30. In our judgment, the giving of the NCND response to a subject request is not
an interference with the Article 8 right, if no relevant data are in fact held on the
Complainant. The NCND response would be compatible with the Convention
right. No issue of justification under Article 8(2) would arise. We conclude that
the Complainant's Article 8 rights in this case depend on whether the
Respondent in fact holds relevant data on him.
31. Once the role of this Tribunal is appreciated we do not consider that it is an
"over technical approach" for the Tribunal to decline to treat a non-committal
response to a personal data access request as an interference with the right to
respect for private life cf the view of the Information Tribunal in paragraph 67 of its
decision in Baker. The existence of the independent and untrammelled right to
investigate by this Tribunal (which cannot be met by a non-committal response)
should go some way to allaying a complainant's concerns. Unlike the position as
expressed by the Information Tribunal, knowledge as to whether files are held is
not a precondition of action by the data subject so far as this Tribunal is
concerned. Belief is sufficient to entitle an individual to make a complaint under s
65 RIP A. The non-committal answer does not prevent a complaint from being
made to this Tribunal. The Tribunal is in a position, not enjoyed by an ordinary
court as in Klass, to ascertain for itself from the Respondent whether or not
relevant data are held on the Complainant and, if they are, to determine the
justification for that conduct. The belief of the Complainant that such conduct has
taken place entitles him to invoke the procedures of the Tribunal to investigate the