What a difference an “s” made

Inaccuracy in personal data can be damaging. Inaccuracy in company data even more so…

By the interplay of section 4(4) and the fourth principle of Schedule One of the Data Protection Act 1998 (DPA) a data controller has an obligation to ensure that “personal data shall be accurate and, where necessary, kept up to date” (although if the data controller has taken reasonable steps to ensure the accuracy of the data the principle will not have been contravened).  A failure to comply with this obligation in circumstances which lead to damage on the part of the data subject can gives rise to a claim for compensation.

“Personal data”, of course, is data which relates to a living individual who can be identified from that data or from that data in conjunction with other information. But what obligation is there on a relevant organisation to process data on non-natural persons accurately? Can, for instance, a duty, breach of which may give rise to a claim in negligence, be owed to a company by Companies House which requires the latter to record data about the former accurately? This question was the key one of three preliminary issues to be determined by Mr Justice Edis in a recent case in the High Court.

The claim was brought by the person who had been Managing Director of “Taylor and Sons Limited”, a firm which, admittedly, had “suffered a setback because of the recession and the banking crisis” but traced its roots back to the late 18th Century. Nonetheless, it was in the in the process of taking to steps to raise money, reduce costs and diversify its customer base. However, at the same time, a company call “Taylor and Son Limited” (note “Son” singular) was the subject of a winding-up order in the Chancery Division of the High Court under the provisions of the Insolvency Act 1986. The judgment describes what happened next

The Order, which did not include the company number, was received by Companies House on the 12th of February 2009, on which date a bar-code confirming receipt was affixed. On 20th of February 2009 the CHIPS system (the Companies House computer system on which the information concerning registered companies is kept) was amended by the registration of the Order, not against Taylor & Son Limited, as it should have been, but against Taylor & Sons Limited, the Company… The error in this case was, therefore, describing a company as being in liquidation when it was not.

For a short period of time, therefore, until the error was noticed by Taylor and Sons‘ accountant and auditor, and amended, Companies House records were incorrect. However, and crucially, Companies House also creates and distributes what are known as “bulk products” which it sells to clients who then distribute the contents in turn to their clients. In essence these are bulletins summarising company liquidation news for those who have need to access it quickly. News of Taylor and Sons‘ apparent liquidation was included in these bulk products, and, the court found, no real attempt was made to correct the false information. In short, the error was not decisively nor widely corrected quickly.

What happened next to the company was deleterious – it went into Administration on 9th April 2009:

the Company ran out of cash and the Bank would not lend it any more….its suppliers demanded to be paid up to date before supplying any further goods or services rather than allowing the usual 30 days credit which actually extends to 90 days in real life

Questions the court had to determine were – did the error by Companies House cause the failure of the company? and did Companies House owe a duty of care to the company to record data about it accurately? (the defendant conceded that, if there was such a duty, it had been breached).

In answer to the first, the court heard detailed and compelling submissions from the claimant, and found the causation point proved

There is no evidence of any other precipitating factor, and the suggestion made by the Defendants that actions of others or of the Company in addressing the consequences of the error were new causes which break the chain of causation between the error and the administration are without foundation.

As to whether a duty of care was owed, the judge was reluctant to hold that a statutory duty existed under the provisions of the Companies Act 1996, and, in any case, did not have to decide that point, because he did hold that a common law duty existed, following the three-stage process in Caparo Industries v. Dickman [1990] 2 AC 605.

the Registrar owes a duty of care when entering a winding up order on the Register to take reasonable care to ensure that the Order is not registered against the wrong company. That duty is owed to any Company which is not in liquidation but which is wrongly recorded on the Register as having been wound up by order of the court. The duty extends to taking reasonable care to enter the Order on the record of the Company named in the Order, and not any other company

So, because of the addition of an “s”, a company went under, and Companies House is facing a damages claim which the Telegraph suggests might run to £9million.

One doubts that an inaccuracy in personal data would ever give rise to a claim that high.

The views in this post (and indeed all posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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The ICO and records management

The Tribunal is an unusual position in respect of this Appeal…”

The Freedom of Information Act 2000 (FOIA) requires a public authority, when someone makes a request for information, to say whether or not it holds it, and if it does, to disclose that information to the requester (subject to the application of any exemption). But what if it doesn’t know whether it holds it or not? What if, after it has said it can’t find the information, and after the Information Commissioner’s Office (ICO) has accepted this and issued a decision notice upholding the authority’s approach, it then discovers it held it all along? This is the situation the First-tier Tribunal (FTT) recently found itself faced with.

The facts of the case are relatively complex, but the issues turned on whether briefing notes, prepared for the Mayor of Doncaster Metropolitan Borough Council (DMBC) in the lead-up to a decision to withdraw funding for DMBC’s United Nations Day, could be found. The ICO had determined, in Decision Notice FS50503811 that

Ultimately the Commissioner had to decide whether a set of briefing notes were held by the Council. His decision, on the balance of probabilities, is that it does not

The requester appealed to the FTT, which, after initially considering the matter on the papers, ordered an oral hearing because of some apparent inconsistencies in DMBC’s evidence (I have to be frank, what exactly these were is not really clear from the FTT’s judgment (at paragraph 27). However, prior to that oral hearing DMBC located the briefing notes in question, so

the focus of the oral hearing was limited simply to establishing whether, at the time of the information request by the Appellant, DMBC knew that it held the information in the light of the searches that it had made in response to the Information Commissioner’s enquiries prior to his issuing the Decision Notice

In determining that it was satisfied that DMBC did not know, at the time of the request, that it held the information, the FTT was swayed by the fact that DMBC “even during the Information Commissioner’s enquiries, DMBC had maintained it had nothing to gain from ‘hiding’ the briefing notes” but also by the fact that DMBC owned up to poor records management practice in the period leading up to the request

In many senses it is more embarrassing for DMBC now to admit the truth that it had, historically, an unreliable and ineffective Records Management system than to continue to maintain that it could not find the requested information

It doesn’t surprise me that the FTT found as it did. What does surprise me, however, is that records management is not given a greater focus by the ICO. Although FOIA is not, primarily, a records management act, it does contain provisions relating to records management. Powers do exist both to help improve practice both generally (through guidance) and specifically (through the use of practice recommendations). As I’ve written before

section 46 of FOIA [requires] the Lord Chancellor to issue a code of practice for management of records. Section 9 of that Code deals with the need to keep records in systems that enable records to be stored and retrieved as necessary, and section 10 with the need to know what records are held and where they are.

Under section 47 of FOIA the [ICO] must promote the following of good practice by public authorities and perform his functions so as to promote the observance by authorities of the section 46 Code, as well as the requirements of the Act in general. And under section 48 he may issue a “practice recommendation” if it appears to him that the authority has not conformed with the section 46 Code. In investigating compliance with the Code he has the power (section 51) to issue an “information notice” requiring the authority to furnish him with the information. Failure to comply with an information notice can, ultimately, constitute contempt of court.

I appreciate that the ICO has a lot on its hands, but good records management is so very integral not just to good FOIA compliance, but also to good compliance with the other major statute the ICO oversees – the Data Protection Act 1998. Greater focus on records management could drive better overall compliance with information rights law.

The views in this post (and indeed all posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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The monetary penalty notice is in the post

I once heard a rumour that the famous lost HMRC disks of 2007 were not in fact lost after all: the person tasked with posting the disks had, so the rumour went, forgotten to do so, and when the intended recipient, the National Audit Office, had complained, had used the time-honoured excuse “they must be lost in the post”, thinking that this was better than owning up, and that no one would be particularly bothered. I have no idea whether this is true (quite possibly not – the subsequent Poynter report was comprehensive and might have been expected to flush something like that out) but what I think is interesting is that, even if it were, it would not have excused HMRC. The Data Protection Act 1998 (DPA) – which largely languished unloved at the time – requires (by virtue of the seventh principle in Schedule One) a data controller not to prevent specific instances of data loss, but, rather, to take appropriate organisational and technical measures to safeguard against such loss – a contravention of the Act lies in the failure to have these measures in place, not (necessarily) in the failure to prevent a specific incident. The fact that HMRC operated procedures which allowed the sending of huge and excessive amounts of sensitive personal data  by post, without encryption measures being used, meant that HMRC were manifestly in contravention of the DPA.

Fast forward seven years or so to the present, and, we hear, the Ministry of Justice (MoJ) appear to have lost a highly sensitive computer disk in the post. The Mail on Sunday reports that

The Government has been hit by a new data security scandal after a secret file on the fatal shooting of Mark Duggan by police went missing.

A computer disk containing details of the case which triggered Britain’s worst riots in a generation is thought to have been lost in the post by the Ministry of Justice.

Details are, of course, relatively scant at the moment, but it is worth noting that there is no mention of whether the disk in question was encrypted. If it wasn’t, it would be extremely hard for the MoJ to argue that it was in compliance with its DPA obligations: the view of the Information Commissioner (ICO) is that

portable and mobile devices including magnetic media, used to store and transmit personal information, the loss of which could cause damage or distress to individuals, should be protected using approved encryption software which is designed to guard against the compromise of information.

and

where such losses occur and where encryption software has not been used to protect the data, regulatory action may be pursued.

The data protection regulatory landscape was very different in 2007, and the ICO did not then have powers to serve monetary penalty notices. A serious contravention of the DPA of a kind likely to cause substantial damage or substantial distress can now result in a “fine” of up to £500,000.

The ICO is, we are told, “examining the case”. He will, no doubt, be wanting to know not only about encryption measures, but, more simply, what procedures were in place which allowed such sensitive data to be sent by post. He will also, again no doubt, bear in mind that in recent years he has already served on the MoJ, in the last eighteen months, two monetary penalties totalling £320,000 for not dissimilar failures to have appropriate safeguards in place to protect sensitive personal data.

The views in this post (and indeed all posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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FOI vs Transparency debate

Yesterday, after attending a fascinating and in-depth briefing from Network Rail on their journey towards being subject to the Freedom of Information Act 2000, I was privileged to appear on a panel debating “In a world of Freedom of Information, does voluntary transparency still matter?” Although rather daunted by the illustrious fellow panel members – the Campaign for Freedom of Information‘s Maurice Frankel, the Guardian’s Jane Dudman and Sir Alex Allan KCB1 – I delivered a short address on the subject (as did those others). Perhaps unsurprisingly, the panel were unanimous in feeling that voluntary transparency does still matter in a world of FOI, but, just as importantly, that voluntary transparency does not and should not make FOI redundant. This is what I said:

A very wise man called Tim Turner once wrote: “The point of FOI is that you get to ask about what YOU want to know, not what The Nice Man Wants To Tell You”. And this I think is the key point which distinguishes the access rights afforded to individuals under Freedom of Information and related legislation, from the transparency agenda which has led to the UK government again this week being pronounced the most open and transparent in the world, by Tim Berners Lee’s World Wide Web Foundation.

At the same time as that first place was announced, cynics amongst us might have pointed to the fact that in the 2013 Global Right to Information Ratings compiled by Access Info and the Canadian Centre for Law and Democracy, the UK was in 29th place, behind countries like Kyrgyzstan and Sierra Leone.

There’s clearly a gap in perception there, and one that is not simply explained away by questions about methodology.

In 2012 Francis Maude said “I’d like to make Freedom of Information redundant, by pushing out so much data that people won’t have to ask for it”. While this is in some ways a laudable aim, it is simply never going to wash: there will always be some information which Mr Maude doesn’t want disclosed, but which I, or, you, or someone else, does (to illustrate this one only has to look at how regularly the Cabinet Office claims FOI exemptions and refuses to disclose).

By the same token Network Rail, who have disclosed an impressive amount of valuable data over recent years, would not, I am sure, pretend that they expect only ever to disclose information in response to FOI requests, when they come under the Act’s coverage in a few months. There will clearly be information which they will not be able to disclose (and for perfectly valid reasons).

The transparency agenda cannot simply sweep away concerns about disclosure of commercially sensitive information, or of personal data, or of information which might prejudice national security. But there will always be people who want this information, and there will always be the need for a legal framework to arbitrate disputes about disclosure, and particularly about whether the public interest favours disclosure or not.

And, as a brief aside, I think there’s an inherent risk in an aggressive, or, rather, enthusiastic, approach to publication under a transparency agenda – sometimes information which shouldn’t be published does get published. I have seen some nasty erroneous, and even deliberate, disclosures of personal data within Open Datasets. The framework of FOI should, in principle at least, provide a means of error-checking before disclosure.

When FOI was in its infancy we were assured that effective and robust publication schemes would ultimately reduce the amount of time spent dealing with FOI requests – “Point them to the publication scheme” we were told…While I am sure that, on some level, this did transpire, no one I have spoken to really feels that proactive publication via a publication scheme has led to a noticeable decrease in FOI requests. And I think the same applies with the Transparency Agenda – as much as Mr Maude would like to think it will make FOI redundant, it has, and will continue to have, only a minor effect on the (necessary) burden that FOI places on public authorities.

I do not think we are going to see either the Transparency Agenda dispense with FOI, nor FOI dispense with the Transparency Agenda: they are, if not two sides of the same coin, at least two different coins in the same purse. And we should always bear in mind that public scrutiny of public authorities is not just about what the Nice Man Wants To Tell You, but is equally about what the Nasty Man Doesn’t Want To Tell You.

1I’m delighted to see from his Wikipedia entry that Sir Alex is a huge Grateful Dead fan, and that further research suggests that this isn’t just Wikipedian inaccuracy

The views in this post (and indeed all posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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UKIP Dartford and data protection compliance

The Telegraph recently highlighted a rather bizarre incident involving the sending of a letter by the secretary of UKIP’s Dartford branch. The letter purports to be from a Simon Blanchard in his capacity as, or as a representative of UKIP Dartford. It appears that Mr Blanchard had taken offence at what he said was a verbal insult directed at him by the recipient of the letter, a Mr Kemp, and chose to write expressing his annoyance both at this, and also expressing his rather extraordinary interpretation of the effect of European Union laws on the UK. But Mr Blanchard did something else – he sent copies of the letter to Mr Kemp’s neighbours. In doing so it is questionable whether Mr Blanchard, and UKIP Dartford, have complied with their obligations under the Data Protection Act 1998 (DPA).

I am presuming that UKIP Dartford is the local constituency association for UKIP. As such, to the extent that it processes personal data of people of identifiable individuals, and determines the purposes for which and the manner in which the processing occurs, it is a data controller. Constituency associations of political parties are distinct from their national parties (they are often at odds with their national parties) and many Labour and Conservative constituency associations recognise this, by registering their processing with the Information Commissioner’s Office (ICO). Indeed, as data controllers not otherwise exempt, they have a legal obligation (section 18 of the Data Protection Act 1998 (DPA)) to do so, and failing to do so, in circumstances where they are processing personal data and cannot avail themselves of an exemption, is a criminal offence (section 21 DPA). I note that UKIP Dartford don’t have an entry on the ICO’s online register – this (and the broader issue of constituency association registration) might be something the ICO should consider investigating.

Furthermore, if it is a data controller, UKIP Dartford will have a statutory obligation (section 4(4) DPA) to comply with the data protection principles. The first of these is that personal data should be processed “fairly and lawfully”. It is not immediately obvious how Blanchard came to have Mr Kemp’s name and address, but, assuming they were gathered lawfully, the sending of the letter itself may well have been fair and lawful. But where problems would be more likely to emerge, I would suggest, would be in the sending by Blanchard of copies of the letter – containing as it did Mr Kemp’s personal data – to neighbours. “Fairness” in the DPA depends a lot on data subjects’ expectations, and it is hard to believe that the recipient of such a letter would have expected it to be circulated among his neighbours.

It is possible that Mr Blanchard came about the name and address details under regulation 105 of the Representation of the People (England and Wales) Regulations 2001 (as amended), whereby local constituency parties may apply for a copy of the full electoral register. It is important to note, however that, by regulation 105(4), the register can only be used for “electoral purposes or the purposes of electoral registration”. Although one can see that “electoral purposes” might be construed broadly, it is difficult to construct an argument that the sending of the copy-letters, containing the original recipient’s personal data, could possibly have been for electoral purposes. For these reasons, a contravention of the second DPA principle would appear to be likely. That principle restricts further processing of personal data in a manner incompatible with the original purposes.

It may be that there is more to this story than is immediately apparent. Perhaps Mr Blanchard and UKIP Dartford acquired Mr Kemp’s data in a different manner. Perhaps they thought they had consent to send it his neighbours (although given that Mr Kemp’s wife complained – and received the peremptory response “There was no error made on the envelope and hope your neighbours had a good read as well” – this seems unlikely). If more details emerge I will update this post, but in the interim, I can say that the story certainly raises questions about DPA compliance.

The forthcoming general election is likely to see battles fought in many fields (I’ve already drawn attention to the possibility that the legal boundaries of electronic marketing may get pushed to the point of breach on these battlegrounds). One hopes that the ICO will be robust enough to deal with the data protection issues which will emerge, which might include excessive or disproportionate use of people’s personal electoral data.

The views in this post (and indeed all posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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Sensitive personal data exposed in Open Datasets

Since August last year I’ve been inviting the ICO to consider the issue of deliberate wholesale exposure of sensitive personal data in local authority open data. It’s still online.

Imagine, if you will, a public authority which decides to publish as Open Data a spreadsheet of 6000 individual records of adults receiving social services support. Each row tells us an individual service user’s client group (e.g. “dementia” or “learning disability”), age range (18-64, 65-84, 84 and over), the council ward they live in, the service they’re receiving (e.g. “day care” or “direct payment” or “home care”), their gender and their ethnicity. If, by burrowing into that data, one could identify information that reveals that one, and only one, Bangladeshi man in the Blankety ward aged 18-64 with a learning disability is in receipt of direct payments, most data protection professionals (and many other people besides) would recognise that this is an identifiable individual, if not to you or me, then almost certainly to some of his neighbours or family or acquaintances.

Similarly, imagine the same public authority decides to publish as Open Data a spreadsheet of nearly 7000 individual records of council housing tenants who have received Notices of Seeking Possession or Notices to Quit. Each row tells us the date individual tenant was served the notice, the council ward, the duration of the tenancy, whether it was joint or sole, the age of the tenant(s) in years, their gender, their ethnicity (if recorded), their disability status (if recorded), their vulnerability status (if recorded). If, by burrowing into that data, one could identify that reveals that one, and only one, 40-year-old Asian Indian male sole tenant with a tenancy 2.94 years old, was served a Notice of Seeking of Possession in June 2006, most data protection professionals (and many other people besides) would recognise that this is an identifiable individual, if not to you or me, then almost certainly to some of his neighbours or family or acquaintances.

If these individuals are identifiable (and, trust me, these are only two examples from hundreds, in many, many spreadsheets), then this is their sensitive personal data which is being processed by the public authority in question (which I am not identifying, for obvious reasons). For the processing to be fair and lawful it needs a legal basis, by the meeting of at least one of the conditions in Schedule Two and one in Schedule Three of the Data Protection Act 1998 (DPA).

And try as I might, I cannot find one which legitimises this processing, not even in the 2000 Order which significantly added to the Schedule 3 conditions. And this was why, when the datasets in question were drawn to my attention, I flagged my concerns up with the public authority

Hi – I notice you’ve uploaded huge amounts of data…some of it at a very high level of granularity – ie with multiple and specific identifiers. According to the definitions in recital 26 and Article 2 of Directive 95/46/EC, s1(1) of the Data Protection Act 1998, and the Information Commissioner’s Office guidance (eg “Determining What is Personal Data” and the Code of Practice on Anonymisation) this is very likely to be personal data and in many cases sensitive personal data. I’m curious to know why you are publishing such datasets in such form, and what the legal basis is to do so

Not receiving any reply, I then contacted the Information Commissioner’s Office, saying

It seems to me that they are processing (including disclosing) large amounts of sensitive personal dataI’m happy to elaborate to ICO if you want, but presume I wouldn’t need to explain exactly why I am concerned.

However, when I received the ICO case worker’s reply, I was rather dumbfounded

You have raised concerns that [redacted] is disclosing large amounts of sensitive personal data on…its website. For information to be personal data it has to relate to a living individual and allow that individual to be identified from the information. I have looked over some of the information…and it appears to be sharing generic data and figures. I could not see any information that identifies any individuals. In order to consider your concerns further it would be extremely helpful if you could provide some examples of where the sensitive personal data can be found and possibly provide a couple of screenshots.

Nonetheless, I replied, giving the two examples above, and the case worker further replied

I have now looked at the examples you have provided and agree that there is the potential for individuals to be identified from the information that [they are] publishing. We will now write to [them] about this matter to obtain some further information about its information rights practices. As this matter does not concern your personal data and relates to third party information we do not intend to write to you again about this matter

I thought the last sentence was a bit odd (nothing prevented them from keeping me informed) but took reassurance that the data would be removed or appropriately anonymised.

But nothing seemed to happen. So I chased the ICO at the end of November. No response. And now I’ve been forced to raise it with the ICO as a complaint:

I understand that you said you would not contact me again about this, but I note that the sensitive personal data is still online. I advise several public sector clients about the online publishing of datasets, with reference to the law and ICO guidance, and the lack of action on this…leaves me quite bemused – do I now advise clients that they are free to publish datasets with such specific and so many identifiers that individuals can be identified? If so, what legal basis do I point to to legitimise the processing?

Public authorities are increasingly being encouraged, as part of the transparency agenda, to make their data publicly available, and to make it available in reusable format, so that it can be subjected to analysis and further use. The ICO has produced generally helpful guidance on successful anonymisation which enables datasets to be removed of personal data. If public authorities fail to follow this guidance, and instead disclose sensitive personal data within those reusable datasets they are potentially exposing individuals to considerable and various risks of harm. Moreover, much of the data in question is gathered pursuant to the public authority’s statutory duties – in other words, data subjects have no ability to opt out, or refuse to give consent to the processing.

One has to ask what this does for the confidence of data subjects in Open Data and the transparency agenda.

I asked the ICO’s always very helpful press office if they wanted to comment, and an ICO spokesperson said: “This is an open case, and we continue to work with the council to explain our concerns about the amount of information being published.” Which raises interesting questions – if they have concerns (and I think I have amply explained here why those concerns are justified) why not take enforcement action to get the data taken down?

The views in this post (and indeed all posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

 

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Hospital episode data – confidential data uploaded by mistake

Rather hidden away in the new IIGOP annual report is a worrying and revealing report of a serious data breach involving hospital episode data

In February last year Tim Kelsey, NHS England’s National Director for Patients and Information, and vocal cheerleader for the care.data initiative, assured the public, in an interview on the Radio 4 Today programme, that in the twenty five years that Hospital Episode Statistics (HES) have been shared with other organisations

the management of the hospital episode database…there has never been a single example of that data being compromised, the privacy of patients being compromised…

However, as Sir Nick Partridge’s Review of Data Releases by the NHS Information Centre in June of last year revealed, there had been

lapses in the strict arrangements that were supposed to be in place to ensure that people’s personal data would never be used improperly

As I said at the time

One waits with interest to see whether the [Information Commissioner’s Office (ICO)] will take any enforcement action, but I think it’s important that they consider doing so, because, even though Sir Nick makes nine very sensible recommendations to HSCIC, one could be forgiven – having been given clear assurances previously, by the likes of Tim Kelsey and others – for having reservations as to future governance of our confidential medical data

Now, with the launch of the first annual report of the Independent Information Governance Oversight Panel (IIGOP), chaired by Dame Fiona Caldicott and established at the request of the Secretary of State to “advise, challenge and report on the state of information governance across the health and care system in England”, we see further evidence of HES data “being compromised, the privacy of patients being compromised”. The report informs us of an incident whereby

New inspection procedures introduced by the HSCIC had uncovered a number of organisations which were sending HES data and failing to follow data dictionary standards. This meant they were inadvertently enabling personal confidential data to enter the data base. Following an alert to the Information Commissioners’ Office this was understood as a large scale problem, although having a low level potential impact, as the affected data fields were unknown to either senders or receivers of HES data. The relevant organisations were contacted to gain their cooperation in closing the breach, without alerting any unfriendly observer to the location of the confidential details. This was important to preserve the general ignorance of the detail of the breach and continue to protect individuals’ privacy. Trusts and others were encouraged to provide named contacts who would then start cleaning up their data flows to the HSCIC. In order to manage any untoward reporting in the media, trade titles were informed and briefed about the importance of restricting their reporting to avoid any risk of leading people towards this confidential data.

Now this to me seems pretty serious: those organisations who failed to “follow data dictionary standards” by data controller organisations who were sending HES data sounds very likely to be a contravention of the data controllers’ obligation, under section 4(4) of the Data Protection Act 1998 (DPA) to comply with the seventh data protection principle, which requires that they take

Appropriate technical and organisational measures…against unauthorised or unlawful processing of personal data

Serious contraventions, of a kind likely to cause substantial damage or substantial distress, can result in the ICO serving a monetary penalty notice, under section 55A of the DPA, to a maximum of £500,000.

So, what does one make of these incidents? It’s hard to avoid the conclusion that they would be held to be “serious”, and if the data in question had been misused, there would have been the potential for substantial damage and substantial distress – public disclosure of hospital record data could have a multitude of pernicious effects – and this much is evidenced by the fact that (successful) attempts had to be made to avoid the errors coming to light, including asking journalists to avoid reporting. But were they contraventions likely to cause these things? IIGOP suggests that they had a “low level potential impact” because the data was hidden within large amounts of non-offensive data, and I think it is probably the case that the incidents would not be held to have been likely to cause substantial damage or substantial distress (in Niebel, the leading case on monetary penalty notices, Wikeley J in the Upper Tribunal accepted that the likely in s55A DPA took the same meaning attributed to it by Munby J, in R (Lord) v Secretary of State for the Home Department [2003] EWHC 2073 (Admin), namely “‘likely’ meant something more than ‘a real risk’, i.e. a significant risk, ‘even if the risk falls short of being more probable than not'”).

But a monetary penalty notice is not the only action open to the ICO. He has the power to serve enforcement notices, under s40 DPA, to require data controllers to do, or refrain from doing, specified actions, or to take informal action such as requiring the signing of undertakings (to similar effect). Given that we have heard about these incidents from IIGOP, and in an annual report, it seems unlikely that any ICO enforcement action will be forthcoming. Perhaps that’s correct as a matter of law and as a matter of the exercise of discretion, but in my view the ICO has not been vocal enough about the profound issues raised by the amalgamation and sharing of health data, and the concerns raised by incidents of potentially inappropriate or excessive processing. Care.data of course remains on the agenda, and the IIGOP report is both revealing and encouragingly critical of what has taken place so far, but one would not want a situation to emerge where the ICO took a back seat and allowed IIGOP (which lacks regulatory and enforcement powers) to deal with the issue.

The views in this post (and indeed all posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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