For a decade data controllers used Durant to refuse subject access on the basis that material naming the requester was not really about them. Edem put a stop to it: a name is personal data, and biographical significance was never a threshold.
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Full name: Edem v The Information Commissioner and the Financial Services Authority
Citation: [2014] EWCA Civ 92
Court: Court of Appeal
Judgment: 7 February 2014
Subject: Whether a person’s name is personal data; the status of the Durant “biographical significance” test
Result: A name is personal data unless it is so common that, without more, the person remains unidentifiable.
Why This Matters Against HMRC
Data protection arguments matter in tax disputes for two opposite reasons, and Edem bears on both.
First, when a taxpayer makes a subject access request to HMRC, the whole exercise depends on what counts as their personal data. HMRC has historically taken a narrow view, relying on Durant v Financial Services Authority to argue that material mentioning the taxpayer is not necessarily about them and so falls outside the request.
Second, when a taxpayer makes a Freedom of Information request about HMRC’s processes, HMRC frequently redacts officers’ names, relying on the personal data exemption. Edem confirms that a name generally is personal data, which supports the redaction but also frames the balancing exercise properly rather than allowing a blanket refusal.
The Facts
Mr Edem had made a number of complaints to the Financial Services Authority about the regulation of a particular company. He then made a Freedom of Information Act request seeking to establish how those complaints had been handled.
The information sought included the names of the FSA officials who had dealt with the complaints. The FSA withheld the names on the basis that they were personal data of those individuals.
The Information Commissioner and the First-tier Tribunal took differing views, and the case turned on the correct approach to whether a name, standing alone, constitutes personal data.
The Durant Problem
In Durant v Financial Services Authority [2003] EWCA Civ 1746, Auld LJ had suggested two notions of assistance in deciding whether information was personal data: whether it was biographically significant, and whether the individual was the focus of the information.
Those observations were seized upon. For a decade, data controllers, including public bodies responding to subject access requests, used Durant to refuse disclosure of material in which the requester was named, on the basis that the information was not biographically significant or that the requester was not its focus.
That was an over-reading, and Edem corrected it.
The Ratio Decidendi
The correction to Durant
The Court held that Auld LJ’s observations had been misapplied. Biographical significance is, in Auld LJ’s own framing, a notion “that may be of assistance”, not a fundamental key to the definition. Reading it as a threshold requirement would exclude from protection a great deal of information that plainly relates to an individual.
The practical effect was to restore a wider and more natural reading of “personal data”, and correspondingly to narrow the room for a controller to refuse a subject access request on the basis that the requester is merely mentioned.
Obiter and the Current Framework
- Decided under the 1998 Act. The case concerns the Data Protection Act 1998. The definition of personal data under the UK GDPR and the Data Protection Act 2018 is expressed differently and is generally regarded as at least as wide, so the reasoning holds, but the statutory language should be checked rather than assumed.
- The FOI dimension. The case arose from a Freedom of Information request and the personal data exemption. Its reasoning on the definition applies equally to subject access, but the exemptions and balancing exercises differ between the two regimes.
- What follows from information being personal data. Establishing that material is personal data is the start of the analysis, not the end. Exemptions still apply, and against HMRC the crime and taxation exemption is usually the real obstacle.
- Common names. The qualification for names so common that the individual remains unidentifiable is real but narrow, and in a tax context is rarely available to HMRC given the surrounding context of a case file.
Using It Against HMRC
The practical value of Edem is in answering a specific refusal. Combine it with Dawson-Damer, which addresses the other standard objections.
| HMRC says | The answer |
|---|---|
| “You are only mentioned; the material is not about you” | Edem: biographical significance is not a threshold. Information identifying you is your personal data. |
| “Complying would take disproportionate effort” | Dawson-Damer: it must be evidenced. Ask which systems were searched and on what terms. |
| “You want it for your appeal” | Dawson-Damer: motive is not a bar. |
| “It is privileged” | Must be established, not asserted, and only covers what could be resisted in legal proceedings. |
| “Crime and taxation exemption” | Not a blanket. Must be applied document by document with a real assessment of likely prejudice. |
Practitioner Application
- Scope the request around identifiable categories (case history notes, officer contact logs, risk assessment records, internal correspondence referring to the taxpayer) rather than asking for “everything”.
- Pre-empt the Durant argument. Where HMRC says the material is not “about” the taxpayer, cite Edem and point out that biographical significance assists only in borderline cases.
- Expect officers’ names to be redacted and consider whether you actually need them. Often the content matters more than the identity, and conceding the redaction speeds up the response.
- Run a parallel FOI request for the policy and guidance framework, which is not personal data and is subject to a different regime.
- Make the request early. Timeline evidence from HMRC’s own notes feeds directly into s29(5), behaviour, reasonable excuse and public law arguments, and it takes time to obtain and analyse.
- Escalate methodically: internal review, then the Information Commissioner, then the tribunal or court where the material genuinely matters to the tax dispute.
Frequently Asked Questions
Is a person's name personal data?
Yes, unless it is such a common name that, without further information, the individual would remain unidentifiable. Edem v Information Commissioner [2014] EWCA Civ 92 settled the point and made clear that no biographical significance test has to be satisfied first where the information obviously relates to an identifiable individual.
Can HMRC refuse a DSAR because I am only mentioned in passing?
That argument relies on an over-reading of Durant, and Edem corrects it. Biographical significance and focus are notions that may assist in genuinely borderline cases where it is unclear whether information relates to an individual at all. They are not thresholds to be crossed before information about an obviously identifiable person becomes their personal data.
Does Edem mean HMRC must hand over officers' names?
No. It means the opposite in that context. Because officers’ names are their personal data, HMRC can rely on the personal data exemption to redact them in response to a Freedom of Information request. What Edem does is frame the exercise properly rather than allowing blanket refusals. In practice the content usually matters more than the identity.
Is Edem still good law under the UK GDPR?
The reasoning holds. The case was decided under the Data Protection Act 1998, and the definition of personal data under the UK GDPR and the Data Protection Act 2018 is expressed differently but is generally regarded as at least as wide. The statutory language should be checked rather than assumed, but the correction to the over-reading of Durant is not in doubt.
What is the real obstacle to a DSAR against HMRC?
Usually not the definition of personal data but the crime and taxation exemption, which allows HMRC to withhold data where disclosure would be likely to prejudice the assessment or collection of tax. That is a different exemption from privilege and from proportionality, and the key point is that it is not a blanket. It must be applied document by document with a real assessment of likely prejudice.