Author Archives: Jon Baines

August 28, 2014 · 1:30 pm

A fishy way of boosting party membership?

A tweet today referred me to a New Statesman article from October last year which contains what I think are actually quite serious allegations against Tory MP Douglas Carswell (who has today announced his intention to resign his seat and re-stand for UKIP) or, perhaps, against his local party machine. The magazine alleges that

A snout rang with the tale of an Essex man who went along to a Clacton fish-and-chip supper organised by the local MP, Douglas Carswell. The chap paid his £10, enjoyed his cod and then listened to the debate before going home unconvinced by the Tory case on Europe. So imagine his perturbation at a letter from Carswell’s office informing him that his tenner would be converted into membership of the constituency association unless he wrote back renouncing the party. The chap couldn’t be bothered to reply and – hey presto! – an unwanted Tory membership card duly popped through his letter box.

I do not know if if this is true*. I’ve asked Mr Carswell via his twitter account whether it is, but, understandably, he may have more pressing priorities today. He was certainly in the habit of hosting such events, as his personal blog shows.

But if it is true, it raises concerns about the handling of constituents’ personal data. The second principle of the Data Protection Act 1998 (DPA) provides that

Personal data shall be obtained only for one or more specified and lawful purposes, and shall not be further processed in any manner incompatible with that purpose or those purposes

and by section 4(4) of the DPA a data controller (the person or persons who determine the purposes for which and the manner in which any personal data are, or are to be, processed) must comply with the eight data protection principles. Failure to do so renders the data controller liable to private legal action by aggrieved data subjects, as well as regulatory enforcement action by the Information Commissioner (which can consist of monetary penalties to a maximum of £500,000 for especially serious contraventions). Mr Carswell’s entry on the Commissioner’s register confirms he accepts his status as data controller, as does the entry for his local Conservative Constituency Association. Any personal data of a constituent attending fish-and-chip suppers had to processed in accordance with eight principles, and wrongly recording someone as a member of a political party would involve the processing of sensitive personal data (a category which includes information about political allegiance, and which is afforded even higher protection).

And, as well as being in contravention of the second principle, such processing would be in breach of the first, which requires that personal data be processed fairly and lawfully. I’m not going to make a party political point, but as of today, even Mr Carswell might feel that, in broader terms, it would be particularly unfair to wrongly categorise someone as a member of the Tory party.

*If Mr Carswell refutes the allegations in the story I will be very happy to amend this blog post accordingly

1 Comment

Filed under Data Protection, Information Commissioner

Tagged as , ,

August 24, 2014 · 12:22 pm

Twitter timeline changes – causing offence?

@jamesrbuk: Well that’s jarring: Twitter just put a tweet into my feed showing a still from the James Foley beheading video, from account I don’t follow

When the Metropolitan Police put out a statement last week suggesting that merely viewing (absent publication, incitement etc) the video of the beheading of James Foley, they were rightly challenged on the basis for this (conclusion, there wasn’t a valid one).

But what about a company which actively, by the coding of its software, communicates stills from the video to unwilling recipients? That seems to be the potential (and actual, in the case of James Ball in the tweet quoted above) effect of recent changes Twitter has made to its user experience. Tweets are now posted to users’ timelines which are not from people followed, nor from followers of people followed

when we identify a Tweet, an account to follow, or other content that’s popular or relevant, we may add it to your timeline. This means you will sometimes see Tweets from accounts you don’t follow. We select each Tweet using a variety of signals, including how popular it is and how people in your network are interacting with it. Our goal is to make your home timeline even more relevant and interesting

I’m not clear on the algorithm that is used to select which unsolicited tweets are posted to a timeline, but the automated nature of it raises issues, I would argue, about Twitter’s responsibility and potential legal liability for the tweets’ appearance, particularly if the tweets are offensive to the recipient.

Section 127 of the Communications Act 2003 says

A person is guilty of an offence if he—

(a)sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or

(b)causes any such message or matter to be so sent.

The infamous case of DPP v Chambers dealt with this provision, and although Paul Chambers was, thankfully, successful in appealing his ridiculous conviction for sending a menacing message, the High Court accepted that a tweet is a message sent by means of a public electronic communications network for the purposes of the Communications Act 2003 (¶25).

A still of the beheading video certainly has the potential to be grossly offensive, and also obscene. The original tweeter might possibly be risking the committing of a criminal offence in originally tweeting it, but what of Twitter, inserting into an unwilling recipient’s timeline?

Similarly, section 2 of the Terrorism Act 2006 creates an offence if a person is reckless at whether the distribution or circulation of a terrorist publication constitutes a direct or indirect encouragement or other inducement to the commission, preparation or instigation of acts of terrorism (it’s possible this is the offence the Met were -oddly – hinting at in their statement).

I’m not a criminal lawyer (I’m not even a lawyer) so I don’t know whether the elements of the offence are made out, nor whether there are jurisdictional or other considerations in play, but it does strike me that the changes Twitter has made have the potential to produce grossly offensive results.

Leave a comment

Filed under police, social media

Tagged as , ,

August 22, 2014 · 4:05 pm

The Savile Tapes – ICO says request for audio was vexatious

There is no index of character so sure as the voice – Benjamin Disraeli, Tancred

In October 2013 Surrey Police disclosed, in response to a request made under the Freedom of Information Act 2000 (FOIA) the transcripts of police interviews (under caution) of Jimmy Savile. The Information Commissioner’s Office ICO) has now ruled on a related request, which was for the actual audio recordings of the same interview, and, rather surprisingly, the ICO has agreed with the Police that they did not have to comply with the request, on the grounds that it was vexatious.

Until relatively recently it was difficult to rely on section 14(1) of FOIA (“a public authority [need not] comply with a request for information if the request is vexatious”) simply because the costs burden of dealing with it was too great. The ICO’s guidance did advise that one of the factors to bear in mind when considering whether a request was vexatious was “Would complying with the request impose a significant burden in terms of expense and distraction?”, but in general, for a public authority to refuse to comply with a FOIA request because of the costs, it had to be able to claim that the cost of compliance exceeded the appropriate limit (section 12 FOIA). However, a decision of the First-tier Tribunal (FTT) in 2012 appeared to shift the ground somewhat. Although FTTs’ decisions are not precedent, it was notable that a public authority (the IPCC in this case) was said to be entitled to rely on section 14(1) on the basis that

A request may be so grossly oppressive in terms of the resources and time demanded by compliance as to be vexatious, regardless of the intentions or bona fides of the requester. If so, it is not prevented from being vexatious just because the authority could have relied instead on s.12

As the always-excellent Pantopticon blog said at the time

This will be welcomed by those who find themselves unable to rely on section 12 due to the restricted list of activities which can be taken into account for cost purposes

but the context in that particular case meant that, in fact, the intentions and bona fides of the requester were relevant

The present requests were, in our opinion, not just burdensome and harassing but furthermore wholly unreasonable and of very uncertain purpose and dubious value…We are by no means convinced of [the requester’s] good faith in making it

In the leading case on section 14(1) – IC v Dransfield [2012] UKUT 440 (AAC) – Wikeley J said that it was helpful, when considering whether a FOIA request is vexatious, to consider four “broad issues or themes”

(1) the burden (on the public authority and its staff); (2) the motive (of the requester); (3) the value or serious purpose (of the request) and (4) any harassment or distress (of and to staff)

but that ultimately, the test amounts to

is the request vexatious in the sense of being a manifestly unjustified, inappropriate or improper use of FOIA?

The ICO’s guidance, amended in light of Dransfield reframes this slightly and says that the

the key question a public authority must ask itself is whether the request is likely to cause a disproportionate or unjustified level of disruption, irritation or distress

The ICO draws on this guidance in the Savile decision, but, notably, appears to give considerable credence to the police’s evidence regarding the disruption – the burden – that redacting the audio of the interviews would cause, but does not appear to have interrogated this assertion in any depth. Moreover, the ICO notes its lack of expert knowledge on the subject of redaction, but nothing (other than, presumably, limited resources) prevented it from consulting an expert. Given that this appears to have been the primary evidence for the finding of vexatiousness (the ICO accepted that the requester’s motives were not intended to cause disruption or harassment) and given that the ICO accepted that there was a “qualitative difference” between the written transcripts and the audio (“The speed, volume, expressiveness and intonation of the actual speech may be considered to shed more light on how Savile responded to what was put to him in the interview”) it is difficult to see how the ICO decided that request could have been vexatious, rather than just of a level of annyoance and disruption it accepts a public authority must absorb. The request, using Wikeley J’s formulation, was not improper, it was not inappropriate – and was it really, therefore, a “manifestly unjustified use of FOIA”?

One hopes the bar of vexatiousness has not been lowered too far.

 

31 Comments

Filed under Freedom of Information, Information Commissioner, police, vexatiousness

Tagged as , , ,

August 21, 2014 · 7:46 pm

Red light for ICO spam text “fines”

A week ago I noted that the Information Commissioner’s Office (ICO) had effectively conceded that, since the Upper Tribunal’s decision in the Niebel case, it could not realistically serve monetary penalty notices (MPNs) on spam texters. I observed that

the result of the Niebel litigation has been to remove their powers to serve MPNs for spam texts, [with the ICO saying] it had “largely [rendered] our power to issue fines for breaches of PECR involving spam texts redundant”.

This perception has been reinforced by the press release today from the ICO, reporting a raid on a claims management call centre “thought to be connected to a spam text operation”. Information and hardware were seized in the raid, but the ICO says it

will now consider whether an enforcement notice compelling the organisation to comply with the rules regarding text marketing can be issued

Notably, no reference to an MPN is made. To recap, MPNs can be served under section 55A of the Data Protection Act 1998 to serve such a notice if there has been a serious contravention of the Privacy and Electronic Communications (EC Directive) Regulations 2003 (PECR) of a kind likely to cause substantial damage or substantial distress. The Niebel litigation, in very broad terms, cast doubt on whether receiving spam texts could ever cause substantial damage or substantial distress (as opposed to, say, irritation).

Whether this Llanelli operation was in contravention of the law, and if so what sanctions will flow will no doubt be determined on the basis of the seized information and other information.

And although enforcement notices are serious sanctions, with breach of one being a criminal offence (although not a recordable one) whether people running spam texting operations see them as a real deterrent is another matter.

 

 

Leave a comment

Filed under Data Protection, Information Commissioner, marketing, monetary penalty notice, PECR, Upper Tribunal

August 21, 2014 · 4:34 pm

Jackals among the tombs*

The Information Commissioner has ordered disclosure by the Metropolitan Police of the ages of the deceased children whose identities were used by the ‘Special Demonstration Squad’

UPDATE 23.09.14: The latest listings from the Information Tribunal reveal that the Met are appealing the ICO decision :END UPDATE

UPDATE 07.01.15: The Met clearly decided to withdraw their appeal, and disclosed the information :END UPDATE

In Frederick Forsyth’s novel The Day of the Jackal the protagonist uses a heartless, but, at the time of the novel’s writing, well-known, method of assuming a false identity. He visits graveyards until he finds the gravestone of a dead child who would have been born about the same time as him, then purchases the child’s birth certificate, which he uses to obtain a fake passport. In 2003 Forsyth said

I asked a forger how to get hold of a passport. He told me there were three ways. Steal one and substitute a photograph. Bribe an official for one ‘en blanc’ in which you can fill in your details. Or apply for one under a false name

In February 2013 the Home Secretary, Theresa May, announced that the existing investigation into undercover policing in the Metropolitan Police Service would now be headed by the Chief Constable of Derbyshire Police. This was in part because of serious allegations aired in the Guardian about a covert police officer apparently adopting the identity of a baby named Rod Richardson, who had died at the age of two days old, in 1973.

The ensuing first report into what had become Operation Herne found that there was

 both documentary proof and witness accounts to confirm that the genuine details of deceased children were extensively used by members of the SDS until around 1995 so as to create cover identities and thereby enable the officers to infiltrate a range of violent protest groups

It described the practice as “morally repugnant”, effectively excused it as being necessary within the constraints of the time, but did acknowledge that

There is understandable public, political and media concern about the use of the identities of deceased children, irrespective of the context, of the operational rationale, of any perceived necessity and of any legal considerations

 Although it said that the issue should not detract from the importance of the tactic of undercover policing.

Perhaps the Met had this in mind when they refused to disclose, in response to a request made under the Freedom of Information Act 2000 (FOIA), the mere ages of the 42 dead children whose identities the report either confirmed were or were considered as highly likely to have been (ab)used. The Met placed perhaps most weight on the fact that disclosing this information would allow officers to be identified (thus engaging the FOIA exemption at section 40(2)), but the Information Commissioner’s Office (ICO) was distinctly unimpressed with this argument

 the Commissioner does not consider the age of a child who dies at some point over a forty year period meets the criteria of being the ‘personal data’ of an undercover officer as the age alone is simply too far removed to make any such link

Nor, for a similar reason, were the exemptions at section 38 (prejudice to health and safety) and section 24 (safeguarding national security) engaged: if officers could not be identified from this information then their health and safety could not be prejudiced and there was no compromise to the need to safeguard national security.

The ICO did concede that exemptions at section 30 was engaged. This exemption deals – broadly – with investigations conducted by relevant public authorities into potential criminal offences, and information which relates to the obtaining of information from confidential sources. However, and ultimately, the public interest favoured disclosure. The ICO found particularly compelling, as will many, the following submission from the requester

There is…a clear public interest with regards to the hundreds of thousands of families who lost a child during the relevant period. Any of these families may fear that their relative’s details were used by police officers without consent. The question of whether the 42 families should be told is complex. By confirming which ages were used, the MPS would also be confirming which ages were not used. This information could help answer the questions of tens of thousands of families for each any [sic] age that is identified as not having been used

Perhaps, if it transpires (the Met can, of course, appeal) this FOIA disclosure will, even more than most, serve a public interest.

*Faith, like a jackal, feeds among the tombs, and even from these dead doubts she gathers her most vital hope – Herman Melville

1 Comment

Filed under Freedom of Information, Information Commissioner, police

Tagged as , ,

August 19, 2014 · 6:39 pm

One for the Environmental Information Regulations + Data Protection nerds

In 2010 the Court of Justice of the European Union (CJEU) held that, insofar as they required the automatic publication of the name and other particulars of natural persons (as opposed to legal persons) of beneficiaries of funds deriving from the European Agricultural Guarantee Fund (EAGF) and the European Agricultural Fund for Rural Development (EAFRD), certain articles of European Council Regulation (EC) No 1290/2005 of 21 June 2005 on the financing of the common agricultural policy were invalid. This was because they imposed an obligation to publish personal data relating to these beneficiaries (who might be private individuals or sole traders) without permitting criteria such as the periods, frequency and amounts involved to be considered.

Rip-roaring start to a blog post eh?

In the words of the First-tier Tribunal (Information Rights) (FTT) which has recently had to consider the impact of those CJEU cases on an Environmental Information Regulations 2004 (EIR) case

[the CJEU] ruled that such a requirement for publication was incompatible with an individual’s right for privacy where the agreement holder concerned was a private individual or sole trade

The relevance of the European judgments was that Natural England, which had until 2010 published information about beneficiaries of funds granted to farmers and landowners under the European Stewardship Agreement (ESA), even when it consisted of personal data of private individual or sole trader beneficiaries, ceased such automatic publication and removed previously published information from its website. This was despite the fact applicants for an ESA had, until 2010, been given a privacy notice in a handbook which explained that the information would be published, and had signed a declaration accepting the requirements.

Notwithstanding this, when it received a request for agreements reached with farmers and landowners in the River Avon flood plains area, Natural England decided that the personal data of the beneficiary (there appears to have just been one) was exempt from disclosure under regulations 12(3) and 13 of the EIR (which broadly provide an exception to the general obligation under the EIR to disclose information if the information in question is personal data disclosure of which would be in breach of the public authority’s obligations under the Data Protection Act 1998 (DPA)).

The Information Commissioner’s Office had agreed, saying

although consent for disclosure has been obtained [by virtue of the applicant’s declaration of acceptance of the handbook’s privacy notice], circumstances have changed since that consent was obtained. As Natural England’s current practice is not to publish the names of those who have received grants with the amounts received, the Commissioner is satisfied that the expectation of the individuals concerned will be that their names and payments will not be made public.

However, the FTT was not convinced by this. Although it accepted that it was possible “that the applicant no longer expected the relevant personal data to be disclosed” it considered whether this would nevertheless be a reasonable expectation, and it also took into account that the effect of the CJEU’s decision had not been expressly to prohibit disclosure (but rather that the validity of automatic publication had been struck down):

When one combined the facts that an express consent had been given, that there had been no publicity by NE or mention on its website of the ECJ decision and finally, that the effect of that decision had not, in the event been to prohibit disclosure, [the FTT] concluded that such an expectation would not be reasonable

Furthermore, given that there was no real evidence that disclosure would cause prejudice or distress to the applicant, given that some identifying information had already been disclosed into the public domain and given that there was a legitimate interest – namely “accountability in the spending of public monies” – in the information being made public (and disclosure was necessary to meet this legitimate interest) the disclosure was both fair and supported by a permitting condition in Schedule 2 of the DPA. For these reasons, disclosure would not, said the FTT, breach Natural England’s obligation to process personal data fairly under the first data protection principle.

So maybe not the most ground-breaking of cases, but it is relatively rare that an FTT disagrees with the ICO and orders disclosure of personal data under the EIR (or FOI). The latter is, after all, the statutory regulator of the DPA, and its views on such matters will normally be afforded considerable weight by any subsequent appellate body.

Leave a comment

Filed under Data Protection, Environmental Information Regulations, Europe, Freedom of Information, Information Commissioner, Information Tribunal

Tagged as , , ,

August 17, 2014 · 10:14 am

ICO indicates that (non-recreational) bloggers must register with them

I think I am liable to register with the ICO, and so are countless others. But I also think this means there needs to be a debate about what this, and future plans for levying a fee on data controllers, mean for freedom of expression

Recently I wrote about whether I, as a blogger, had a legal obligation to register with the Information Commissioner’s Office (ICO) the fact that I was processing personal data (and the purposes for which it was processed). As I said at the time, I asked the ICO whether I had such an obligation, and they said

from the information you have provided it would be unlikely that you would be required to register in respect of your blogs and tweets

However, I asked them for clarification on this point. I noted that I couldn’t see any exemption from the obligation to register, unless it was the general exemption (at section 36) from the Data Protection Act 1998 (DPA) where the processing is only for “domestic purposes”, which include “recreational purposes”. I noted that, as someone writing a semi-professional blog, I could hardly rely on the fact I do this only for recreational purposes. The ICO’s reply is illuminating

if you were blogging only for your own recreational purposes, it would be unlikely that you would need to register as a data controller. However, you have explained that your blogging is not just for recreational purposes. If you are sharing your views in order to further some other purpose, and this is likely to impact on third parties, then you should consider registering.

I know this is couched in rather vague terms – “if”…”likely”…”consider” – but it certainly suggests that merely being a non-professional blogger does not exempt me from having to register with a statutory regulator.

Those paying careful attention might understand the implications of this: millions of people every day share their views online, in order to further some purpose, in a way that “is likely to impact on third parties”. When poor Bodil Lindqvist got convicted in the Swedish courts in 2003 that is just what she was doing, and the Court of Justice of the European Union held that, under the European Data Protection Directive, she was processing personal data as a data controller, and consequently had legal obligations under data protection law to process data fairly, i.e. by not writing about a fellow churchgoer’s broken leg etc. without informing them/giving them an opportunity to object.

And there, in my last paragraph, you have an example of me processing personal data – I have published (i.e. processed) sensitive (i.e. criminal conviction) personal data (i.e. of an identifiable individual). I am a data controller. Surely I have to register with the ICO? Section 17 of the DPA says that personal data must not be processed unless an entry in respect of the data controller is included in the register maintained by the ICO, unless an exemption applies. The “domestic purposes” exemption doesn’t wash – the ICO has confirmed that1, and none of the exemptions apply. I have to register.

But if I have to register (and I will, because if I continue to process personal data without a registration I am potentially committing a criminal offence) then so, surely, do the millions of other people throughout the country, and throughout the jurisdiction of the data protection directive, who publish personal data on the internet not solely for recreational purposes – all the citizen bloggers, campaigning tweeters, community facebookers and many, many others…

To single people out would be unfair, so I’m not going to identify individuals who I think potentially fall into these categories, with the following exception. In 2011 Barnet Council was roundly ridiculed for complaining to the ICO about the activities of a blogger who regularly criticised the council and its staff on his blog2. The Council asked the ICO to determine whether the blogger in question had failed in his legal obligation to register with the ICO in order to legitimise his processing of personal data. The ICO’s response was

If the ICO were to take the approach of requiring all individuals running a blog to notify as a data controller … it would lead to a situation where the ICO is expected to rule on what is acceptable for one individual to say about another. Requiring all bloggers to register with this office and comply with the parts of the DPA exempted under Section 36 (of the Act) would, in our view, have a hugely disproportionate impact on freedom of expression.

But subsequently, the ICO was taken to task in the High Court on this general stance (but in unrelated proceedings) about being “expected to rule on what is acceptable for one individual to say about another”, with the judge saying

I do not find it possible to reconcile the views on the law expressed [by the ICO] with authoritative statements of the law. The DPA does envisage that the Information Commissioner should consider what it is acceptable for one individual to say about another, because the First Data Protection Principle requires that data should be processed lawfully

And if now the ICO accepts that, at least those bloggers (like the one in the Camden case) who are not solely blogging for recreational purposes, might be required to register, it possibly indicates a fundamental change.

In response to my last blog post on this subject someone asked “why ruffle feathers?”. But I think this should lead to a societal debate: is it an unacceptable infringement of the principles of freedom of expression for the law to require registration with a state regulator before one can share one’s (non-recreational) views about individuals online? Or is it necessary for this legal restraint to be in place, to seek to protect individuals’ privacy rights?European data protection reforms propose the removal of the general obligation for a data controller to register with a data protection authority, but in the UK proposals are being made (because of the loss of ICO fee income that would come with this removal) that there be a levy on data controllers.

If such proposals come into effect it is profoundly important that there is indeed a debate about the terms on which the levy is made – or else we could all end up being liable to pay a tax to allow us to talk online.

1On a strict reading of the law, and the CJEU judgment in Lindqvist, the distinction between recreational and non-recreational expressions online does not exist, and any online expression about an identifiable individual would constitute processing of personal data. The “recreational” distinction does not exist in the data protection directive, and is solely a domestic provision

2A confession: I joined in the ridicule, but was disabused of my error by the much better-informed Tim Turner. Not that I don’t think the Council’s actions were ill-judged.

 

10 Comments

Filed under Data Protection, Directive 95/46/EC, Information Commissioner, social media

Tagged as , , , ,

August 16, 2014 · 6:29 pm

Wacky FOI requests – with serious motives?

Not for the first time the Local Government Association (LGA), an almost entirely public-funded association of first- and second-tier local councils in England and Wales, has produced a press release bemoaning the fact that its members have to deal with “wacky FOI requests”. Peter Fleming, of the LGA’s Improvement Board, is quoted as saying

While the majority of requests to councils are for details of council policy and expenditure, some of the FoI requests received do not relate very closely to the services they are focused on providing every day of the year. Councils are working very hard to keep local communities running as efficiently as possible during these challenging financial times and anything which distracts from that can affect the value for money that taxpayers receive

Examples of “wacky requests” are given, and the implication is very much that the requesters were wasting public money by making them. So let’s have a look at them:

Please list all the types of animals you have frozen since March 2012, including the type and quantity of each animal?
How very wacky. Or is it? Some councils freeze dead dogs and cats found by the roadside so that concerned or distressed owners of lost animals can try to locate them. Maybe that practice is beyond what councils need to do, and it certainly involves public expenditure. What is so wrong with someone wanting to look into the practice by making a relevant FOI request? Indeed, at least one council makes the information available as a dataset.
How many times has the council paid for the services of an exorcist, psychic or religious healer? Were the services performed on an adult, child, pet or building?
How very wacky. However, at least one council has previously been identified as paying an exorcist to remove a poltergeist from a tenancy. If such extraordinary use of public money were repeated elsewhere this would be a scandal, and it doesn’t seem too wrong to make an FOI request to establish if that might be the case.
Please can you let me know how many roundabouts are located within your council boundaries?
How wacky. But, research suggests that optimal use and placement of roundabouts on a highway network reduces delays and accidents, with consequent potentially large savings to the public purse. It seems entirely legitimate to request information like this, perhaps in pursuance of an investigation into whether a council is apportioning its resources properly when it comes to highways management.
What precautions, preparations, planning and costings have been undertaken in the case an asteroid crashes into Worthing, a meteorite landing in Worthing or solar activity disrupting electromagnetic fields?
How wacky. In fact, yes it is, despite what former MPs say. And despite the fact that, yes, I know there is always a risk of asteroidal impact. Move along.
How many holes in privacy walls between cubicles have been found in public toilets and within council buildings in the last 10 years?
How wacky. Not at all: the Home Office itself identifies voyeurism as a form of harassment and anti-social behaviour. Councils have statutory duties to prevent anti-social behaviour. Why is a request about one aspect of this so wacky?
How many bodies are there in mortuaries that have been unclaimed for ten years? How long have these bodies been in the mortuary? How old were they when they died? Is it possible to have the names of these people?
How wacky. Well, bear in mind that local authorities have a statutory duty to pay for burial or cremation of unclaimed bodies in their area. Perhaps a request for this information is aimed at investigating whether the council was saving money by disregarding its duties?
How many people in the town have a licence to keep a tiger, lion, leopard, lynx or panther as a pet?
How wacky. Why? There might be any number of reasons to make this request – councils have statutory duties to ensure that licences to own dangerous animals are only issued subject to rigid and specific conditions. A large number of dangerous animals within one town might point to failings in those duties.
How many requests were made to council-run historic public-access buildings (e.g. museums) requesting to bring a team of ‘ghost investigators’ into the building?
Not wacky (see “exorcism” above).
How many children in the care of the council have been micro-chipped?
How wacky. Well, maybe a bit – I’m not aware of any serious suggestions that this will happen. But there are many concerned – if perhaps deluded – people who think this might already be happening. This request might be odd,but I suspect it was made with the utmost seriousness.

I’m not saying that my speculations about the reasons behind these requests are right. Maybe some of the requests were made for entirely frivolous purposes, or to waste councils’ time and money, but I’m far from convinced that is the case. And, of course, if the requests were entirely frivolous the Freedom of Information Act 2000 contains a provision which enables the authority to dismiss them forthwith. Truly frivolous requests should not cost a council more than a few minutes’ work, and, in my experience, they are rare.

Careful readers will note that I haven’t mentioned the first of the LGA’s examples:

What plans are in place to protect the town from a dragon attack?
How wacky. Yes, boringly, gloom-inducingly unfunnily “wacky”, and thoroughly demolished (while questioning the motives of the council who publicised it) by Tim Turner only a couple of months ago.

There are many serious threats to councils’ revenues, but I don’t accept that FOI is one of them. FOI costs, but it costs relatively little and it has big societal benefits, as the Justice Committee recognised in 2012 when it called it a “significant enhancement of our democracy”. Truly “wacky requests” can be deftly deflected by using the “vexatiousness exemption” of the FOI Act, but let’s not assume that all requests with apparently wacky themes have unserious motives. And – digressing somewhat – let us not forget the LGA is not subject to FOI.

7 Comments

Filed under Freedom of Information, transparency

Tagged as

August 14, 2014 · 8:55 am

ICO refuses to disclose information about “non-trivial data security incident”

In July this year the Information Commissioner’s Office (ICO) disclosed within their annual report that they had themselves experienced

one non-trivial data security incident. The incident was treated as a self-reported breach. It was investigated and treated no differently from similar incidents reported to us by others. We also conducted an internal investigation. It was concluded that the likelihood of damage or distress to any affected data subjects was low and that it did not amount to a serious breach of the Data Protection Act. A full investigation was carried out with recommendations made and adopted.
This got a fair amount of attention, (even I, who rarely have anything to say on such matters, blogged about it) in a way which hadn’t happened when the ICO had reported a similar-sounding incident two years previously. I understand that there were several freedom of information (FOI) requests made to the ICO, and, I notice, they have now published their response, in their disclosure log.
I wasn’t hugely surprised to find that they are totally refusing disclosure. In their statement to me (and others) in July they had said
We are unable to provide details of the breach at this stage, as the information involved is linked to an ongoing criminal investigation
and this remains the position. Some information is exempt because it is the personal data of staff involved, and they do not have a reasonable expectation of disclosure. But primarily they invoke the exemption at section 30 of the FOI Act, which provides in terms an exemption to disclosure if the information is held for the purposes of an investigation to establish whether someone has committed an offence, or which may lead to a decision to bring criminal proceedings. As this is a qualified exemption, the ICO has considered whether the public interest in disclosure outweighs the public interest in maintaining the exemption, and finds that it doesn’t:
It is of the utmost importance that ICO is able to carry out its statutory duty and conduct investigations into potential criminal offences confident that information will not be inappropriately disclosed
However, the ICO have indicated that when the criminal investigation is completed “the ICO will make a clear public statement about what occurred and the action taken”.
As I say, none of this is particularly surprising: when one heard in July that there was an ongoing criminal investigation it was apparent that little further information would emerge until that was complete. We will have to be patient.

Leave a comment

Filed under Freedom of Information, Information Commissioner

Tagged as ,

August 13, 2014 · 10:52 am

Green light for spam texters – for now

The ICO has effectively conceded he has no current powers to issue monetary penalties on spam texters.

In June this year the Upper Tribunal dismissed the appeal by the Information Commissioner’s Office (ICO) against the quashing of a £300,000 monetary penalty notice (the MPN) served on spam texter Christopher Niebel. The MPN had been issued pursuant to the ICO’s powers under section 55A of the Data Protection Act 1998 to serve such a notice if there has been a serious contravention of the Privacy and Electronic Communications (EC Directive) Regulations 2003 (PECR) of a kind likely to cause substantial damage or substantial distress. The Upper Tribunal held that the First-tier Tribunal had not erred in law in finding that the ICO’s relevant interpretation of “distress” was unsustainable:

the tribunal took issue with the Commissioner’s guidance as to the meaning of “distress” and, in my opinion rightly so. According to that guidance, “Distress is any injury to feelings, harm or anxiety suffered by an individual” (at paragraph [12], emphasis added). The tribunal’s conclusion was that if this “involves the proposition that it is not possible to have ‘any injury to feelings’ which falls short of ‘distress’ then, it seems to us, that the definition is at odds with common experience and with the ordinary use of English [¶60]

As the law required evidence that Niebel’s company’s sending of spam texts had been of a kind likely to cause substantial distress, and as the ICO’s evidence did not match up to this, the MPN had been rightly quashed. Implicitly, the Upper Tribunal was suggesting that further MPNs of this kind would also not be sustainable, and, explicitly, it questioned whether, if Parliament wanted to give the ICO powers to financially punish spam texters, it would require a change in the law

[a] more profitable course of action, is for the statutory test to be revisited…a statutory test that was formulated in terms of e.g. annoyance, inconvenience and/or irritation, rather than “substantial damage or substantial distress”, might well have resulted in a different outcome.

To no real surprise, since the ICO lost this appeal, no further MPNs have been issued for spam texting (some have been served for spam telephone calls). Now the ICO, in a blog post by their Head of Enforcement Steve Eckersley has effectively conceded that the result of the Niebel litigation has been to remove their powers to serve MPNs for spam texts, saying it had “largely [rendered] our power to issue fines for breaches of PECR involving spam texts redundant”. And Eckersley picks up the call for a law change, confirming that there will be a consultation later this year (whether any of this will see results this side of the general election, however, is another question).  This call echoes one made by the Information Commissioner himself, who said in February

We have just got to lower that hurdle because I think if you ask most people they would say silent calls and unsolicited spam texts are one of the great curses of the age – and if the Information Commissioner can’t protect you it’s a poor lookout.
There are, of course, other strings to the ICO bow, and Eckersley refers to some of them
we are using our existing powers to hold companies to account and to disrupt their unlawful activities….and we are obtaining undertakings from and issuing enforcement notices, effectively cease-and-desist orders, to companies that breach PECR.
This sounds good, but leaves me rather puzzled: as the ICO has confirmed to me, no enforcement notices have been served and only one undertaking obtained, against companies or individuals who have sent spam texts in breach of PECR. Enforcement notices are a strong power – breach of one is a criminal offence – and only require the ICO to consider whether the PECR contravention has caused or is likely to cause any person damage or distress, not “substantial damage or substantial distress”. This lower threshold should make it much more difficult for enforcement to be resisted. Maybe some enforcement notices are on their way? One rather hopes so, because, for the moment, it looks like spam texters have received a green light.
EDITED TO ADD:
Tim Turner points out to me that a conviction for breach of an enforcement notice is not a recordable offence it will not make its way on to the Police National Computer, and will not therefore generally result in disclosure for, e.g. employment purposes. Tim’s view, and it is a compelling one, is that for a lot of spammers the threat of a minor conviction for breach of a legal notice is not one which is likely to dissuade them from their practice.

7 Comments

Filed under Data Protection, enforcement, Information Commissioner, Information Tribunal, marketing, monetary penalty notice, nuisance calls, PECR, Upper Tribunal

Tagged as , ,