In our regular series, a group of experts from Liberty and the Public Law Project answer questions on human rights issues

Q My client was the subject of numerous allegations of criminal damage at his local authority-owned home and local shops.

No action was taken against him.

He was then rehoused by a new housing association.

Having felt ostracised by his new landlords and the community, he made some enquiries and discovered that the local authority had disclosed the unproven allegations to the housing association and to some of the local shop owners.

Is there anything that this client, or clients generally, can do when their privacy is interfered with in this way? What rights does my client have in relation to the disclosure by the local authority of the unproven allegations?

A It is recognised by case law that disclosure of this type of information falls within the ambit of article 8 of the European Convention on Human Rights - the right to a private life.

It also raises issues under the Data Protection Act 1998 (DPA), although these are not addressed here.

For this type of disclosure to be lawful, both substantive and procedural requirements must be met (see R (A) v National Probation Service [2003] EWHC 2910 (Admin).

Any use of a blanket approach to disclosure or starting with a presumption of disclosure will fail the substantive requirement of article 8 (see Court of Appeal judgment in R v Chief Constable of the North Wales Police & Others, ex parte Thorpe & Anor [1999] QB 396 and A (above)).

In R v A Local Authority in the Midlands & A Police Authority in the Midlands, ex parte LM [2000] UKHRR 143, Mr Justice Dyson set out the factors a local authority should consider before disclosing allegations:

- Its own belief as to the truth of the allegation;- The interest of the third party in obtaining the information, and; - The degree of risk posed by the person if disclosure is not made.

Furthermore, Mr Justice Dyson held that a balancing exercise was required looking at all the relevant circumstances and that disclosure should only be made where there is a pressing social need.

He recognised that it may be easier to make out a pressing need for disclosure to one person or group of persons than another.

In X v Chief Constable of West Midlands Police [2004] EWHC 61 (Admin), the scope of the balancing exercise was set out by Mr Justice Wall: 'It is not enough for the decision maker simply to say that he has carried out a balancing exercise.

He has to identify the factors he has weighed and explain why he has given weight to some and not others.'

Disclosure to private companies raises more problematic issues in that disclosure by a private company will not engage article 8 and the DPA may not always prevent further disclosure of the material by the private company.

The fact that disclosure is made to a private company is not decisive.

However, Mr Justice Beatson in R (A) v National Probation Service recognised that: 'There may be difficulties when contemplating disclosure to a person who is not constrained by the duties that constrain a public body and its employees, and these difficulties should be taken into account.'

As well as conforming with the above, to be lawful the subject of the allegations should be afforded the opportunity to make representations on the relevant material and on the issue of disclosure (see X v Chief Constable of West Midlands Police).

The exception is that where to do so would be wholly impractical or defeat the purpose of disclosure if the subject was informed (see Woolgar v Chief Constable of Sussex [2000] 1 WLR 25).

The first step is to contact the local authority and ask for details of the allegations disclosed, and the reason disclosure was made.

The response from the local authority should confirm whether or not both the substantive and procedural requirements for disclosure have been met.

If the response fails to meet the requirements set out earlier, the decision to disclose the allegations is subject to judicial review proceedings.

Those proceedings would be brought either to prevent future disclosure or, in relation to a disclosure that has already been made, to seek a declaration that such a disclosure would be unlawful, and damages for violation of article 8.

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