have indicated, Mr Ezsias seeks a declaration that the National Assembly have failed to comply with their obligations under the 1998 Act by failing to make “appropriate and timely disclosures”, damages for those failures and an order that they do comply with the requests.   He relies upon only the requests of April 2003, April 2004 and February 2006: the requests of February 2004 are not relied upon, or even referred to, in the claim.   However, the National Assembly have taken no point on this, and have dealt with them in their various submissions: and, in Mr Ezsias’s favour, I propose to proceed as if the February 2004 requests had been included in the claim.

19.	There was a case management conference before His Honour Judge Wyn Williams QC (as he then was) on 8 June 2006.  Mr Ezsias appeared in person, and the National Assembly appeared by way of Counsel.  The judge ordered the case to proceed as if it had been commenced under CPR Part 7, and he gave standard directions for a Part 7 claim.  He ordered the National Assembly to serve a Defence by 22 June: each party to give disclosure by 29 June, with inspection by 6 July: each party to file any further evidence by 10 July: and that the trial of the claim should take place before Butterfield J on 24 July.  He refused Mr Ezsias’s application to transfer the claim to the Administrative Court in London, alternatively to the Queen’s Bench Division of the High Court at the Royal Court of Justice.   Mr Ezsias appealed the order as to venue on the ground that Judge Wyn Williams had a possible conflict of interest as a judge resident in Wales - he was at that time the Specialist Chancery Judge for Wales - dealing with a case in which the National Assembly were a party, and because of his previous involvement in earlier proceedings between Mr Ezsias and the NHS Trust.  Permission to appeal was refused by Tuckey LJ on paper (on 12 July 2006), and then by Auld LJ following reconsideration at an oral hearing (on 26 September 2006).

20.	Meanwhile, on 21 June 2006 the National Assembly served a Defence in which they accepted that they had been in breach of their obligations under the 1998 Act in that they had not given access to all of the data properly requested by Mr Ezsias in his various requests within the 40 days required by the statutory scheme: but they (i) asserted that that, by the time of the Defence (and, indeed, by the time proceedings had been commenced), they had given Mr Ezsias the personal data he had sought and which they were obliged to give him under the 1998 Act, and (ii) denied that Mr Ezsias had suffered any damage as a result of their admitted breaches, and consequently they denied that he had any entitlement to damages.

21.	In the event, the matter did not come before Butterfield J in July 2006.  At a second case management conference on 17 July, Judge Wyn Williams vacated the trial date and gave the claim a different direction.  As I have indicated, there had been several requests under the 1998 Act by Mr Ezsias, and the National Assembly had responded to these by disclosing a variety of documents on different dates.  There was some uncertainty as between the parties as to exactly what in fact had been sent to Mr Ezsias by the National Assembly in aggregate response to his various requests.  The judge consequently ordered the National Assembly to serve on Mr Ezsias and file with the Court bundles of documents that they claimed had been disclosed to Mr Ezsias in full or redacted form.  That was to be done by 15 September, with Mr Ezsias serving on the National Assembly a list of other documents upon which he intended to rely by 23 October.  The National Assembly were then ordered to prepare a list of documents that related to Mr Ezsias that it had, but did not intend to disclose in any form, which list was to be considered by the judge at a further case management conference listed for 26 October.  (The Order dated 17 July was varied slightly by an Order dated 16 August 2006, made without a further hearing.  Nothing turns on the changes made.  I have referred to the timetable set by the latter Order.)  

22.	There is no doubt that, in making this order, Judge Wyn Williams had in mind Section 15(2) of the 1998 Act, which provides:

“For the purpose of determining any question whether an applicant under [Section 7(9)] is entitled to the information which he seeks… a court may require the information constituting any data processed by or on behalf of the data controller and any information as to the logic involved in any decision-taking as mentioned in Section 7(1)(d) to be made available for its own inspection but shall not, pending the determination of that question in the applicant’s favour, require the information sought by the applicant to be disclosed to him or his representatives whether by discovery… or otherwise.”.

23.	This envisages a procedure whereby the Court may in appropriate cases review information which a data controller has not disclosed (and does not intend to disclose) to an applicant and come to a view as to whether disclosure should or should not be made.  Under such a procedure, the applicant of course will not see the information the data controller seeks to withhold unless and until the Court makes a decision that it should be disclosed.  The reasons for this are perhaps self-evident, but were described by Laddie J in Johnson v Medical Defence Union Ltd [2004] EWHC 2509 (“Johnson”), at Paragraph 26:

“Section 15(2) makes it clear that, for the purposes of determining whether the data controller was entitled to refuse to disclose any information to the data subject, the court can look at the information itself.  However, the data subject may not see this material.  The purpose is obvious.  A data controller’s entitlement under [the 1998 Act] to hold back information from the data subject so as to protect the interests of third parties would be destroyed if all the data subject had to do was make an application for disclosure under Section 7 and then ask to see the withheld material in order to verify for himself whether it has been withheld on proper grounds.  It is for this reason that Section 15(2) provides that the information sought by the applicant and held by the data controller shall not be disclosed to him or his representatives whether by discovery or otherwise, until after the court has determined the application in his favour.”

24.	In that case, the data controller sought to withhold data on the basis that withholding was necessary to protect the rights of third parties - hence the reference to that in the extract - but the same logic applies whatever the basis of withholding might be.  Section 15(2) envisages a procedure in which the Court considers the documents that the data controller seeks to withhold (together with the reasons given for withholding them), and determines whether the data should be withheld or disclosed, without the applicant having had the benefit of seeing the documents.

25.	Where a data controller wishes to withhold information from an applicant, this procedure has obvious advantages over the directions conventional in other types of case where the parties plead their case, give disclosure of evidence (in the form of lists of documents and service of witness statements), and there is then a trial of the issues disclosed on the pleadings on the basis of the disclosed evidence.  “Disclosure of documents” in the former procedure is likely to be inappropriate, given that Section 15(2) confirms that a data controller cannot be required to give disclosure of documents he seeks to withhold pending a decision of the court on the propriety of that course.  It is also unlikely (although not inconceivable) that the applicant will be able to make substantive submissions on the issue of disclosability - because he will not have seen the data that are the subject of consideration.  

26.	It is clear that at the 17 July hearing, Judge Wyn Williams did give the claim an entirely different procedural direction and timetable from that of the Order of 8 June, which it replaced.  The standard directions for disclosure of documents found in the earlier order were replaced by the more appropriate and carefully crafted directions in the 17 July and 16 August Orders, which required the National Assembly to 

(i)	to identify and copy to Mr Ezsias the documents it had already disclosed to him, 
(ii)	to identify by list to Mr Ezsias those documents it wished to withhold from Mr Ezsias, and 
(iii)	to copy and file copies of those documents to enable the Court to decide whether they could be withheld or should be disclosed 

It was unlikely that any further disclosure of documents or other evidence would be necessary or appropriate before the judge embarked on the task of determining whether the documents that the National Assembly were withholding from disclosure contained any data that they were obliged to disclose pursuant to their obligations under the 1998 Act.   

27.	On 26 October, there was a third case management conference before Judge Wyn Williams.  By that date, both Mr Ezsias and the Court had received copies of all the documents that the National Assembly (i) considered they were obliged to disclose to Mr Ezsias under the 1998 Act in response to all of his requests, and (ii) believed had been sent to him previously in satisfaction of those obligations under the 1998 Act.  Mr Ezsias had served and filed a list of documents upon which he wished to rely, i.e. a list of documents of which he was aware that had not been disclosed to him that he considered ought to have been disclosed under the National Assembly’s obligations under the 1998 Act.  In addition, at the hearing itself, the judge was handed a list of documents which, although they might refer to Mr Ezsias or his complaints, the National Assembly did not consider they were obliged to disclose to him under the 1998 Act (“the non-disclosable list”).  

28.	The judge required the National Assembly to serve the non-disclosable list as a list on Mr Ezsias, with annotations against each document indicating why they considered there were no data in the document that were disclosable under the 1998 Act: and to file copies of all of those documents at Court, to enable the judge to consider them (with the National Assembly’s reasons for non-disclosure) and decide whether the documents contained any information that was disclosable under the 1998 Act.  The order expressly stated that the documents and reasons for non-disclosure would be considered by the judge “for the purpose of determining whether any or certain parts of those documents and whether any of the documents disclosed in redacted form be disclosed partially or disclosed fully to [Mr Ezsias] in response to his requests under Section 7 of the Data Protection Act 1998”.  The judge proposed to do that without giving either party an opportunity to make further submissions, unless the judge himself wished to have such submissions on any document or issue because he could not decide the issues of disclosability properly without them.  The judge’s view of his task was confirmed in the judgment he made in relation to that order (see, e.g., Paragraphs 9 and 13 of that judgment).  He was putting into place a “judicial process… to supervise whether or not the [National Assembly] are correct to maintain that these documents need to be disclosed”.  As I have indicated, if having considered the documents, the judge considered there were documents or issues upon which he wished to have further submissions, he provided for a further hearing.  Otherwise, he listed the matter for a fourth hearing on 28 March 2007, at which he expressly gave both parties permission to apply for summary judgment, or to discontinue, or for further directions as they may consider necessary to progress the claim to trial.  By that time, he was to have considered the documents in the non-disclosable list, and come to a view as to whether or not the National Assembly were justified in withholding disclosure on the basis that there were no data in them which ought to have been disclosed to Mr Ezsias under the 1998 Act.

29.	Pausing there, it is worth reiterating that it is clear from Judge Wyn Williams’ Orders of 17 July, 16 August and 26 October 2006 that he had abandoned the procedure set out in the Order of 8 June (which was a standard procedure of disclosure of evidence followed by a trial) in favour of the procedure envisaged by Section 15(2) (i.e. disclosure to the Court of data that the National Assembly sought to withhold, with the Court ruling on the issue of whether the data should be withheld or disclosed without the applicant being privy to the data).  The latter procedure replaced the former, and the orders for disclosure of documents made on 8 June was implicitly revoked by the later orders for disclosure.  Mr Ezsias’s applications for enforcement of the disclosure order of 8 June are therefore misplaced.  

30.	I understand that Mr Ezsias has sought to appeal the Order of 26 October 2007, on the basis that the judge erred in “directing himself to usurp the role of the trial judge and direct himself to examine newly disclosed documents and decide what, if any, documents should be disclosed”.  He does not appear to have sought permission to appeal for Judge Wyn Williams, but an application to the Court of Appeal for permission is pending.  That application is of course a matter entirely for the Court of Appeal.  I can only say for myself that I consider the procedure adopted by Judge Wyn Williams not only well within the broad ambit of his discretion as the judge case managing this claim, but a procedure patently more appropriate for this claim than the standard Part 7 directions he gave on 8 June, for the reasons I have given above.  In this case, standard disclosure of documents was not appropriate.  The claim centrally concerns whether the National Assembly have disclosed the data they were bound to disclose to Mr Ezsias under the 1998 Act following his various requests.  The documents which have been disclosed by the National Assembly as satisfying their statutory obligation were of course relevant to this issue.  Mr Ezsias has received a confirmatory copy of these documents.  Other documents which may refer to Mr Ezsias but which the National Assembly have not disclosed to him as they consider they contained no data or further data which had to be disclosed under the 1998 Act are also potentially relevant - but clearly they had to be dealt with under the procedure envisaged by Section 15(2), which required the Court to consider the data in private without the data being disclosed to the applicant.  Section 15(2) expressly confirms that such documents are not to be disclosed under CPR Rule 31 unless and until the Court has determined that the data contained in them should be disclosed to the applicant.  That procedure does not require any form of general disclosure of documents: and, despite persistent applications to enforce the standard disclosure order of 8 June, Mr Ezsias has not identified what documents could possibly be disclosed by either party pursuant to that order - or indeed what evidence from any witness could possibly be adduced - that could possibly assist the Court in determining whether or not the documents in the non-disclosable list are required to be disclosed under Section 7.

31.	Therefore, although the procedural course set by Judge Wyn Williams was a matter for him - and is now a matter for the Court of Appeal - it is a course which I consider entirely appropriate in this case, and a course that I myself would have ordered in similar circumstances.

32.	Judge Wyn Williams was appointed to the High Court in January 2007, and effectively left Wales to take up that appointment in December 2006.  Given that he had reserved this matter to himself when he was resident in Wales - and after December 2006 would not be available to deal with the matter - and to avoid a jurisdictional lacuna, I made an Order on 9 January 2007 assigning this claim to me, giving the parties permission to apply under CPR Rule 3.3 (5) and (6).  As Judge Wyn Williams recognised, this claim required judicial continuity and the assignment of a judge to deal with at least the interlocutory matters involved.  As Designated Civil Judge for Wales, it fell to me to ensure that this case was actively and effectively case managed, and that a judge was assigned to replace Judge Wyn Williams.  Particularly given that Judge Wyn Williams’ successor as Specialist Chancery Judge for Wales had not been identified - nor has he or she even yet been appointed - I took the view that I was the appropriate judge to deal with the case.  This is of course a case issued and proceeding in the Queen’s Bench Division of the High Court.  Neither party made any application under the express provision for permission to apply in respect of the order in which I took charge of the management of the claim. 

33.	On 19 January, I made a further order.  The earlier orders of Judge Wyn Williams had required the National Assembly to file at court copies of the documents they did not intend to disclose to Mr Ezsias - but not full copies of the documents they had disclosed in redacted form.  However, the review of documents proposed by Judge Wyn Williams’ orders required the court to consider not only the documents that the National Assembly had not disclosed at all, but also full versions of the documents they had disclosed in redacted form.  I therefore ordered the National Assembly to file full copies of the redacted documents, to enable me to review those parts of those documents they had not disclosed.  That merely filled a small gap in the procedural scheme ordered by Judge Wyn Williams.  On 19 February, I further ordered both parties to identify the orders they proposed to seek at the 28 March hearing, and a skeleton argument.  Again, in respect of both of those orders made on the Court’s own motion I gave the parties permission to apply.

34.	To put it into proper chronological context, it was on 7 March 2007 that the Court of Appeal upheld the decision of Elias J to overturn the Employment Tribunal decision to strike out Mr Ezsias’s tribunal claim (see Paragraph 3 above). 

35.	Prior to the 28 March hearing, as envisaged by Judge Wyn Williams’ orders, I read and considered both the documents which the National Assembly had disclosed to Mr Ezsias (about 1,000 pages), those which they had withheld (about 1,400 pages), and full and redacted versions of those which they had disclosed in redacted form (about 100 pages).  Of the documents that had not been disclosed, the reason given for withholding the vast majority was that they contained no personal data.  Some were said to be the subject of legal professional privilege.  Some were said to contain only a “small amount of personal data”, and where this was given as the reason it was often said that the personal data that was contained had been disclosed in some other permanent form.  In the case of a very small number of documents, longer reasons for non-disclosure were given.  In respect of five of the 1,400 pages of documents not disclosed to Mr Ezsias, on 24 January I asked the National Assembly to provide me with better reasons for non-disclosure, which they did on 31 January 2007.  

36.	As I have indicated, the scheme envisaged by Section 15(2) and ordered by Judge Wyn Williams required me to come to a view on the disclosability of the documents in the non-disclosable list on the basis of reading the documents and the reasons given for not disclosing given by the National Assembly.  Although I will deal with my reasons in due course, having taken into account everything I had read from both parties and having read the documents themselves, I took the view that the documents that the National Assembly did not propose to disclose contained no personal data that they were bound to disclose to Mr Ezsias under their 1998 Act obligations.

37.	However, in his skeleton argument for the 28 March hearing, Mr Ezsias raised a number of issues both with regard to the continuing failures of the National Assembly to comply with their disclosure obligations under the 1998 Act (as he saw them), and procedural concerns.  The hearing was only allocated 30 minutes, no doubt because (as I have explained) Judge Wyn Williams had envisaged deciding whether documents were or were not disclosable before the hearing, and the scope of the hearing would be simply to consider the appropriate orders in the light of his findings.  It was not expected that there would be further debate about the disclosability of the documents.  

38.	Half an hour was clearly inadequate to consider in any detail all of the issues Mr Ezsias had raised - particularly as his submissions were unclear as to how precisely he considered the National Assembly were in continuing breach of their obligations of disclosure - and I considered that Mr Ezsias should be given a further opportunity to make any further submissions he wished.  However, I was determined to give directions at the 28 March hearing that would focus the proceedings on the determinative issues and would enable an effective hearing to take place on the next occasion.  Whilst I wished to give Mr Ezsias an opportunity to set out fully why he considered the National Assembly still in breach of their obligation to disclose under the 1998 Act, I considered it important to indicate to him my provisional view on the disclosability of the data in the documents I had read and stress the importance of him setting out precisely and comprehensively the reasons he considered the National Assembly in continuing breach, which I did.  Given Mr Ezsias’s continuing criticism of the scope of the National Assembly’s search for data, I also directed the National Assembly to file an affidavit verifying compliance with the Orders of 26 October 2006 and 19 January 2007 in particular setting out the steps which had been taken to identify and thereafter disclose data the subject of Mr Ezsias’s various requests.  Otherwise, I adjourned the hearing to 24 September 2007 with a time estimate of one day.  

39.	Judge Wyn Williams had already indicated that each party had permission to apply for summary judgment or discontinuance on the basis of the findings with regard to disclosability that the Court made on the documents (26 October 2006 Order, Paragraph 2).  In the order making the adjournment, I made clear (as I had done at the 28 March hearing itself) that, at the adjourned hearing, the following particular issues would be considered (28 March Order, Paragraph 3):

“(i)	in the light of the affidavit [I had ordered the National Assembly to provide], whether [the National Assembly] has failed to comply with the Orders of 26 October 2006 and 19 January 2007;

(ii)	whether (in the light of the lists of documents served by [the National Assembly], the reasons for non-disclosure given by [the National Assembly] and the relevant provisions of [the 1998 Act], [the National Assembly] has improperly withheld disclosure of documents from [Mr Ezsias];

(iii)	whether [the National Assembly] has breached the provisions of [the 1998 Act] (and if so the extent of the breach and the appropriate remedy/sanction); and

(iv)	whether, by virtue of how this claim has been conducted, [Mr Ezsias] has suffered prejudice and if so the appropriate remedy.”
 
Paragraph 3(iv) was included because Mr Ezsias alleged that the National Assembly had deliberately failed to comply with, not only his 1998 Act requests, but also orders of the Court, in an overt attempt to frustrate his employment claim.  He claimed that this was contemptuous, and an attempt to pervert the course of justice.

40.	I directed skeleton arguments to be served and filed, and particularly I ordered in relation to Mr Ezsias’s skeleton (28 March Order, Paragraph 5):

“… In relation to each issue, [Mr Ezsias] shall set out precisely each respect in which he alleges [the National Assembly] is in breach or has acted improperly or he has been prejudiced: and, if he seeks damages for breach of [the 1998 Act], the heads of damage sought to be recovered and the basis for their recovery.”

41.	I considered that those directions gave proper focus to this claim, and maximised the prospect of the 24 September hearing being effective in substantively progressing the claim.  Although all of the hearings before Judge Wyn Williams and me have been described as “case management conferences”, the Court always has the ability to make orders striking out or dismissing a claim where it is appropriate so to do: and in this claim Mr Ezsias could have been under no illusion as to the procedural scheme adopted by Judge Wyn Williams, and that the purpose was to make a final ruling in relation to disclosability of documents without a full “trial”.  For the reasons I have given, I consider that to have been an entirely appropriate procedure, and Mr Ezsias’s complaint that I propose dealing with the determinative issues following the 24 September hearing has no substance.  Indeed at that hearing he urged me to determine those issues, of course in his favour.  

42.	Again, Mr Ezsias did not seek from me permission to appeal that order, but has applied to the Court of Appeal for permission.  That application too is pending.  It has several bases, but is notably based on two interrelated grounds.  First, he claims that by using the procedure envisaged by Section 15(2), I (like Judge Wyn Williams) have usurped the role of the trial judge.   I have dealt with this point above (Paragraphs 30-31).  Second, he claims that I erred in giving a view on disclosability at the 28 March 2007 hearing “without any hearing, without calling witnesses, [and without] appropriate presentations…”, and I consequently improperly pre-determined the claim evidencing both bias and prejudice.  Again, as this matter is before the Court of Appeal, I can limit my comments - but I should deal with the matter briefly, given the repeated applications by Mr Ezsias that I recuse myself.  I do not consider that I erred in the manner I dealt with the 28 March hearing because:

(i)	It is in the nature of the procedure envisaged by Section 15(2) that the judge will consider disclosability without the applicant having sight of the data, and therefore probably without the applicant being able to make substantive submissions that might assist in that decision.

(ii)	The procedural scheme fixed by Judge Wyn Williams envisaged the judge deciding issues of disclosability on the basis of what had been filed following the 26 October 2006 Order.  He did not envisage either party making further submissions on disclosability at the March 2007 hearing.  That is why that hearing was set down for only 30 minutes.  In line with the Orders of Judge Wyn Williams, before the 28 March hearing, I considered disclosability of the data in the various documents in the non-disclosable list on the basis of what was then before me.

(iii)	However, in his skeleton argument for the 28 March hearing, whatever the envisaged scheme might have been, Mr Ezsias made it clear that he did wish to make further submissions on whether the National Assembly had breached their obligations under the 1998 Act to disclose data.  He criticises me for not giving a judgment or making an order that the National Assembly were not in continuing breach at that hearing: but I did not do so because I considered that Mr Ezsias ought to be given an opportunity to set out his submissions in a comprehensive manner both in writing and then at a hearing with an adequate time estimate.  I had in mind that he was a litigant-in-person.  I did not make an order or give judgment precisely because I had not come to a concluded view on disclosability.  I had come to a provisional view which, particularly in fairness to Mr Ezsias, I shared with the parties at the 28 March hearing.  It is abundantly clear from the Order I made on 28 March that, far from closing my mind to anything Mr Ezsias had to say about the National Assembly’s breach of their 1998 Act obligations, I gave Mr Ezsias every opportunity to make out his claim that they had been and were in continuing breach.  I deal with his submissions on this issue below (Paragraphs 44-45, and 68 and following below).  

43.	I also deal with the applications to recuse below (Paragraphs 133-143).

44.	For the hearing of 24 September, Mr Ezsias made very lengthy written submissions.  He particularly relied upon the following as showing that the National Assembly had been and were in continuing breach of their obligations to disclose data to him under the 1998 Act:

(i)	A letter from Mrs Ann Lloyd (Chief Executive, NHS Wales) to Mr Jim Hayburn (Chief Executive, the NHS Trust), dated 12 October 2004.  Mr Ezsias submitted that this letter contains disclosable data, but does not appear in any list of documents provided by the National Assembly, whether of documents disclosed, disclosed as redacted or documents on the non-disclosable list.

(ii)	A letter from Mr Ezsias himself to the First Minister (Mr Rhodri Morgan), dated 12 July 2003.  Mr Ezsias said that the Public Administration Ombudsman for Wales found “compelling evidence” that the First Minister received this letter.

(iii)	A letter from Mrs Jane Hutt (Minister for Health and Social Services) to Mrs Sue Essex (Mr Ezsias’s AM), dated 23 December 2004.  This letter states that the NHS Trust “is expected to make an announcement shortly concerning the future employment of Mr Ezsias”: but, Mr Ezsias submitted, no documents or data have been disclosed in relation to the source of that information.  Under Section 7(1)(c)(ii), a data controller has an obligation to disclose sources of information: and the National Assembly are in breach of their obligations in not disclosing the source of this information.

(iv)	An email between officials of the Care Standards Inspectorate dated 24 February 2004.  Mr Ezsias submitted that the National Assembly are in breach of their obligation to supply a copy of information in permanent form (Section 8(2)), by merely providing a summary of the information contained in the email rather than a copy of the email itself.

(v)	An internal memorandum from Ms Alison Stowell (Public Administration Division, National Assembly Government) to Mr Dennis Patrick (NHS (Human Resources) Division), dated 28 February 2005.  This document was disclosed in redacted form.  Mr Ezsias did not expressly rely upon this document at the September hearing, but in his submissions he appeared to complain that I had failed to deal with it at the 28 March hearing when he did refer to it.  

(vi)	The non-disclosable list states as a reason for non-disclosure that certain documents only contains a “small amount of personal data” and provide no other reason for the documents non-disclosure.  He submitted that the Act does not provide an exemption for “small amounts of data”, and that all of these documents should be disclosed now.

(vii)	He submitted that efforts made by the National Assembly to identify and disclose his personal data (as set out in the affidavit sworn by Natalie Lancey on 10 May 2007 on behalf of the National Assembly in response to the Order of 28 March 2007) were inadequate: and further efforts ought to have been made to ensure the search was reasonable and proportionate.  In particular, he criticised the National Assembly for only requesting information from three departments (the Department of Health and Social Services, the Information Management Division and the Complaints Unit), and not from other departments or agencies (such as the Healthcare Inspectorate Wales).

45.	 On the basis of that, Mr Ezsias submitted that the National Assembly had failed in satisfying their obligations under the 1998 following his requests, both (i) in failing to identify and retrieve all of the documents to which he was entitled pursuant to his requests and (ii) in failing in any event to disclose all of the documents they had identified and retrieved and were bound to disclose pursuant to his requests.  He consequently sought an order requiring the National Assembly to provide a list of “those documents which so far it has failed to disclose” (as I understand it, following a further exercise of identification and retrieval) and disclosure of the documents themselves.  The National Assembly had accepted in their Defence that they had not complied with their obligations under the 1998 Act within the statutory 40 day period: but submitted that they had otherwise complied with all of their statutory obligations following Mr Ezsias’s requests, and in particular they had (i) taken reasonable and proportionate steps to identify and retrieve personal data disclosable to Mr Ezsias as the result of his requests, and (ii) of the data identified and disclosed as a result of those steps, they had disclosed to Mr Ezsias all that they were obliged to disclose.  Those positions identified the core issues that fell before me to determine at the 24 September 2007 hearing.

46.	I deal with those issues below, but before I do so I should complete the chronology:

47.	This claim was issued against the Welsh Assembly Government, but it proceeded against the corporate body of the National Assembly for Wales which was the appropriate defendant until the Government of Wales Act 2006 came into force.  The majority of the functions of the National Assembly were vested in the Welsh Ministers under Section 45(2) of the 2006 Act: and Paragraph 39(4) of Schedule 11 to the 2006 Act has the effect of automatically substituting “The Welsh Ministers” for “The National Assembly of Wales” in any proceedings without further order.  As a result, “The Welsh Ministers” are now the correct defendants in this action.  Nothing substantive turns on this change.

48.	As the Claimant was acting in person and there were large numbers of documents, by Paragraph 6 of the Order of 28 March I directed the National Assembly to prepare and file a hearing bundle for the 24 September hearing, to be filed by 17 September, which was to include “the pleadings, skeleton arguments and responses, and any other relevant documents”.  This was a simple direction, and it would have been difficult to envisage that it could have created controversy.  However, when the bundle had been prepared, Mr Ezsias raised two complaints, namely (i) that he had not had any input into it and (ii) he considered the bundle was incomplete - for example, there was not a full set of Mr Ezsias’s requests under the 1998 Act, nor a copy of the Court of Appeal judgment of 26 September 2006 (upon which Mr Ezsias relied).  Given the plethora of documents (including large quantities of submissions with enclosures, which were loose at the hearing), for the purposes of preparing my judgment from the 24 September hearing I wished to have a complete set of documents in convenient form.  Therefore, on 27 September, I ordered the parties to liaise and the National Assembly to “produce an agreed bundle incorporating all documents, submissions and authorities relevant to the matters considered at the 24 September hearing”: and indicated that I would produce a judgment in relation to the matters considered at the hearing once that bundle had been filed.  I should add that I was not asking for any new documents to be filed, merely that the various documents which had been filed in various forms were put into a bundle in some reasonable order.  At the request of the parties, the time for filing that bundle was extended to 19 October, when it was indeed filed in two volumes.

49.	Since the bundle has been filed, Mr Ezsias has continued to issue interlocutory applications, issuing applications on 17, 19, 20, 21 and 28 October and 4 November 2007.  There is considerable duplication between these various applications (and between these applications and the issues aired at earlier hearings), and I have indicated to the parties that I would deal with these applications in the course of this judgment.  Insofar as they are not dealt with elsewhere in this judgment, I consider these applications in Paragraphs 132-157 below.

The Limits to a Data Subject’s Entitlement under Section 7

50	I will shortly return to deal with the matters specifically raised by Mr Ezsias which (he submits) show that the National Assembly have failed to comply with his requests and their obligations under the 1998 Act.  However, I would first return briefly to the purpose of the Act, and the rights of access that Section 7 of the Act bestows upon data subjects.  Throughout this claim, Mr Ezsias has exhibited fundamental misunderstandings of those rights.

51.	As I have already indicated (see Paragraph 6 above), Mr Ezsias brings this claim with the express purpose of obtaining documentary evidence to further his claim against his former employers (the NHS Trust).  He correctly emphasises that the right of access to information under the 1998 Act is a free-standing right.  There is no exemption from the requirements under the Act where proceedings are pending.  Indeed, the Information Commissioner has indicated:

“If a data controller were able to avoid complying with a subject access request in circumstances where data subject was contemplating or had begun legal proceedings it would seriously undermine this fundamental right [of access]” (Information Commissioner Guidance quoted in The Encyclopaedia of Data Protection, Paragraph 1-421/1).

52.	However, although it might be that information to which a data subject has the right of access may assist him in prosecuting or defending discrete litigation, that is not the purpose of the legislation.  As Auld LJ said in Durant v The Financial Services Authority [2003] EWCA Civ 1746, [2004] FSR 573 (“Durant”) at Paragraph 27:

“In conformity with [The Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (1981) (Cmnd 8341)] and the Directive, the purpose of Section 7, in entitling an individual to have access to information in the form of his “personal data” is to enable him to check whether the data controller’s processing of it unlawfully infringes his privacy and, if so, to take such steps as the Act provides… to protect it.  It is not an automatic key to any information, readily accessible or not, of matters in which he may be named or involved.  Nor is it to assist him, for example, to obtain discovery of documents that may assist him in litigation or complaints against third parties.” (emphasis added).

53.	There is a fundamental distinction between the right of access to data in the hands of another person for the purposes of protecting privacy, and the right to disclosure of documents.  Mr Ezsias actually wishes to have disclosure of documents to assist his employment claim: and he labours under the misunderstanding that the right to access to data is necessarily coterminous with a right to disclosure of documents.  It is not.  Under the 1998 Act there is no right to have access to or copies of documents at all.  Section 7 gives a data subject a right to be informed by any data controller whether personal data of which that individual is the data subject are being processed by or on behalf of that data controller: and if that be the case to be given a description of those data, the purposes of the processing and the recipients of any disclosure, and (Section 7(1)(c)):

“… to have communicated to him in an intelligible form

(i)	the information constituting any personal data of which that individual is the data subject, and

(ii)	any information available to the data controller as to the source of those data…”.

54.	Whilst the obligation to disclose information in communicable form under Section 7(1)(c)(i) generally “must be complied with by supplying the data subject with a copy of the information in permanent form…” (Section 8(2)) - and this particular obligation may be met by providing the data subject with a copy of a pre-existing document containing the data and other relevant information required to be disclosed - that is not the equivalent of a right to disclosure of documents.  Again, this was dealt with by Auld LJ in Durant (at Paragraph 26):

“The intention of the Directive, faithfully reproduced in the [1998] Act, is to enable an individual to obtain from a data controller’s filing system, whether computerised or manual, his personal data, that is, information about himself.  It is not an entitlement to be provided with original or copy documents as such, but, as Section 7(1)(c)(i) and 8(2) provide, with information constituting personal data in intelligible and permanent form.  This may be in documentary form prepared for the purpose and/or where it is convenient in the form of copies of original documents redacted if necessary to remove matters that do not constitute personal data (and/or to protect the interests of other individuals….”.

He returned to the theme at Paragraph 40, where he said that the Parliamentary intention was in his view a clear recognition that “… the protection given by the legislature is for the privacy of personal data, not documents…”. 

56.	Mr Ezsias relied upon Section 35, which provides that personal data are exempt from the non-disclosure provisions where disclosure is required by “the order of the court”, or “is necessary… for the purpose of, or in connection with, any legal proceedings (including prospective legal proceedings), or… for the obtaining of legal advice.. or is otherwise necessary for the purposes of establishing, exercising or defending legal rights” (emphasis added).   Mr Ezsias relied upon these provisions as if they gave him the right to disclosure of all documents in the hands of the National Assembly that refer to him or to complaints he has made.  The provisions do no such thing.  They concern only data - not documents - and do nothing to extend the definition of “personal data” under the Act.  The purpose of this section is to confirm that where documents or data have to be disclosed because of some other legal obligation (e.g. because of the requirements of disclosure of documents in legal proceedings) then that obligation cannot be defeated by the non-disclosure provisions in the 1998 Act.  But that is very different from saying (as Mr Ezsias appears to attempt to do) that the provisions mean that, once a request is made under the Act, then a data holder is bound to disclose all documents incorporating all personal data of the data subject just because he is involved in actual or potential legal proceedings.  In the claim before me, Section 35 is of no assistance to Mr Ezsias.  It might be of assistance to him if disclosure was ordered in his employment claim, and the National Assembly sought to restrict disclosure on the basis of the non-disclosure provisions of the 1998 Act.  However, I have no evidence this is the case: and, in any event, that would be a matter for the Employment Tribunal, and not me.

57.	Therefore, the underlying premise of Mr Ezsias’s claim (i.e. that, in his own words, under the 1998 Act he has a right to full disclosure from the National Assembly of “all materials and documents” which are “connected to [him] or connected to overlapping investigations, considerations, actions, intended actions etc”: see 3 February 2006 request, which is indeed headed “Formal request for disclosure of all materials and documents in their entirety for the purpose of legal proceedings under the Data Protection Act 1998) is false.  His entire approach to the application is misconceived, based as it is, not upon his rights under the 1998 Act, but fundamentally under the provisions for disclosure of documents under CPR Part 31 (see, e.g., Mr Ezsias Statement 7 July 2006, Paragraphs 7, 8 and 12: Mr Ezsias Statement 8 July 2006, Paragraph 9: Mr Ezsias letter to the National Assembly’s Director of Legal Services 11 July 2006).  He appears to believe - wrongly - that, by bringing this claim under the 1998 Act, he is entitled to see all documents in the possession of the National Assembly which refer to him or to his various complaints and concerns.  He has muddled rights under Section 7(9), with any rights a person may have within a substantive claim to disclosure of documents under CPR Part 31.  His entitlement under Section 7 of the 1998 Act is to access to data, not disclosure of documents.

58.	Of course, as I have already hinted, Mr Ezsias may have the right to disclosure of documents from his former employers (the NHS Trust) and all third parties (including the National Assembly) arising outside the 1998 Act.  Under the Employment Tribunals Rules 2001, a tribunal may require any person to disclose documents or information to a party as might be ordered by a county court under CPR Part 31 (including CPR Rule 31.17 relating to third party disclosure) (Rule 10(2)(d), (5) and (6)).  From the documents disclosed in the course of this application, Mr Ezsias is clearly well aware of his ability to obtain this disclosure in the course of his employment tribunal proceedings, and he is exercising that right to the full.  He accepted in the course of the hearing before me that all of the documents he seeks in the course of the claim now before me can be (and, as I understand it, have been) sought by way of disclosure in the employment proceedings.  Indeed, he accepted before me that all of the documents he seeks from the National Assembly under the provisions of the 1998 Act will be available to him by way of discovery in the employment proceedings in any event: and he has already served a number of the National Assembly’s “employees, servants, agents etc” with disclosure requests in the employment proceedings which (he says) “can and will be enforced by court orders if necessary” (Skeleton Argument 10 September 2007, Paragraph 7(c)(ii)).  Auld LJ referred to this possibility in his judgment of 26 September 2006 (refusing Mr Ezsias permission to appeal the Order of Judge Wyn Williams of 12 June 2006), when in Paragraph 8 he suggested that this claim may well never have to be heard at all “given the likelihood, as Mr Ezsias has acknowledged, of the material he seeks by way of data access being made available to him in the concurrent proceedings that he is pursuing against the [NHS] Trust before the employment tribunal”.  This is a matter to which I shall return in due course (see Paragraph 102 below).

59.	However, there is a second important premise upon which this claim is based, namely that all information retrieved from a search against an individual’s name is “personal data” within the 1998 Act.  This too is false (see Durant at Paragraph 28).

60.	Whilst each case is factually unique, Durant had certain similarities to the claim now before me.  Mr Durant had various claims and complaints against a bank, whose customer he had been.  The complaints included one to the Financial Services Authority (“the FSA”), the supervisory regulator for financial services.  Mr Durant had tried to obtain various records from the bank without success, and he then sought the assistance of the FSA to obtain disclosure - in particular he was anxious to see any documents the FSA had obtained from the bank when they investigated his compliant to them about the bank.  He sought disclosure under Section 7.  The FSA disclosed some of the information requested, but withheld other information on the grounds that (i) it was not “personal” within the definition of “personal data” under the 1998 Act, and (ii) it did not constitute “data” as it did not form part of a “relevant filing system”.  

61.	In dealing with the dealing with the first issue, Auld LJ said (at Paragraphs 30-31):

“30.	Looking at the facts of this case, I do not consider that the information of which Mr Durant seeks further disclosure - whether about his complaint to the FSA about the conduct of [the bank] or about the FSA’s own conduct in investigating that complaint - is ‘personal data’ within the meaning of the [1998] Act.  Just because the FSA’s investigation of the matter emanated from a complaint by him does not, it seems to me, render information obtained or generated by that investigation, without more, his personal data.  For the same reason, either on the issue as to whether a document contains ‘personal data’ or as to whether it is part of a ‘relevant filing system’, the mere fact that a document is retrievable by reference to his name does not entitle him to a copy of it under the Act….  It cannot have been the intention of Parliament that, subject to it being part of a relevant filing system within Section 1(1), any document held by the FSA generated by and/or arising out of the FSA’s investigation of such a complaint should itself be disclosable under Section 7.  As the FSA acknowledges, in its provision of documents in response to Mr Durant’s first request, which was to enable him to compare documents held by the FSA with documents disclosed by the bank, it provided more than the Act required of it.

31.	In short, Mr Durant does not get to first base in his claim against the FSA because most of the further information he sought, whether in computerised form or in its manual files, is not his ‘personal data’ within the definition in Section 1(1).  It is information about his complaints and the objects of them, [the bank] and the FSA respectively.  His claim is a misguided attempt to use the machinery of the Act as a proxy for third party discovery with a view to litigation or further investigation, an exercise, moreover, seemingly unrestricted by a consideration of relevance….”

62.	Buxton LJ added this (at Paragraphs 80-81):

“80.	… On the ordinary meaning of the expression, ‘relating to him’, Mr Durant’s letters of complaint to the FSA, and the FSA’s investigation of that complaint, did not relate to Mr Durant, but to his complaint.  The 1998 Act would only be engaged if, in the course of investigating the complaint, the FSA expressed an opinion about Mr Durant personally as opposed to an opinion about his complaint; a contingency for which, nonetheless, the draftsman of the Act though it necessary to make specific provision.  And on the purposive construction of the expression… access to that material could not possibly be necessary for or even relevant to any protection by Mr Durant of his privacy.  The excessive nature of his demands is perhaps best illustrated by the claim … that Mr Durant should be told the identity of all those at the FSA who had handled his complaint.  In the formal FSA complaints process in which Mr Durant engaged before bringing the present proceedings… that information may or may not have been relevant, though there is no indication that Mr Durant or those who may have been advising him then sought it.  It has nothing whatsoever to do with Mr Durant’s privacy, and proceedings under the 1998 Act cannot be used now, or at all, to extract it.

81.	In short, these proceedings were misconceived…”.

63.	This same line of thinking appears to have led Laddie J to the conclusion in Johnson that “many of the documents [sought by Mr Johnson] did not focus on Mr Johnson or were not about him.  They were therefore not “personal” in the sense necessary to constitute personal data...” (Paragraph 10).

64.	Mr Ezsias was employed by the NHS Trust, against whom he has brought employment proceedings.  The Trust is clearly the appropriate sole respondent to those proceedings.  Whilst of course the National Assembly would have an interest in the complaints of an NHS Trust employee that the treatment, welfare and safety of patients was being jeopardised by the fraud, dereliction of duty, incompetence and inadequacy of a number of his colleagues - NHS Wales is an agency of the Assembly and, as I understand it, it has a supervisory role over NHS Trusts in Wales - the Assembly had no involvement in the decision of the NHS Trust to dismiss Mr Ezsias.  The Public Services Ombudsman for Wales has investigated various complaints raised by Mr Ezsias against the Assembly (including the compliant that the Assembly ought to have taken some action against the NHS Trust in relation to various allegations made against it, to compel the NHS Trust to act):   and has dismissed those complaints (see the National Assembly’s Skeleton Argument dated 3 September 2007, which so far as any factual content is concerned is supported by a statement of truth by the Director of Legal Services, Welsh Assembly Government).  

65.	In any event, the vast majority if not all of the documents of which Mr Ezsias now seeks disclosure were generated as the result of Mr Ezsias’s efforts to involve the National Assembly in his dispute with his former employer, including the complaints he made to that employer of various practices he alleged were rife within the NHS Trust.  By now, many of the documents relate, not to these original complaints, but to later complaints Mr Ezsias has made about the manner in which the National Assembly have responded to the substantive complaints about the NHS Trust.  As I have already indicated, those later complaints (about the National Assembly’s handling of his concerns) have themselves been the subject of further steps by Mr Ezsias including a complaint to the Ombudsman.  I have not seen the Ombudsman’s report, but I am told that he not only dismissed the complaint, but indicated that Mr Ezsias’s course of action (of involving many people in the National Assembly Government and their agencies, by writing separately to them) was, to say the least, unhelpful.  For the sake of completion, I should add that the Ombudsman’s report is now the subject of judicial review proceedings by Mr Ezsias, on the basis that some of his findings were perverse.  
    
66.	As a result of Mr Ezsias’s course of conduct - which has involved writing to many different individuals in many different arms of government in Wales, and has included serial complaints over the manner in which earlier complaints and concerns have been handled - quite enormous amounts of documents have been generated.  I make no comment about the merits of that course of action at this stage.  I shall return to those merits in due course (see Paragraph 101 below).  However, the vast majority of the documents so generated (and the information contained within them) do not relate to Mr Ezsias, but rather to his complaints.  As the National Assembly submitted to me: “The only reason [the National Assembly] holds any of [Mr Ezsias’s] personal data and other data connected with him, is because of [Mr Ezsias’s] considerable correspondence with [the National Assembly]” (Skeleton Argument 13 March 2007, Paragraph 10).  Many of the documents, as I have explained, relate to second, third or even fourth-generation complaints.  For the reasons given by Auld and Buxton LJJ in Durant, the information generated by these complaints is no more Mr Ezsias’s personal data than the information generated by the complaints made by Mr Durant: although, of course, the 1998 Act would be engaged if and insofar as, in the course of investigating the complaint, any opinion had been expressed about Mr Ezsias personally as opposed to his complaint.  As Buxton LJ pointed out in Durant, that is a contingency specifically provided for by Parliament in Section 1(1) in its definition of “personal data”.  However, it is simply not open to an individual to make a complaint to another person (whether or not an arm of government) which causes that other person to generate information during the course of investigation of that complaint, which the complainer can then seek through the access to data provisions of the 1998 Act.  The information so generated by the complaint is not personal data for the reasons given in Durant, and access to that material could not possibly be necessary for or even relevant to any protection of the complainer’s privacy.  The purpose of the Act is to protect that privacy.  To use the provisions of the Act to seek disclosure of documents generated as the result of the applicant’s own complaint, in order to further a legal claim of the applicant against a third party is a legal abuse.  In Buxton LJ’s words, such an application is misconceived.

67.	Those general comments about the purpose of the 1998 Act and the limits upon the rights of access under Section 7, have to an extent cleared the ground before I deal with the specific matters raised by Mr Ezsias in support of his submission that the National Assembly have failed to comply with their obligations under the 1998 Act in response to his requests for data.  It is to those specific matters that I now return.

Matters relied upon by Mr Ezsias in support of his Submission that the National Assembly are in Continuing Breach  

68.	For the hearing of 28 March and 24 September 2007, Mr Ezsias prepared and relied upon very extensive written submissions.  As I have already indicated, I was anxious to give him every opportunity comprehensively to identify and elucidate upon all matters which he relied in support of his contention that the National Assembly had been and were in continuing breach of their obligations to disclose data to him following his various requests.

69.	In the event, he identified the seven particular matters I have set out in Paragraph 44 above.  There are five specific documents, copies of which he has obtained from the National Assembly or elsewhere, which he broadly submits (i) must be in the possession of the National Assembly, (ii) contain data which is his personal data, covered by the requests he has made and (iii) are not within the bundle of documents that have been disclosed to him as the result of those requests.  I deal with these in turn in Paragraphs 70-85 below.  I shall then turn to the two more general matters raised by Mr Ezsias in support of his submission, namely (i) the National Assembly’s failure to disclose documents which they accept have a “small amount of personal data” relating to Mr Ezsias in them (Paragraphs 87-90, and (ii) the alleged inadequacy of the steps taken by the National Assembly to identify and retrieve personal data the subject of Mr Ezsias’s requests (Paragraphs 91-97).

Document 1: A letter from Mrs Ann Lloyd (Chief Executive, NHS Wales) to Mr Jim Hayburn (Chief Executive, the NHS Trust), dated 12 October 2004.  

70.	The letter reads as follows:

“I have received the attached letter from Mr Ezsias concerning his applying for his case to be heard in front of a tribunal.

I am aware that you have decided not to continue with the externally-led review - on the basis that Mr Ezsias could not co-operate with the terms of reference.  I would be grateful if you could advise me of the issues surrounding the terms of reference of this review and how they differ from those suggested in 2003.  I should also like to know why Mr Ezsias could not comply with them and what in the absence of this review you intended to resolve the outstanding concerns expressed by Mr Ezsias.

I am also aware that the complaint made against Mr Ezsias, i.e. the reason for his suspension has reached some form of conclusion and I should be grateful for details of the conclusion.  I also note that you saw Mr Ezsias on 22 September and I should be pleased to hear the conclusions of that interview.

As you will be aware, Mr Ezsias is concerned particularly about the governance of the organisation and the falsification of records.  Could you advise me what action you as accountable officer have taken to assure yourself of the governance arrangements for the organisation.”

71.	Mr Ezsias submits that this letter contains disclosable data, but does not appear in any list of documents provided by the National Assembly, whether documents disclosed, disclosed as redacted or documents on the non-disclosable list.  The document is (he says) important because “this letter, amongst others, specifically refers to falsification of records, failure to deal with [his] concerns etc”:

“This is a highly relevant letter from Ann Lloyd showed that NHS Wales was concerned with falsifications over a long period of time and yet failed to properly discharge its duties and investigate the matter.” (Skeleton Argument 3 September 2007, Paragraph 11(a)).

72.	I have three points to make concerning this letter.

(i)	Mr Ezsias suggests that this letter evidences some serious failure on the part of the National Assembly: whilst elsewhere, he suggests that the Assembly have withheld documents from him to which he is entitled under the 1998 Act, deliberately to frustrate his employment claim against the NHS Trust (see, e.g., his letter to the Court 21 May 2006, Paragraph 3.8: I deal with the wider allegation below, see Paragraphs 128-131).  With respect to Mr Ezsias, the suggestion that this letter inherently evidences a failure on the part of the National Assembly is disingenuous.  In the letter, Mrs Lloyd - clearly and unequivocally - merely repeats the allegation Mr Ezsias has made in correspondence to her.  It simply cannot be properly construed as suggesting that Mrs Lloyd gives any credence to the allegation herself, or expresses any opinion whatsoever about Mr Ezsias or even the allegation.  I agree with the submission made on behalf of the National Assembly (Skeleton Argument 10 September 2006, Paragraph 23) that this is an example of Mr Ezsias seeking to create the impression that information held by the Assembly has greater significance than it does have in fact. 

(ii)	This document falls very firmly within the category of document discussed in Durant (see Paragraphs 59 and following above).  It is a letter which Mrs Lloyd generated as the result of a complaint from Mr Ezsias, and in the course of her investigation of that complaint.  For the reasons given above, it expresses no opinion of or concerning Mr Ezsias: and does not contain any personal data relating to him.  It relates to his complaint, and not to him.  This is fatal to his claim that this letter or any information in it ought to have been disclosed pursuant to his 1998 Act requests.

(iii)	In any event, Mr Ezsias has patently suffered no prejudice by any failure on the National Assembly’s part not to disclose this letter to Mr Ezsias.  (I put it that way, because the Assembly do not know from where Mr Ezsias obtained this document: and accept that they may have disclosed it to him as part of the disclosure exercise following one of his requests, although they deny that they ever had any obligation to disclose the letter or any information in it under their 1998 Act obligations.)  First, whatever Mr Ezsias himself may think, for the reasons I have given, this letter is of no evidential value in his pursuit of his employment claim against the NHS Trust.  Second, through whatever route, Mr Ezsias in fact has a copy of this document.    

Document 2:  A letter from Mr Ezsias himself to the First Minister (Mr Rhodri Morgan), dated 12 July 2003.  

73.	This letter reads as follows:

“I refer to previous correspondence.

This is an unplanned, short but important letter.

The reasons for sending this letter are

1.	I have considerable respect for elected representatives and people working in the Civil Service until they misuse their position.  I have considerable respect for you personally as elected first minister of the Principality.

2.	To make sure that you will not be able to claim later that you were not aware nor were you made aware of the possible collusion between senior officials of the welsh assembly Government and [the NHS Trust] to an extent of breaching the law safeguarding individuals rights.

I enclose my letter to the Data Protection Officer of the Assembly.  I have no doubt I need not to mention the most recent case involving the [1998] Act just a few weeks ago: Lord Ashcroft v HM Government.  As you know the Government conceded defeat in the second day of the hearing incurring considerable expenses, publicity and was forced to comply with the law.”

74.	The letter was sent by recorded delivery.  I have not seen his report, but Mr Ezsias says that the Public Services Ombudsman for Wales found “compelling evidence” that the First Minister received this letter.  Mr Ezsias explains the significance of this letter, as he sees it, as follows (Skeleton Argument 3 September 2007, Paragraph 11(b)):

“To understand the significance of this letter one must go back to the origin of the issues, the extremely serious clinical shortcomings at the [NHS] Trust resulting in death and/or considerable decreased survival of patients like in the Bristol baby heart surgery case.  [Mr Ezsias] raised these issues with his clinical, medical directors, chief executives etc of his employer.  When they failed to act he reported his concerns to the Trust accounting officer, Mrs Lloyd, Director of NHS Wales.  The above letter directly links the First Minister to these issues.”

75.	I have three points to make concerning this letter.

(i)	In relation to his whistleblowing claims, this letter may be relevant or even important in showing that the First Minister was aware of Mr Ezsias’s concerns.  I express no view on that issue at all.  However, that does not mean that this letter contains any personal data that would be disclosable under the 1998 Act.  Indeed, during the course of the hearing, Mr Ezsias accepted that this letter does not contain any personal data that the National Assembly would have been required to disclose to him.  

(ii)	This is a letter emanating from Mr Ezsias himself, and is a further example of a complaint from him to someone within the National Assembly (i.e. the First Minister) which may or may not have prompted some form of investigatory steps.  This document again falls firmly within the category of document discussed in Durant (see Paragraphs 59 and following above), namely a document which expresses no opinion of or concerning Mr Ezsias: and does not contain any personal data relating to him (other than his name and address, which as information has of course been provided to Mr Ezsias - but in any event Mr Ezsias was himself the source of the information).  It again relates to his complaint, and not to him.  This is once more fatal to his claim that this letter or any information in it ought to have been disclosed pursuant to his 1998 Act requests.
   	
(iii)	Turning to the prejudice Mr Ezsias has suffered by the failure to disclose, clearly this is nil.  Mr Ezsias not only has a copy of this letter, but was in fact the person who generated it.

Document 3:  A letter from Mrs Jane Hutt (Minister for Health and Social Services) to Mrs Sue Essex (Mr Ezsias’s AM), dated 23 December 2004.  

76.	This letter reads as follows:

“Thank you for your letter of 8 November.  [The NHS Trust] is expected to make an announcement shortly concerning the future employment of Mr Ezsias.  It would not be appropriate therefore to agree to his request for an investigation into the way he has been treated.”

77.	Mr Ezsias’s complaint about this letter is not that it has not been disclosed, but rather that:

“No documents or data can be found in any of the disclosure provided by [the National Assembly] which gives any indication how the Minister came to that knowledge several weeks before the actual determination.” (Skeleton Argument 14 March 2007, Paragraph 2(c)).

Under Section 7(1)(c)(ii), a data controller has an obligation to disclose sources of information: and Mr Ezsias submits that the National Assembly are in breach of their obligations in not disclosing the source of this information.

78.	I have three points to make concerning this letter.

(i)	Mrs Essex was Mr Ezsias’s constituency Assembly Member, and he was in correspondence with her as such (see Paragraph 112 below).  This letter from the Minister appears to be the response to an enquiry from Mrs Essex as to why the National Assembly had not agreed to Mr Ezsias’s request to have some form of “investigation into the way in which he had been treated”.  It is, once more, part of a trail of documents generated as the result of a complaint by Mr Ezsias himself, which fall into the category of documents described in Durant to which I have referred.  The letter does not contain any personal data, for the reasons I have already given.

(ii)	The obligation under Section 7(1)(c)(ii) to supply sources of information is limited.  There is no obligation to maintain records of such sources - but only to supply them if they are available in recorded form.  There appears to be no evidence that the National Assembly have any such records in relation to the source of the information sought by Mr Ezsias: indeed, the National Assembly’s enquiries have not identified any recorded information about the source of any data contained in this letter (Skeleton Argument 21 March 2007, Paragraph 19: which is supported by a statement of truth from the Director of Legal Services, Welsh Assembly Government)

(iii)	In relation to prejudice, again Mr Ezsias has a copy of this document in any event and has suffered no prejudice from any failure not to disclose. 

Document 4:  An email between officials of the Care Standards Inspectorate dated 24 February 2004.  

79.	Mr Ezsias submits that the National Assembly are in breach of their obligation to supply a copy of information in permanent form (Section 8(2)), by merely providing a summary of the information contained in the email rather than a copy of the email itself.

80.	However, as explained above (Paragraphs 51 and following), under Section 7 there is no right to disclosure of documents, only a right of access to information.  I have considered both the original email and the summary of the information contained in it as disclosed to Mr Ezsias.  In my judgment, the “summary” includes all of the information contained in the email to which Mr Ezsias is entitled.  Under the 1998 Act, he is entitled to no more than that.

Document 5: Internal memorandum from Ms Alison Stowell (Public Administration Division, National Assembly Government) to Mr Dennis Patrick (NHS (Human Resources) Division), dated 28 February 2005.  

81.	This document was not relied upon by Mr Ezsias at the September hearing, but he referred to it in Paragraph 5(b)(iv) of his Skeleton Argument 3 September 2007, where he said:

“[At the 28 March 2007 hearing] His Honour was shown specifically one of the redacted disclosures [i.e. this memorandum].  He was invited to state that he had read it in full and found no personal data in it.  His Honour refused to do so.”

82.	At the March hearing, it is correct that I indicated that I did not wish to deal with individual documents upon which Mr Ezsias relied in a piecemeal fashion, at a hearing with a time allocation of only 30 minutes.  I wished to deal with his submissions comprehensively at a further hearing, when time would allow.

83.	I have (and had before the 28 March 2007 hearing) considered this document, in both redacted and full forms.  In its redacted for the memorandum merely stated:

“…the complainant states his complaint of 6 July 2003 to the Minister has neither been acted upon nor acknowledged…”

As that short passage disclosed indicates, the memorandum concerned the mechanics of dealing with complaints made by Mr Ezsias.  As such, for the reasons I have already given, it contained no personal data on him that was disclosable under the 1998 Act.  Indeed, the part of the letter that was disclosed in my judgment contains no such data: and the National Assembly were under no obligation to disclose even that.

84.	Mr Ezsias did not rely upon this document at the 26 September hearing to support his assertion that some of the documents which the National Assembly had withheld in whole or part contained information which ought to have been disclosed under their 1998 Act obligations.  In any event, this document does not support that contention in any way.  

85.	That deals with the documents upon which Mr Ezsias relied as showing that he was entitled to disclosures of data that had not already been made.  Although he referred to these documents as “examples”, (i) my Order of 28 March 2007 made clear that he was required comprehensively to identify precisely all matters and documents upon which he relied, so that the National Assembly could address them and I could consider them: and (ii) even if these documents were examples, they were selected by Mr Ezsias presumably as either representative of other documents or as his strongest evidence that the National Assembly were in continuing breach.  For the reasons I have given, in my judgment, they do not evidence any such breach.  Further, there is certainly no evidence from these documents that the National Assembly have indulged in a course of conduct deliberately to conceal from Mr Ezsias relevant and (so far as the NHS Trust is concerned) prejudicial documents, as he suggests: a matter to which I shall return (Paragraphs 128-131 below).

86.	Having dealt with the specific documents relied upon by Mr Ezsias,  I now turn to the two other specific matters upon which he relied. 
  
87.	First, the non-disclosable list states as a reason for non-disclosure that certain documents only contain a “small amount of personal data” and provide no other reason for the documents non-disclosure.  Mr Ezsias submits that the 1998 Act does not provide an exemption for “small amounts of data”, and that all of these documents should be disclosed now.

88.	To put this submission into context, there are only 19 documents in the non-disclosable list for which the only reason for non-disclosure is given as, “Small amount of personal data”.  All of these documents (as with at least the vast majority of those on the non-disclosable list) have been generated in response to correspondence and complaints by Mr Ezsias.  They are all “mechanical” or procedural in nature, being part of the process by which the complaints have been dealt rather than being substantive.  In my judgment, they all fall squarely within the category of documents described in Durant as being outside the scope of Section 7 requests, relating as they do to Mr Ezsias’s complaints as opposed to Mr Ezsias himself.  On this basis, despite the description given in the non-disclosable list (i.e. that they contain “small amounts of personal data”), I am satisfied that they contain none.  

89.	My view that there is no disclosable data in these documents is firm.  However, even if I am wrong in this, the personal data contained in these documents would be minimal, e.g. Mr Ezsias’s name and address (usually if not invariably of course in letters emanating from or addressed to him), which information emanates from Mr Ezsias himself and has been disclosed to Mr Ezsias in any event.  Whilst there is no exemption from disclosure of small amounts of data, (i) there may be  issues as to whether the data (as opposed to the document in which it is incorporated) have not in fact been disclosed: and (ii) the nature of any data is relevant to the exercise of my discretion as to what (if any) order to make if there is a breach, which I deal with below.  

90.	Mr Ezsias has made very serious allegations against both the NHS Trust and the National Assembly.  I understand that he is sceptical about the National Assembly’s stance in relation to complaints and concerns he has expressed to them about practices he alleges he observed when he worked at the NHS Trust.  Therefore, although the extent to which documents within which information is to be found may be useful to Mr Ezsias’s pursuit of a claim against his former employers is irrelevant to whether data is “personal data” under Section 7, lest Mr Ezsias considers that some smoking gun may be found in these documents, I think I should properly again stress that these documents deal only with the process of dealing with complaints Mr Ezsias has made.  They contain no opinions about Mr Ezsias himself and, although others will have a better understanding of the issues that arise in the employment claim than I, I cannot conceive how these documents could be of any assistance to Mr Ezsias in the pursuit of that claim.  He should certainly not assume (as he has persistently done throughout these proceedings) that, simply because the National Assembly will not disclose certain information to him in these proceedings, that the Assembly are concerned that disclosure will assist him in his employment claim.  In these documents, I have seen no evidence of any attempt on the National Assembly’s part to disrupt Mr Ezsias’s employment claim by failing to disclose documents to him: but only an attempt - I think it is right to say, a conscientious attempt - on their part to comply with their obligations under the 1998 Act following his requests.  As will be clear from the above, in doing so, I have no doubt that the Assembly have given Mr Ezsias access to information which they were not obliged by the Act to disclose.  Whilst they cannot of course be criticised for that, their openness unfortunately appears to have fuelled Mr Ezsias’s belief that, by virtue of his rights under the 1998 Act, he is entitled to all documents in their possession that refer to him or to his various complaints.  Insofar as they have gone further than their obligations, that does not give rise to any form of waiver on their part with regard to other information in their possession that would otherwise not be disclosable.  There is no evidence that, in giving disclosure beyond their obligations, the Assembly have been partisan or otherwise improperly selective.

91.	Second, Mr Ezsias submits that efforts made by the National Assembly to identify and disclose his personal data (as set out in the Affidavit of Natalie Lancey 10 May 2005) were inadequate: and further efforts ought to have been made to ensure the search was reasonable and proportionate.  In particular, he criticises the National Assembly for only requesting information from three departments (the Department of Health and Social Services, the Information Management Division and the Complaints Unit), and not from other departments or agencies (such as the Healthcare Inspectorate Wales).
        
92.	Miss Lancey explained in her affidavit that she coordinated the task of collating the documents for the purposes of compiling the lists pursuant to the orders of 16 August 2006 and 19 January 2007.  She performed this task by emailing relevant officials in the Department of Health and Social Services, the Information Management Division and the Complaints Unit, asking for all the documents they may have that might incorporate disclosable personal data (including that held on computers, such as emails): and then collating the documents received in response to that request.  That produced the approximately 1,000 pages of documents that have been disclosed in whole or part, and the 1,400 pages of documents which may relate to Mr Ezsias but the National Assembly have not disclosed.  Miss Lancey’s affidavit prompted Mr Ezsias on 28 May 2007 to deliver a 7-page request for information purportedly under CPR Part 18, in which he raised 25 requests for further information.  Although they considered the request was not properly made under CPR Part 18 - and in relation to many of the requests, that must be right - Miss Lancey answered most of the requests in an 11-page response on 13 June 2007.

93.	Under the 1998 Act, upon receipt of a request for data, a data controller must take reasonable and proportionate steps to identify and disclose the data he is bound to disclose.  

94.	Specifically, before the introduction of the extended disclosure obligation upon public authorities from January 2005 (see Paragraph 13 above), the fee for obtaining access to documents was £10: and that was matter Auld LJ took into account when considering the appropriateness of the data holder’s search etc in Durant (see especially Paragraphs 45 and following).  Even after January 2005, a public authority is not obliged to comply with a Section 7(1) access request in relation to unstructured personal data “if the authority estimates that the cost of complying with the request so far as relating to those data would exceed “the appropriate limit”, in this case £600 (see Paragraph 15 above).  The National Assembly have not sought to rely upon that exemption, but it gives some context for reasonableness in the context of search etc.

95.	Furthermore, some assistance can be gained from Section 8(2), which provides:

“The obligation imposed by Section 7(1)(c)(i) must be complied with by supplying the data subject with a copy of the information in permanent form unless:

(a)	the supply of such a copy is not possible or would otherwise involve disproportionate effort, or
(b)	the data subject agrees otherwise;…”

The Information Commissioner has given guidance on the meaning of “disproportionate effort”, as follows:

 “‘Disproportionate effort’ is not defined in the Act.  Accordingly, it will be a question of fact in each case as to whether the supply of information in permanent form amounts to a disproportionate effort.  Matters to be taken into account by the Commissioner may be the cost of provision of the information, the length of time it may take to provide the information, how difficult or otherwise it may be for the data controller to provide the information and also the size of the organisation of which the request has been made.  Such matters will always be balanced against the effect on the data subject.” (Data Protection Act 1998: Legal Guidance, Paragraph 4.1).  

96.	Mr Ezsias’s submissions on this issue were substantively thin.  However:

(i)	The vast majority of the data Mr Ezsias sought were not contained in a manual filing system structured similarly to a computerised system, and were held in “unstructured” form.  Such documents would not have formed part of the search for data in respect of searched before January 2005.  The search required by the first four requests made by Mr Ezsias was consequently modest.

(ii)	In respect of the fifth, 3 February 2006 request, although the point was not argued before me, for the purposes of this judgment in favour of Mr Ezsias I accept that, (i) insofar as the information sought was “personal data”, then it fell within Section 1(1)(e) and (ii) the information was not the subject of the exemption for personnel files etc under Section 33A(2): and the National Assembly were required to disclose it under the wider obligations imposed by the 2000 Act.

(iii)	Mr Ezsias relied upon the failure of the National Assembly to disclose documents such as those he had identified in his submissions, to show that the steps taken to identify data for disclosure must have been inadequate.  However, as I have demonstrated, the documents he identified did no such thing.  He only identified one specific document that had not been disclosed which (he submitted) ought to have been, namely the letter from Mrs Ann Lloyd (Chief Executive, NHS Wales) to Mr Jim Hayburn (Chief Executive, the NHS Trust) dated 12 October 2004.  However, for the reasons given above (Paragraphs 70-72), that letter contained no disclosable data at all.  The National Assembly properly withheld disclosure.  The documents identified by Mr Ezsias therefore give no support for his bare assertion that the efforts at data identification and retrieval were inadequate.

(iv)	Mr Ezsias submitted that the request for data sent out from Miss Lancey ought to have covered more government departments than those to which she addressed it.  He particularly referred me to a letter dated 22 April 2004 he received from Mr Paul Hard (Data Protection Officer, Access to Information Unit, Welsh Assembly Government), in response to his 8 April 2004 request, in which Mr Hard suggested that the most likely places within the Assembly Government that the information for which he was looking might be found were the NHS Wales Directorate, the Office of the Chief Medical Officer, and the Private Offices of the First Minister, the Minister for Health and Social Services and the Minister for Finance, Local Government and Public Services.  He submitted that the search and Miss Lancey’s request for data should have covered at least those offices.  He also suggested that the search should also have covered the Health Inspectorate Wales (Request for Information 28 May 2007, Request 10).

(v)	Miss Lancey took the view that a reasonable and proportionate search would be restricted to the departments and units she in fact contacted (see Response to Request for Information 13 June 2007 at Paragraphs 26 and following, particularly Paragraph 32).  I agree.  Despite Mr Hard’s 2004 letter, I have seen nothing to suggest that any arm of the National Assembly other than those contacted by Miss Lancey would likely have any personal data disclosable by the National Assembly in response to the requests made by Mr Ezsias.  Without labouring the point, I consider it unlikely indeed that they would have any such data.  These other departments etc have become involved only because Mr Ezsias has written to them with a view to their involvement in his substantive dispute with the NHS Trust (including his concerns about aspects of the practice of the Trust which forms part of that dispute), and/or they have been involved in investigating and responding to Mr Ezsias’s complaints about the rust and the manner in which the National Assembly have responded to his complaints, as I have described above.  Any documents and information in these other departments etc will therefore almost certainly comprise only documents and data about the complaint, rather than personal data of Mr Ezsias, as described and explained in Durant.  

(vi)	The reasonableness of these steps can, I believe, be illustrated by reference to two arms of the National Assembly particularly referred to by Mr Ezsias as ones of which a request ought to have been made by Miss Lancey.  

(vii)	First, with regard to the First Minister’s Office, I refer to Paragraphs 73-75 above.  Mr Ezsias conceded that the letter he sent to the First Minister on 12 July 2003 (upon which he initially relied as showing the National Assembly had not complied with their obligation to disclose under the 1998 Act) in fact contained no personal data that was required to be disclosed.  That concession was well made.  For the reasons I have given, that letter was generated by Mr Ezsias himself as a complaint of how the National Assembly had dealt with his concerns.  It fell squarely within the category of documents which, following Durant, the Assembly were under no duty to disclose as containing no personal data.  I have no doubt that that is the sort of document that other arms of government may have.  Mr Ezsias’s complaints have generated huge amounts of documents in many parts of the government.  However, there is nothing to suggest that any data are held by those arms of government that would be disclosable under the National Assembly’s 1998 Act obligations.

(vii)	Second, in his Request for Information of 28 May 2007, Mr Ezsias asked to why disclosures had not been made from the Health Inspectorate Wales (Request 10).  Miss Lancey responded (Response to Request for Information 13 June 2007, Paragraphs 35-36):   

“35.	I did not include them in my search for documents because I was unaware that [Mr Ezsias] had also been corresponding with the Healthcare Inspectorate Wales, if this indeed is what he is suggesting….

36.	This is an example of [Mr Ezsias’s] disposition to enter into voluminous correspondence with multiple divisions and departments of [the National Assembly] makes the subject access requests he subsequently makes particularly difficult to manage.  The Public Services Ombudsman for Wales, in his report dismissing [Mr Ezsias’s] complaints against [the National Assembly] criticised the manner of [Mr Ezsias’s] approach and his frequent and prolific letter writing.”

Again, any documents in the hands of the Healthcare Inspectorate Wales will have been generated following correspondence from Mr Ezsias in which he apparently sought that agency’s intervention in respect of his various concerns.  Again, they would very likely fall within the category of documents described in Durant.  Given that the full width of Mr Ezsias’s correspondence was unknown to Miss Lancey, her decision not to ask the HIW to search for data was understandable and in my view reasonable.  Even had she been aware of this correspondence, for the reasons I have given above, I consider she would have been acting reasonably and proportionately in not making enquiries of the HIW for personal data they might hold on Mr Ezsias.  There is very little possibility that they would hold any such data that would be disclosable.

97.	In these circumstances - and given that Mr Ezsias accepts that the documents he seeks in this action for the purposes of progressing his employment claim in the Employment Tribunal will be disclosable in the course of that claim in any event (and the National Assembly will be required to respond to any orders made against it to provide appropriate disclosure of documents) - I consider the steps taken by the National Assembly in response to Mr Ezsias’s requests for access to data - the search, identification and consequent disclosure of information, as described in Miss Lancey’s affidavit - were eminently reasonable and proportionate.  I shall return to the reasonableness of the efforts made by the National Assembly, when I come to deal with the exercise of discretion.

Specific Issues before the Court at the 24 September Hearing

98.	Having dealt with the specific points raised by Mr Ezsias, I can now turn to deal with the four issues that were identified to be considered at the 24 September hearing.  

Issue 1:  In the light of the Miss Lancey’s Affidavit, whether the National Assembly have failed to comply with the Orders of 26 October 2006 and 19 January 2007.

99.	I am satisfied that the National Assembly have complied with the Orders of 26 October 2006 and 19 January 2007.  In particular, for the reasons set out in Paragraphs 91-97 above, I am satisfied that their search for data that may have fallen within Mr Ezsias’s requests was reasonable, proportionate and in compliance with their obligations under the 1998 Act.

100.	In making these findings, I have taken into account not only the results of the search which has been made (and the unlikelihood of any further documents that refer to Mr Ezsias or his complaints containing any personal data that would be disclosable in any event), but also the following.

101.	Many if not all of the data that the National Assembly may have has emanated from Mr Ezsias himself, being incorporated in letters of complaint he himself has sent to the Assembly: and thereafter recycled within the Assembly as they sought to investigate those complaints.  Furthermore, Mr Ezsias is a quite prolific letter writer, and has sought to engage many arms of the Welsh Assembly Government in his dispute with his former employer: and, within those arms of government, many individuals.  The Public Services Ombudsman for Wales has already pointed out how unhelpful this replication of correspondence can be.  It has made the National Assembly’s task of searching for data that might be disclosable to Mr Ezsais the more difficult, not only by resulting in the creation of huge numbers of documents, but particularly by the proliferation of documents concerning the procedure of complaint investigation.  Whilst these documents may not contain any personal data of Mr Ezsias, their sheer numbers make the search for and identification of disclosable data the more difficult (see, e.g., Paul Hard Statement 10 July 2006, Paragraph 10).  Mr Ezsias, in the manner in which he has conducted his quest for disclosure, has made the National Assembly’s task of complying with his requests far more difficult: and this is a matter which I can properly take into account in the exercise of my discretion as to any orders for further searches or disclosure I consider appropriate.

102.	I have also taken into account the reality that lies behind Mr Ezsias’s requests.  As he has stressed, he is in fact seeking disclosure of documents to assist him with the prosecution of his employment claim against the NHS Trust.  Whatever the merits of seeking information from the National Assembly in that pursuit may have been in 2003, Mr Ezsias now accepts that the documents he has been seeking through the 1998 Act procedure will be available to him through the disclosure procedure in the employment claim itself (see Paragraph 58 above).  In making any order under the 1998 Act, the Court has a discretion, which is open and untrammelled.  However, the Information Commissioner has with some force said:

“… [T]he courts do have a discretion as to whether to grant an order under Section 7(9) and may be reluctant to exercise that discretion where it is clear that the purpose of the request is to fuel separate legal proceedings and, importantly, where the discovery rules under the Civil Procedure Rules would provide a more appropriate route to obtaining the information sought.  The Commissioner is also likely to take such matters into account when considering whether to exercise his enforcement powers under Section 40”.  (Information Commissioner Guidance quoted in The Encyclopaedia of Data Protection, Paragraph 1-421/1).

Mr Ezsias is obtaining the documents which he effectively seeks in the claim before me through the disclosure procedure in the employment claim.  As indicated above, he may well obtain more disclosure through that process than through this in any event: but in any event, at best, these proceedings before me - described by Mr Ezsias himself as “satellite” to his employment claim - have now lost all practical purpose.  Indeed, given that the proper forum for deciding what documents ought to be disclosed in relation to the employment claim is the Employment Tribunal itself, in all of the circumstances it is unhelpful, invidious and frankly wasteful of time and resources for Mr Ezsias to continue to attempt to obtain such documents by way of this claim.  In the exercise of discretion, this strongly militates against an order requiring the National Assembly to duplicate effort and make further searches in relation to data under the 1998 Act, when they can be required to make searches (based upon different, more appropriate and wider criteria) for making third party disclosure in the employment claim.  

103.	Therefore, given the conduct of Mr Ezsias, the efforts the National Assembly have already made in relation to this claim, the results of the National Assembly’s searches to date and the unlikelihood of their finding any further disclosable personal data of Mr Ezsias, I am not minded to make an order requiring them to make any further efforts with regard to search.

Issue 2:  In the light of the lists of documents served by the National Assembly (i.e. disclosed, disclosed as redacted, and non-disclosable), the reasons for non-disclosure given by them and the relevant provisions of the 1998 Act, whether the National Assembly have improperly withheld disclosure of documents from Mr Ezsias.

104.	It is my firm view that the National Assembly have not improperly withheld disclosure of any disclosable personal data from Mr Ezsias.  For the reasons given above:

(i)	Mr Ezsias’s rights (and the National Assembly’s corresponding obligations) under the 1998 Act are in respect of access to data, not disclosure of documents.

(ii)	I consider the search for data the National Assembly have conducted was reasonable, proportionate and in compliance with their obligations under the 1998 Act.

(iii)	The documents in the non-disclosable list (and the redacted parts of the documents disclosed in redacted form) contain no personal data of Mr Ezsias which are disclosable.  As the schedule prepared by the National Assembly indicates, although relatively few in number, some of the documents are privileged or contain data that relate to third parties.  In any event, the vast majority (if not all) of the documents not disclosed to Mr Ezsias which I have seen are either complaints made by Mr Ezsias himself, or have been generated in the course of investigations of those complaints.  They contain no expressions of opinion in relation to Mr Ezsias: and are procedural in nature, relating to the procedure for the investigation of the complaints.  For the reasons set out in Durant, they contain no disclosable personal data of Mr Ezsias.  In my judgment, some of the documents which have been voluntarily disclosed by the National Assembly fall into the same category.  The disclosure of these documents does not create any form of waiver by the National Assembly in respect of other documents or data.  There is no evidence of the National Assembly being partisan or selective in the documents and data they have voluntarily chosen to disclose.

(iv)	I am therefore satisfied that the documents do not incorporate any data that Mr Ezsias is entitled to have disclosed to him under the provisions of the 1998 Act.

(v)	However, even if I am wrong in this, insofar as the undisclosed documents contain any personal data of Mr Ezsias, given their procedural nature, they contain merely information of his name, address etc.  This information emanated from Mr Ezsias himself, and was sent to the National Assembly by Mr Ezsias unsolicited.  It has been disclosed to him as data being held by the National Assembly.

(vi)	In any event, by his requests under the 1998 Act and these proceedings, Mr Ezsias seeks disclosure of documents for the purposes of pursuing his employment claim against the NHS Trust.  He accepts that all of the information and documents sought through the 1998 Act procedure will be available to him in the course of his employment proceedings, by way of disclosure in those proceedings.  

(vii)	Given (a) the results of the National Assembly’s searches to date and the likely results of future searches, (b) that any personal data that might be revealed is highly likely to be restricted to Mr Ezsias’s name, address etc, which originally emanated from Mr Ezsias himself in any event, (iii) Mr Ezsias accepts that he is able to obtain all of the information and documents he seeks through the disclosure process in his employment claim and (iv) to require the National Assembly to make any further searches (on different, and narrower criteria than those in the disclosure process in the employment claim) or give any further disclosure in these proceedings would be duplous and wasteful of time and costs, I would exercise my discretion against requiring the National Assembly from making any further disclosures of any data which (contrary to my firm view) are disclosable personal data.

Issue 3:  Whether the National Assembly has breached the provisions of the 1998 Act, and if so the extent of the breach and the appropriate remedy/sanction.

105.	In their Defence, the National Assembly accept that they failed to comply in time with the various data requests made by Mr Ezsias.  In relation to each of the requests, the National Assembly provided data in the form of documents incorporating the relevant information, over time and on a number of different occasions: indeed, the Assembly themselves are unsure precisely what was disclosed and when.  They accept that some of the documents relied upon by Mr Ezsias as documents in the non-disclosable list which (he has submitted) should have been disclosed, may have been sent to him as part of the disclosure exercise (without prejudice to their contention that they had no obligation under the 1998 Act to disclose such documents or any data in them).  Furthermore, as I have found, the National Assembly have in fact disclosed documents that incorporate no personal data to which Mr Ezsias had the right of access.  Therefore, for a variety of reasons, the precise scope of any past failure by the National Assembly to give disclose data which they were bound to disclose under their 1998 Act obligations is difficult to ascertain.  

106.	However - and I would stress this - because of my general findings above, this is of little importance.  The 3 February 2006 request was so wide as to cover all of the data the subject of the earlier requests: and I have found that (i) the search for data instigated by the National Assembly was a reasonable and proportionate search, by which the National Assembly complied with their obligations to locate data, and (ii) the data disclosable as the result of that search has been properly disclosed.  Therefore, at the time of the issue of these proceedings, Mr Ezsias had access to all of the data to which he was entitled, and the National Assembly had complied with all of their obligations under the 1998 Act to give him that access.  Given that Mr Ezsias’s purpose in obtaining the data was to prosecute his employment claim (which is still current) and the primary relief he seeks is for disclosure of documents which he submitted (as I have found, wrongly) ought to be disclosed, if and insofar as the National Assembly failed to act within the statutory time limit of 40 days on requests then this is of little importance.  

107.	However, the position with regard to the disclosures under each of the requests is broadly as follows (Paragraphs 108-119 below).

First	Request dated 12 April 2003, sent to Ms Ann Lloyd (the Director of NHS Wales) that NHS Wales disclose all “documents… in connection with my complaints of and treatment by [the NHS Trust]…”

108.	Although dated 12 April 2003, as I understand it the National Assembly’s Data Protection Officer (Mr Paul Hard) received the processing fee and proof of identity from Mr Ezsias on 7 May, which was therefore the effective date for the application (Paul Hard Statement 12 April 2006, Paragraph 4).  If that was the case, the 40 day period for disclosure expired on 15 June.

109.	Mr Hard sent Mr Ezsias some documents by way of disclosure on 13 June, in time: and some other documents which appeared to him to be covered by the request and to contain a small amount of further disclosable data on 20 January 2004, with a letter of apology for the delay.

Second Request dated 8 February 2004, sent to Ms Sue Essex (Assembly Member for Cardiff North) that she disclose all “data… which connected with [Mr Ezsias], [his] concerns and/or complaints, treatment by [the NHS Trust]…”

110.	This request is not referred to in the claim (see Paragraph 18 above), and it is unclear as to whether Mr Ezsias relies upon it still. Given the reference to the request in his Skeleton Argument 3 September 2007 (Paragraph 17(b)), I assume that he does still rely upon it to an extent.

112.	As against the National Assembly, any reliance is not well-founded.  From the documents Mr Ezsias himself has disclosed (e.g. letter from Mrs Essex to Mr Ezsias 24 January 2004), it seems that Mr Ezsias was corresponding with Mrs Essex in her capacity as the Assembly Member for the constituency in which Mr Ezsias lives, and not in her capacity as a member of the Welsh Assembly Government.  The request was also made to her in that capacity.  Although Mrs Essex was the Minister for the Environment from 2000 to 2003, and the Minister for Finance, Local Government and Public Services from 2003 to 2007, she never had any ministerial responsibility for health.  The National Assembly is not the data controller for any data held by Assembly Members for purposes relating to their role of representing their constituents.  Consequently, the National Assembly were not responsible for responding to this request.

Third Request dated 10 February 2004, sent to the Care Standard Inspectorate for Wales that it disclose “all materials… which [were] connected with [Mr Ezsias], [his] referral to and action by the Care Standard Inspectorate… in connection with [him], [and his] practising privileges at BUPA or any other private hospital…”

113.	The fee for this request was received by Mr Hard on 14 April, the 40 day period therefore expiring on 24 May 2004.  Mr Hard responded to the request by sending the relevant data on 11 June 2004, i.e. 18 days beyond the 40 day period.

Fourth Request dated 8 April 2004, sent to Paul Hard (Data Protection Officer, Access to Information Unit, Welsh Assembly Government) for the National Assembly to disclose all data “in connection with [him], [his] complaints of and treatment by [the NHS Trust] and the [National Assembly]…”

114.	The fee for this request was received on 14 April, so again the 40 day period expired on 24 May 2004.  The history of the National Assembly’s compliance with the request is set out in Mr Hard’s 12 April 2006 Statement (Paragraphs 13 and following).  That indicates that data were disclosed on a piecemeal basis, but all disclosable data were disclosed by 1 October 2004. 

Fifth Request dated 3 February 2006, addressed to Dr Brian Gibbons (the Minister for Health of and Social Services, the Welsh Assembly Government) for the “formal request for disclosure of all materials and documents in their entirety for the purpose of legal proceedings under Data Protection Act 1998”.

115.	Mrs Gwenda Davies sent Mr Ezsias a letter asking for confirmation of the breadth of the request (see Paragraph 9 above), to which Mr Ezsias responded by email late on Sunday 19 March and hard copy on 24 March 2006.  Given (i) the previous requests he had made, (ii) the overlap between this request and those, and (iii) the provisions of Section 7(3), I consider that request for clarification perfectly reasonable.  By my calculation, based on the information being with the National Assembly on Monday 20 March, the 40 day period expired on 28 April 2006.

116.	The data were disclosed by the National Assembly in documents incorporating the data sent in a package under cover of a letter dated 22 May but in fact leaving the National Assembly by courier on 2 June and arriving with Mr Ezsias at 8.55am on Saturday 3 June 2006. A further batch of documents (namely copies of those originally sent to Mr Ezsias on 20 January 2004, in response to his request of  12 April 2003, which were accidentally omitted from the 2 June bundle) were sent to Mr Ezsias at the end of June 2006 (see Paul Hard Statement 30 June 2006, Paragraph 6).

117.	In his submissions, Mr Ezsias submitted that the wrong date was put onto the letter “in order to try to conceal the true date of the disclosure…This is a criminal offence under s1 of the Forgery and Counterfeiting Act 1981” (Skeleton Argument 3 September 2007, Paragraph 21), and he invited me “to consider… whether the letter [dated 22 May] was deceitfully backdated to give the impression of an earlier disclosure or whether it was deliberately withheld for the same purpose” (Statement 7 June 2006, Paragraph 3).  I have done so.  There is no evidence that the date of the letter was any more than a simple accidental error.  The National Assembly’s Defence acknowledges that disclosure was not made until 2 June.  Mr Hard set out some of the details of how the National Assembly sought to comply with this data request, in his Statement of 30 June 2006: and, in the Skeleton Argument 10 September 2007, Paragraph 56 (supported by a statement of truth from the Director of Legal Services) it is said that the National Assembly left the date of the draft on the letter, rather than the date the letter was in fact sent.  I accept that evidence.  There is no evidence whatsoever that the National Assembly made any attempt to suggest that they had given disclosure of any data before 2 June.  

118.	Mr Ezsias makes two more allegations in relation to service of these data, which can conveniently be dealt with here:

(i)	With regard to Mr Ezsias’s suggestion that the data were ready by 22 May and withheld for 10 days, I reject that too.  The statutory time limit for disclosure of the data was 28 April 2006.  Disclosure was effectively made on 3 June, about 5 weeks late.  The 2 June bundle was sent by courier to avoid any further delay, and that is hardly the action of a data controller deliberately intent on delaying access to data.  Mr Ezsias suggests that the National Assembly deliberately delayed disclosure because the appeal hearing before Elias J in the employment claim was scheduled for April 2006.  With respect to Mr Ezsias, this submission has no merit.  First, the statutory time limit did not expire until 28 April 2006, and even timely disclosure would have been too late for an April 2006 hearing.  Second, I do not know when the appeal was heard before Elias J: but his judgment was given on 25 July 2006.  That suggests that the hearing was later than April 2006.  Third, the issues before Elias J did not turn on any further disclosure that might have been made: it turned upon the respective pleaded cases of the parties, and the issues that clearly arose on the basis of those positions.  There is simply no evidence to support Mr Ezsias’s assertion that the National Assembly deliberately delayed disclosure of these data to disadvantage Mr Ezsias in his employment claim against the NHS Trust.  Mr Ezsias of course was successful in his appeal to the Employment Appeal Tribunal 

(ii)	Mr Ezsias also suggests that, in delivering the documents to Mr Ezsias’s home at 8.55am on a Saturday morning, this “must be viewed as intentional harassment and intimidation of [Mr Ezsias] and his family” (Skeleton Argument 3 September 2007, Paragraph 22).  There is no evidence that Mr Ezsias or his family felt intimidated by this single delivery, or why there might have felt intimidated.  There is certainly no evidence that this was the intention of the National Assembly.  The evidence is that the data were dispatched as soon as they were identified and the relevant documents copied and packaged.  They were sent by courier to reduce the time taken for them to be delivered (Skeleton Argument 10 September 2007, Paragraph 57: which, insofar as it contains evidence, is supported by a statement of truth).    Mr Ezsias’s home was of course the correct delivery address for disclosure.

119.	Therefore, the various suggestions made by Mr Ezsias in respect of this disclosure - which, if true, would be very serious - have no foundation whatsoever.  I have dealt with this matter in some detail, because it is but one example of Mr Ezsias making unsubstantiated allegations as to the propriety of action of the National Assembly and indeed others (such as staff of HM Courts Service).

120.	In conclusion, on the basis of my findings the National Assembly have properly complied with all of the requests for access to data, but in respect of all they have failed to comply within the statutory period of 40 days.  Has Mr Ezsias suffered any damage as a result of this failure to comply?  In my judgment, he clearly has not.  Indeed, even if he had proved the breaches he alleged, there is no compelling evidence that he suffered any actual damage as a result.

121.	Mr Ezsias relied upon two heads of loss.

122.	First, he said (Skeleton Argument 3 September 2007, Paragraph 17(c)):

“(i)	One of the agents of [the National Assembly], Care Standard Inspectorate of Wales (CSIW) in December 2003 contacted BUPA Hospitals in Cardiff and gave false information to BUPA as to the reasons for the claimant’s suspension from his duties by his employer.  This false information was given in breach of and contrary to those duties which the CSIW was obliged to observe under its own policy of reporting.  Therefore the CSIW acted either with gross negligence or in the alternative maliciously in order to cause damage and loss to the claimant.

(ii)	As a consequence the claimant suffered and continues to suffer serious financial losses and damage as BUPA prevented the claimant to carry on and undertake his private practice in BUPA hospitals.  These losses and damage were direct consequences of CSIW’s negligent or in the alternative malicious acts.  These financial losses and damages can be quantified.  Since December 2003 the claimant has been unable to carry out private practice.  Is earning from private practice in the previous year (2002/3) was in the region of £15,000/annum.  This loss is a continuing and increasing one.

(iii)	The claimant also suffered damage to his reputation as a consultant surgeon which needs to be quantified taken into account that the claimant’s skills and knowledge have been his and his family livelihood.”

In fact, Mr Ezsias has made no attempt to quantify this claim.

123.	I accept the National Assembly’s submissions in relation to this issue (Skeleton Argument 10 September 2007, Paragraphs 42-43), and particularly:

“… [Mr Ezsias] is not taking any issue in relation to his subject access requests.  [The National Assembly] submits that [Mr Ezsias] is actually making a compliant about the CSIW’s official’s contact with BUPA.  This complaint has been investigated and dismissed by the Public Services Ombudsman for Wales, and [the National assembly] refutes that it is responsible for the losses alleged…

…[T]his is an issue which is considerably outside the scope of these proceedings…”

124.	In any event, whatever the truth of these allegations might be and whatever other causes of action Mr Ezsias may have in respect of these matters - and I make no comment upon them - any loss suffered by Mr Ezsias as a result did not stem from any failure of the National Assembly to provide disclosure of data under the 1998 Act.  

125.	Second, Mr Ezsias said generally that the failure to provide these data (including the failure to comply with the statutory time limit) “caused [him] very serious disadvantages… during the investigation [by the NHS Trust]” (Skeleton Argument 3 September 2007, Paragraph 17(a)(iv)).  Although the submission was made specifically in relation to the 12 April 2003 request, in the hearing Mr Ezsias submitted that generally the National Assembly had deliberately delayed disclosure of data to frustrate his employment claim.

126.	I would make four points in relation to this suggestion.

(i)	As I have indicated, a substantial majority of the data disclosable as a result of the 12 April 2003 request were disclosed in time: only a small further amount was disclosed late, with a letter of apology (see Paragraph 109 above).  

(ii)	Mr Ezsias gives no particulars as to how his preparation for the NHS Trust’s investigation and the prosecution of his claim was hampered by the failure of the NHS Trust to disclose data within the statutory time limit, or indeed how his preparation has been hampered at all by their failure to disclose any of the data he sought through his requests and this claim.  In particular, Mr Ezsias has not sought to quantify any such damage.

(iii)	As I have indicated above (Paragraphs 51 and following), the purpose of the right to access to data is not to provide material for the other proceedings.  The Employment Tribunal has its own procedures for ensuring that full relevant disclosure is given within the context of any claim.  Mr Ezsias is pursuing that disclosure in those proceedings.

(iv)	In his oral submissions to me, Mr Ezsias said that the real detriment he had suffered from the delay, was that it had influenced the suspension investigation b y the NHS Trust.  However, (a) there is no evidence he was hampered in presenting material to that investigation, and (b) the suspension is currently the focus of the employment claim, and will be investigated in that context.

127.	In short, Mr Ezsias has singularly failed to demonstrate any damage compensatable under the 1998 Act either in respect of the National Assembly’s admitted breaches (the delay in providing disclosure beyond the 40 day statutory time limit), or indeed in respect of any other breaches alleged by Mr Ezsias even if (contrary to my findings) they had been proved. 

Issue 4:  Whether, by virtue of how this claim has been conducted, [Mr Ezsias] has suffered prejudice and if so the appropriate remedy.

128.	Mr Ezsias claims that the National Assembly have deliberately and unlawfully concealed documents from him; and they have continued to frustrate his efforts to obtain disclosure through these proceedings.  He asserts expressly that they have acted in bad faith (Skeleton Argument 20 September 2007, Paragraph 9(a)).  His particulars of these allegations are particularly set out in his Skeleton Argument 3 September 2007, Paragraphs 18-28.

129.	I have found that, other than the admitted breaches based upon delay, the National Assembly have not been in breach of any of their obligations to Mr Ezsias under the 1998 Act, following his several requests for disclosure.  With regard to the delays in disclosure, whilst unfortunate, there is no evidence upon which I could possibly find that these delays had been intentional or designed in any way to frustrate the employment claim.  It is noteworthy that the disclosures have now been made, the employment claim is still current and there is no evidence that Mr Ezsias’s preparation of that claim has been hampered by the delay.  The delays have not been at all prejudicial to Mr Ezsias.

130.	With regard to the manner in which the National Assembly have conducted this litigation, Mr Ezsias relies upon the manner in which they made disclosure following the 3 February 2006 request (which I deal with above, see Paragraphs 116-119: there is nothing in the suggestion that the Assembly behaved improperly).  He also contends that the Assembly have “repeatedly failed to comply with orders, CPR and relevant Practice Directions”, handicapping Mr Ezsias and leading to the expenditure of additional time and costs.  Mr Ezsias is clear as to why, in his opinion, the National Assembly have done this: “it has been drawn out to a considerable extent in order to hinder other ongoing legal proceedings and grind down [Mr Ezsias] both psychologically and financially”.  Again, there is no evidence whatsoever in support of this suggestion.  These proceedings have been more substantial than they would otherwise have been because of the propensity of Mr Ezsias to engage in parallel correspondence with a wide variety of personnel in the Welsh Assembly Government, followed by requests for disclosure of data which (he submits) should cover all of the persons to whom he has addressed correspondence and all others who have become involved in the investigation of his complaints as I have described above.  Despite Mr Ezsias’s beliefs, there is no evidence that the National Assembly are conspiring with the NHS Trust to defeat or hinder his employment claim by making inadequate and/or late disclosures of his personal data to which he has the right of access under the 1998 Act.

131.	The National Assembly’s conduct of this claim may not been perfect - at times they have failed to comply with time limits, for example.  However, (i) in a litigation context, their conduct of this claim has at worst been unexceptional, and given the challenges they have faced in this claim (in terms of weight of submissions and documents emanating from Mr Ezsias) they have at times performed well beyond reasonably in their conduct of the case: (ii) there is no evidence that they have ever sought improperly to use these proceedings to prejudice Mr Ezsias, for example in his employment claim: and (ii) there is no evidence that Mr Ezsias has in fact been prejudiced by any actions or failures of the National Assembly.  There is no evidence - whether in relation to their response to the requests or in their defence of this claim - that the National Assembly have acted in bad faith.

Applications

132.	Before I deal with the disposal of the claim and the particular substantive applications made at the 24 September hearing, I indicated above that Mr Ezsias has made a considerable number of procedural applications - both before and after the September hearing - and I propose to deal with those now.  They were the subject of several separate applications, issued at various times: and many are repetitive.  I will therefore deal with them in what I hope will be a convenient order.

Application to Recuse 1: Bias

133.	On 13 August 2007, Mr Ezsias issued an application that I recuse myself from the case, on the basis that at the 28 March 2007 hearing I expressed a view on the disclosability of the documents on the non-disclosable list that indicated that I had “made up my mind” on that issue, without “any hearing, without calling of witnesses, appropriate presentations and in direct breach of a Court of Appeal’s judgment”.  To compound this, it is submitted that I neither gave any judgment as to why I considered the documents not disclosable, nor did I make any order to that effect.  In predetermining the issue, Mr Ezsias submits that I exhibited actual bias, or in the alternative it would give the impression of bias to a fair-minded observer.  

134.	At the hearing, having heard submissions, I refused to recuse myself and indicated that I would give reasons in this judgment.  I do so here.

135.	I set out the relevant procedural background above (Paragraphs 18 and following).  From the 17 July 2006 hearing onwards, Judge Wyn Williams set up a procedure envisaged by Section 15(2) whereby the documents incorporating the data which the National Assembly declined to disclose would be lodged at Court (without Mr Ezsias seeing them), and the Court would come to a decision on disclosability on the basis of the documents themselves and the reasons for non-disclosure given by the National Assembly.  In the 26 October Order, it was envisaged that Judge Wyn Williams would perform that exercise without any further submissions from either party, except if he wished to have submissions on a particular issue or particular document.  When the judge was appointed to the High Court, I took over the task.  On the basis of what I read and without the need for any further submissions, I did not consider that the documents lodged as non-disclosable contained any disclosable personal data of Mr Ezsias.  

136.	Before the 28 March hearing, Mr Ezsias indicated that he wished to make further submissions and although this was unplanned and unexpected, I gave directions at the 28 March hearing enabling him to do so.  In all of the circumstances, I considered this was the correct course.  However, by giving Mr Ezsias that further opportunity, that did not mean that I could not share with him the provisional view I had come to having read the documents.  

137.	The very purpose of my reading the documents was to come to a view on disclosability.  The view to which I came - that there were no disclosable data - was not of course a view on the merits of contentious evidence of a claim before me: it was a view on whether, on a proper construction of the relevant provisions in the 1998 Act, there were any data in the documents listed in the non-disclosable list (and hidden parts of the redacted documents) that were properly disclosable.  Further, I did not find Mr Ezsias’s written submissions before the 28 March hearing - to the effect that there were disclosable data not yet disclosed - to be particularly compelling.  I considered it was right, in fairness to Mr Ezsias, that I made my views known to him.  However, I made it clear at the hearing (and by the form of order I made that day) that the views I had expressed were provisional, and were subject to any further submissions Mr Ezsias might make.  I did not make any order or give any judgment on the disclosability of the documents at that hearing precisely because I had not “made up my mind”: I had not come to a concluded view.  I had not closed my mind to any further submissions Mr Ezsias might make - indeed, it is clear from the terms of the order I made that I was anxious that he had an opportunity to make comprehensive submissions in writing and at a further hearing with a realistic time estimate: and, with respect to Mr Ezsias, no fair minded and informed observer could have come to the view that I had closed my mind.

138.	The reference to my order being “in direct breach of a Court of Appeal’s judgment” is difficult to understand.  In his Skeleton Argument 10 September 2007 (Paragraph 6), Mr Ezsias says that “the Order of 28/3/07 must be viewed as an attempt to circumvent the Court of Appeal judgment of 26/9/06”.  However, I cannot see any aspect of the 26 September 2006 judgment which bears upon my 28 March 2007 Order in that, or indeed any substantive, way.  Although they had by the time of the judgement been superceded, Auld LJ’s judgment was based upon the first set of directions appertaining (i.e. standard Part 7 directions, with a trial: see Paragraph 7): but he did not suggest that this was the only possible procedure, nor indeed necessarily the best procedure for a claim of this type.

139.	For these reasons, I refused to recuse myself.  It is not open to a party to seek to recuse a judge simply because that judge expresses views that are not in accordance with that party’s contentions.   I gave Mr Ezsias every opportunity to make good his assertion that the National Assembly had failed to disclose disclosable data.  Given the history of the case and my involvement in it, I was best placed to deal with the issues which arose at the 24 September hearing and, in my judgment, for me not to have dealt with the issues arising at that hearing would have been wasteful of time and costs - and would consequently have been unjust to the Defendants (who also have the right to a fair hearing and reasonably expeditious conclusion to litigation in which they are involved) - and would have been wrong.

Application to Recuse 2: Collusion between the National Assembly and Cardiff Civil Justice Centre/the Civil Appeals Office
  
140.	Mr Ezsias has expressed a number of concerns about suggested collusion - to his disadvantage - between the National Assembly on the one hand, and the Courts (Cardiff Civil Justice Centre and the Court of Appeal) on the other.  He even suggests that “a fair minded and informed observer could well formed the view that the defendant and the Cardiff court colluded.  Or in the alternative if not it gives the appearance of it.”  Although he has not made a discrete application, I take him to mean that, in all the circumstances, it was improper for any judge at the Cardiff Civil Justice Centre to deal with this matter further.  

141.	There is no sensible evidence in support of these assertions, or of any improper communications of any kind between the National Assembly and the Courts.  This appears effectively to be a renewal of the application for transfer of this claim out of Cardiff, which application was refused both by Judge Wyn Williams and the Court of Appeal.  There is no additional evidence to support a renewed application now. 

142.	Similarly, Mr Ezsias raised all sorts of issues concerning frankly irrelevant procedural matters, e.g. why the original case number allocation was changed and why letters and orders had taken so long to be produced by the Court (Skeleton Argument14 March 2007, Paragraph 7(ii) and (iii)).  He has applied for a Court order requiring an investigation into why this change in case number took place (it seems to have been the result of the case initially being given a County Court rather than a High Court District Registry case number), and why it took so long for documents to be sent out by the Court (this seems to have been the result of administrative pressures on the Court staff).  These matters are administrative in nature, and I understand that they have been the subject of correspondence between Mr Ezsias and the Court Manager.  They are irrelevant to the issues before the Court.  The plethora of such matters raised by Mr Ezsias has made the conduct and management of this claim - at root a fairly simple claim - all the more difficult.  Mr Ezsias has singularly failed to identify the determinative issues in this claim and focus on those issues, but has too often been sidetracked into making submissions on matters which are of no moment to his claim.

143.	In respect of all of these matters, there is nothing upon which I need to make an order.  Insofar as these matters found any application to recuse or transfer the claim out of Cardiff, no fair minded and informed observer could have come to the view that any of these matters exhibited any possible bias against Mr Ezsias or any reason why this claim could not proceed in the Cardiff District Registry before me.   

Application for Reasons for the Transfer of the claim from Judge Wyn Williams to Judge Hickinbottom

144.	This is another matter, far from the heart of the determinative issues on this claim, which has been persistently and vigorously pursued by Mr Ezsias.  

145.	I gave reasons for the transfer of this case from Judge Wyn Williams to me in open court, but have set out those reasons again in this judgment (see Paragraph 32 above).  

Application to Inspect the Court File

146.	Mr Ezsias has made several applications to inspect the Court file in relation to this claim (e.g. Skeleton Argument 14 March 2007, Paragraph 6: Application 19 October 2007: and Application 4 November 2007).  He wishes to review the file because “of possibly missing documents from the file” (Skeleton Argument 3 September 2007, Paragraph 7).  That has been the main reason for the request pressed upon me.

147.	A party does not have an absolute right to inspect a Court file.  It is dependent upon the Court’s permission.  In this case, I refuse permission.

148.	The file in this case is now very large indeed.   The inspection of any file by a party involves Court staff in some time.  It is not the purpose of a Court file to retain every document in relation to a claim.  Case management and hearing bundles are usually ordered - and were ordered in this case - to ensure that all documents relevant to a hearing are before the Court for a particular purpose.  For the 24 September hearing, the bundle eventually comprised two lever arch files with an aggregate of about 800 pages.  Not every page of those bundles will be in the Court file, nor would I expect or want them to be.  The Court simply does not have the facilities to retain such bulk of documents.  For that reason, it would be entirely pointless for Mr Ezsias to check that the Court file is “complete”, as he wishes.

149.	He has also indicated that he wishes to inspect the file because of “repeated irregularities”.  If Mr Ezsias has a complaint about the administration of his case, then he should write to the Court Manager who will investigate that concern and write back to him.  As I understand it, Mr Ezsias has no outstanding correspondence from the Court Manager at Cardiff Civil Justice Centre.  If Mr Ezsias has any outstanding matters for which it would be helpful to inspect the Court file, that is an application I would of course consider on its merits.  However, without Mr Ezsias having good reason to inspect the file, I am loath to commit scarce staff time to dealing with such an inspection.

Applications concerning the Hearing Bundle

150.	I have set out above the history of the preparation of the bundle for the 24 September hearing.  

151.	The parties of course had copies of all of the documents that were relevant to the 24 September hearing, and they each had an encyclopaedic knowledge of them.  However, for the purposes of considering the issues arising at the 26 September hearing, I was anxious myself to ensure that I had all of the relevant documents in some convenient form.  I ordered a bundle to be prepared and filed for my use at that hearing.  Because Mr Ezsias was in person (and the National Assembly had appropriate facilities at their disposal), I ordered the Defendants to prepare and file this bundle.  I did not order a copy of the bundle to be served on Mr Ezsias, because he had all of the relevant documents, and I considered it would have been unnecessarily wasteful in costs for the National Assembly to have provided him with further copies.  I am sensitive of the fact that this claim has already generated huge amounts of paper.  When the bundle was filed by the National Assembly, Mr Ezsias complained that he had not had proper input into it, and that the bundle was deficient.  However, Mr Ezsias did have both the index to the bundle and copies of all documents contained within it, and he was not at any disadvantage in not having a copy of the actual bundle provided to him by the National Assembly.  If I might say so, his knowledge of the documents and his ability to locate document in his own filing system is very impressive: and he was more than able to present his submissions on the basis of the documents with which he had prepared and which had been served upon him.  He was at no disadvantage at all in not having further copies of these documents that would have been found in any hearing bundle served upon him.   

152.	At the hearing, I was presented with further loose documents that had not been incorporated into the bundle.  Given Mr Ezsias’s complaints about the bundle being less than comprehensive - some of which had force - and that there were late submissions and enclosures not included in the bundles, I ordered the parties to review the bundle and prepare an agreed bundle after the hearing, incorporating all of the submissions and other relevant documents.  That bundle was filed on 19 October.  Whilst it did not contain anything new that I had not seen before, this reorganised bundle has assisted me greatly in the preparation of this judgment.

153.	Mr Ezsias made complaint that he had been excluded from proper input into the original hearing bundle  That complaint - whatever its merits - has been overtaken by my later order, and his input into the reorganised bundle.  

154.	With regard to the bundle filed on 19 October, Mr Ezsias has made two applications.  

155.	First (although chronologically the later), on 20 October he applied for an order that he be supplied with a full copy of the bundle.  I refuse this request.  Mr Ezsias has a copy of the index to that bundle, and indeed made an application on 19 October with regard to specific omissions etc in that bundle.  Again, he is at no disadvantage in not having further copies of documents that he already has, in the form in which I have been presented them for the purposes of preparing this judgment.  To order those further copies to be served, would simply increase further and unnecessarily the costs of the claim.

156.	Second, on 19 October, Mr Ezsias made an application to amend the contents of the bundle in the following four respects:

(i)	He asks for the addition of the judgment of Judge Wyn Williams dated 8 June 2006.  I do not know whether this judgment is available.  However, it relates to the application to transfer the claim to the Administrative Court in London, which was the subject of an unsuccessful appeal.  It is difficult to see how it could be relevant to the matters before me now.  The Order of Tuckey LJ and the judgment of Auld LJ refusing permission to appeal the judgment are in the bundle.     

(ii)	 He asks for the removal of the Appellant’s Notices in relation to his appeals to the Court of Appeal, dated 14 November 2006 and 19 April 2007.  However, these appeals were referred to at the 24 September hearing and, although these notices are not of central importance to the issues before me, they are of some relevance.  For example, I have to consider whether, in the light of the appeals being made (which challenge the procedure for this claim set up by Judge Wyn Williams).  I should proceed or stay the claim pending resolution of those appeals.  Neither party urged me to stay this claim, and I consider that I should not do so.  It seems to me to be in the interests of both parties that I proceed.  In any event, Mr Ezsias does not suggest any good reason why I should not have seen these notices: and I can think of none.

(iii) & (iv)	  He asks for the removal of the letter from the National Assembly dated 22 May 2006 under cover of which they disclosed data following the 3 February 2006 request, “as it is forged in the meaning of the Forgery and Counterfeiting Act 1981”: and also the inclusion of that Act.  I deal with this letter in Paragraphs 116-119 above.  I have found that it is not forged: the date borne by the letter (sent on 2 June) being the date of the first draft, as explained by the Director of Legal Services for the Defendants.  It is clearly a document that is relevant to the issues with which I have to deal: and is in fact a document that Mr Ezsias’s submissions required me to consider, which I have.

157.	Insofar as his applications are not dealt with elsewhere in his judgment, that deals with Mr Ezsias’s various procedural applications.

Summary

158.	In summary, I find:

(i)	The National Assembly’s search for personal data disclosable to Mr Ezsias following his requests under the provisions of the 1998 Act was reasonable and proportionate.  In all of the circumstances, it would not be reasonable for them to conduct any further search.

(ii)	Following those searches, I am satisfied that the National Assembly have disclosed to Mr Ezsias all personal data disclosable to him.

(iii)	Insofar as I am wrong in that finding, I would not in any event exercise my discretion to order disclosure of any personal data not already disclosed.

(iv)	The National Assembly breached the provisions of the 1998 Act by not disclosing disclosable personal data within the 40 day statutory time limit.  The Assembly admitted these breaches.  No damage or prejudice to Mr Ezsias resulted from them. 

159.	On the basis of the findings I have made, which seem to me to cover all of the determinative issues between the parties in this claim (except in relation to costs), I consider the appropriate order to be:

(i)	A declaration that the National Assembly were in breach of their obligations under the data Protection Act 1998, in that, although they disclosed all disclosable personal data to Mr Ezsias pursuant to his five requests, they did not do so within the statutory 40 day time limit.

(ii)	Otherwise, the claim be dismissed.

160.	However, before making any formal order I shall hear submissions on the appropriate form, and costs.  I understand that Mr Ezsias is currently abroad, and is due to return to Wales in early December.  In those circumstances, although there is no need to delay delivery of this judgment further, I will hear any applications flowing from it (including submissions on costs) at a hearing at Cardiff Civil Justice Centre on Tuesday 18 December 2007 at 10am.  Parties need not attend the formal handing down of this judgment on 23 November 2007 at 10.15am.

His Honour Judge Gary Hickinbottom
23 November 2007