(1) If the Tribunal ascertains that relevant data are held, it is conceded
that the NCND response would have been an interference with the right
in Article 8(1). The Tribunal will then have to determine whether the
holding of the data was justified and also whether the NCND response
to the request was justified under Article 8(2).
(2) If the Tribunal ascertains that no relevant data are in fact held on the
Complainant, he will have nothing to complain about under Article 8 (1)
and the Respondent will have nothing to justify under Article 8(2). The
question here is whether an NCND response, where there are in fact found
to be no relevant data and thus no risk of use or abuse of them nor any
need to refute their contents, is an interference within Article 8, because it
disturbs the state of mind of this Complainant, by not allaying his (in this
case clearly reasonable) concerns. This would apply to the state of mind of
any complainant who has any concerns, reasonable or otherwise, which he
or she is looking to have allayed, and who is met by an NCND response,
either from the authority or body in question, or indeed from this Tribunal. In
our judgment a non-committal response to a request for access to nonexistent relevant data is not capable of constituting an interference with
the right to respect for private life within Article 8(1). If no relevant data
are held, the Complainant's Article 8 right to private life has not been
interfered with, there will be nothing to disclose and the refusal to confirm
whether or not relevant data are held cannot interfere with his right to