What is the basis for the ICO saying the private sector is better at data protection than the public?
I defended the Information Commissioner’s Office (ICO) today, over a poor Register headline which suggested they were “red-faced” about imposing monetary penalty notices on NHS bodies (of course they’re not). To their great credit, the Register reworded the headline. Shortly afterwards, the ICO issued a headline of their own in a press release
Private Sector leads the way on data protection compliance but room for improvement elsewhere
Behind this headline are four reports on the ICO’s Data Protection Act 1998 (DPA) audit activities over the last two years. Each report relates to a “sector”, so we have:
Ignore for a moment the fact that the distinction between “private” and “public” sector is increasingly an artificial one – what I want to focus on is the evidential basis for the assertions made by the ICO, and why I think they are potentially damaging to the interests of data subjects. The press release goes on to say
[the reports have] highlighted the positive approaches many private sector companies are adopting to look after people’s data. However concerns remain about data protection compliance within the local government sector and the NHS…Within the private sector, the ICO had a high level of assurance that 11 out of the 16 companies audited had policies and procedures in place to comply with the Act…In the health service only one of the 15 organisations audited provided a high level of assurance to the ICO, with the local government sector showing a similar trend with only one out of 19 organisations achieving the highest mark. Central government departments fair little better with two out of 11 organisations achieving the highest level of assurance.
Let’s stop for a second to consider the nature of the audits we are looking at. The ICO does not have a general power to audit data controllers without their consent, although he does have that power over central government data controllers. So how does a data controller come to consent to an ICO audit? Very commonly it’s a result of a self-reported data breach, or following an ICO investigation giving rise to DPA concerns. The three arms of the public sector represented in these reports are required or expected to comply with specific data protection guidance: for central government it is the Cabinet Office Data Handling Procedures, for Local Government the LGA/SOCITM Data Handling Guidelines (derived from the Cabinet Office procedures), and for the NHS, the very robust Information Governance Toolkit. Each of these contains explicit directions that a serious DPA breach be reported to the ICO.
There is, of course, no such guidance for the “private sector” (although the ICO encourages data controllers, whether public or private sector, to self-report breaches).
Similarly, public sector organisations are subject to public law obligations and public-law-based corporate governance procedures which create an expectation that any breaches be self-reported and an expectation that they will agree to a suggestion by the ICO of a consensual audit.
Private sector organisations, while they have corporate governance obligations, are quite different. Responsibility to shareholders or owners is not the same thing as a public obligation.
What this means is that there are huge questions about how representative is the sample of audited organisations cited by the ICO in support of the contention that the “private sector leads the way on data protection compliance”. Additionally, the numbers used to draw this conclusion are so small that, even if the sectors were fully comparable, I doubt whether they would have statistical significance.
I’m not going to list the numerous examples of private sector poor compliance which arguably give lie to the ICO’s contention. I’m not even going to moan much about the fact that we will see this headline unthinkingly regurgitated over the following weeks.
But what I am going to say is I think this was an irresponsible press release. It was irresponsible because I simply cannot accept the universal premise of a statement that “the private sector leads the way on data protection compliance”. And because I can imagine that, somewhere, while a public sector data protection officer is shrugging his or her shoulders and going about his or her task with an extra dose of world-weariness, somewhere else, a private sector management board is thinking that perhaps it doesn’t need to worry too much about data security, and regulation by the ICO.
I’ve had an email from a nice spokesman from the ICO press office, who wanted to give some further context, and clarified one point. He said
Motivation for agreeing to audit is undoubtedly a relevant context to the results we published, particularly given that, as you highlight, the ICO doesn’t have the power to compel organisations to submit to an audit. It isn’t true, though, that public sector audits are often the result of self-reported data breaches. In fact, most of our audits come from the ICO writing to organisations and asking them to volunteer, not as a direct result of a breach being reported.
Fair point, and I’m happy to clarify that most times the ICO invites organisations to volunteer for an audit not as a direct result of a breach being self-reported. Although I am pretty certain the ICO would not be sending that invite if he hadn’t determined, either as a result of a self-reported breach, or a complaint from a data subject, that there had been a breach of the DPA.
The spokesman went on to say
This is much the same as our approach to the private sector, though fewer private sector firms take up the opportunity, as we highlight in our report (perhaps due to the responsibility to shareholders versus public obligation argument you highlight in your blog).
I’m glad that there is, there, an implicit admission that audited public and private sector data controllers are not directly comparable. I rather wish the press release had said this.
But this next bit I’m not sure about
One of the purposes of this type of press release is to increase that take up and share best practice, by highlighting the availability of our audits.
Now, I’ve often, when training external (public sector) organisations, suggested to them that, if they feel relatively confident about their data protection compliance, they should consider inviting the ICO to audit them, because their auditors are fair, thorough and experienced (by the way, I advise those who are not confident about their compliance to get a consultant in first…). However, I’m not sure I could so readily recommend the ICO audit now, given what I maintain are the unfair comparisons which were drawn in this press release. Indeed, two public sector officers have now stated to me on twitter that this has actively dissuaded them from volunteering for an audit. That cannot be good.