The future of the ICO’s funding and functions

In February of this year the House of Commons Justice Committee took evidence from the Information Commissioner and his two deputies, and in March published a lengthy, sympathetic and wide-ranging report on The functions, powers and resources of the Information Commissioner. The Committee has now published the government response, which was in the form of a letter from Lord McNally, Minister of State for Justice. With the greatest of respect for the Ministry of Justice, the response seems to be little more than a deft kick into touch. Here are some examples.

Funding

The report raised various concerns about future funding for the Information Commissioner’s Office (ICO). Firstly, it noted that the ICO cannot use the money it receives for FOI work in the form of grant-in-aid for Data Protection work, and not can it use the funding it receives for Data Protection work from notification fees for FOI work. The report recommended that

The Government should consider relaxing the governing rules around virement and overheads

Lord McNally’s response says

…my officials have been working with the ICO to explore the potential for greater flexibility in the way the ICO apportions shared costs between the Freedom of Information (FOI) and Data Protection (DP) funding streams, in line with the Committee’s recommendation

Which adds little, if any, new information.

The report also noted that, if the European draft General Data Protection Regulation (GDPR) is passed in its current form, the ICO’s main funding for Data Protection work – notification fees – will be removed. It recommended

The Government needs to find a way of retaining a feebased self-financing system for the data protection work of the Information Commissioner, if necessary by negotiating an option for the UK to retain the notification fee or introduce an alternative fee. If the Government fails to achieve this, the unappealing consequence will be that funding of the ICO’s data protection work will have to come from the taxpayer.

To which Lord McNally replied

The work we intend to undertake in partnership with the ICO will include drawing upon research commissioned by the ICO into future funding options, and analysis they have done into the effectiveness of the tiered notification fee system which has been in place since 2009. I would like to reassure the Committee that the Government is committed to ensuring that the Information Commissioner is appropriately resourced.

Er, OK, but does that really say anything at all?

Independence of ICO

The Committee had linked the issue of adequacy of resources to the ICO’s relationship with the executive. If the regulator is reliant on government grant, can it be truly sufficiently independent? Their recommendation was

With the potential removal of the notification fee through the EU Regulation, we reiterate our recommendation that the Information Commissioner should become directly responsible to, and funded by, Parliament
Previously, during a Westminster Hall debate in January, justice minister Helen Grant had been clear that the government did not think this was appropriate. Lord McNally though was – again – equivocal
Whilst there are currently no plans for the Information Commissioner to be a Parliamentary body or to be funded by Parliament, the work we are taking forward on the ICO’s long-term funding and operating model will consider the range of recommendations that have been made by your Committee and others, including Lord Justice Leveson in relation to the future powers, governance and accountability arrangements of the ICO. I look forward to updating the Committee in due course.
Custodial data protection offences
On the subject of whether, finally, custodial sanctions for section 55 data protection offences should be commenced (see Pounder et al, passim), the Committee was clear
We call on the Government to adopt our previous recommendation, as well as that of the Home Affairs Committee, the Joint Committee on the Draft Communications Data Bill and the Leveson Inquiry, and commence sections 77 and 78 of the Criminal Justice and Immigration Act 2008 to allow for custodial sentences for breach of section 55 of the Data Protection Act 1998.
On this at least Lord McNally had a small piece of actual news. The government is to consult on Lord Justice Leveson’s proposals on data protection arising from his inquiry into the culture, practices and ethics of the press
It is…the Government’s view that the recommendations require careful consideration by a wide audience. We therefore intend to conduct a public consultation on the full range of data protection proposals, including on whether to make an Order introducing custodial sentences under section 77 CJIA (a statutory requirement), which will seek views on their impact and how they might be approached.
Compulsory data protection audits
Finally, the Committee had noted the reluctance of some public sector organisations to submit to the offer of a data protection audit by the ICO. They found it “shocking” that this should be the case (sensitive souls eh?) and recommended that the power of compulsory audit should be extended (it currently applies to government departments)
We recommend the Secretary of State bring forward an order under section 41 A of the Data Protection Act to meet the recommendation of the Information Commissioner that his power to serve Assessment Notices be extended to NHS Trusts and local councils.
Lord McNally confirmed that consultation was already under way regarding the extension of this ICO audit power to compel NHS bodies to submit, but he was – you’ve guessed it – equivocal on whether local government would be similarly compelled
There are currently no plans to extend the Information Commissioner’s powers of compulsory audit to local government but the Department for Communities and Local Government are taking a partnership approach to improving local government’s compliance with data protection principles.
I can’t help seeing Lord McNally’s response as little more than a polite nod to the Justice Committee. It promises very little (other than a consultation on Leveson’s data protection proposals, which, given the continuing wrangles over the GDPR, I can’t see achieving much quickly) and delivers nothing immediate. However, the ICO tweeted this morning that it welcomed the response regarding funding and powers, so maybe the future of the independent regulator of transparency and privacy is being decided behind closed doors.
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1 Comment

Filed under Data Protection, Europe, Freedom of Information, Information Commissioner, transparency, Uncategorized

One response to “The future of the ICO’s funding and functions

  1. Pingback: No Information Rights Levy for ICO – where now for funding? | informationrightsandwrongs

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