Category Archives: Data Protection

December 19, 2014 · 4:03 pm

Hidden data in FOI disclosures

The Hackney Gazette reports that details of 15,000 residents have been published on the internet after Hackney Council apparently inadvertently disclosed the data when responding to a Freedom of Information (FOI) request made using the WhatDoTheyKnow site.

This is not the first time that such apparently catastrophic inadvertent disclosures have happened through WhatDoTheyKnow, and, indeed, in 2012 MySociety, who run the site, issued a statement following a similar incident with Islington Council. As that made clear

responses sent via WhatDoTheyKnow are automatically published online without any human intervention – this is the key feature that makes this site both valuable and popular

It is clearly the responsibility of the authorities in question to ensure that no hidden or exempt information is included in FOI disclosures via WhatDoTheyKnow, or indeed, in FOI disclosures in general. A failure to have appropriate organisational and technical safeguards in place can lead to enforcement action by the Information Commissioner’s Office for contraventions of the Data Protection Act 1998 (DPA): Islington ended up with a monetary penalty notice of £70,000 for their incident, which involved 2000 people. Although the number of data subjects involved is not the only factor the ICO will take into account when deciding what action to take, it is certainly a relevant one: 15000 affected individuals is a hell of a lot.

What concerns me is this sort of thing keeps happening. We don’t know the details of this incident yet, but with such large numbers of data subjects involved it seems likely that it will have involved some sort of dataset, and I would not be at all surprised if it involved purportedly masked or hidden data, such as in a pivot table [EDIT – I’m given to understand that this incident involved cached data in MS Excel]. Around the time of the Islington incident the ICO’s Head of Policy Steve Wood published a blog post drawing attention to the risks. A warning also takes the form of a small piece on a generic page about request handling, which says

take care when using pivot tables to anonymise data in a spreadsheet. The spreadsheet will usually still contain the detailed source data, even if this is hidden and not immediately visible at first glance. Consider converting the spreadsheet to a plain text format (such as CSV) if necessary.

This is fine, but does it go far enough? Last year I wrote on the Guardian web site, and called for greater efforts to be made to highlight the issue. I think that what I wrote then still holds

The ICO must work with the government to offer advice direct to chief executives and those reponsible for risk at councils and NHS bodies (and perhaps other bodies, but these two sectors are probably the highest risk ones). So far these disclosure errors do not appear to have led to harm to those individuals whose private information was compromised, but, without further action, I fear it is only a matter of time.

Time will tell whether this Hackney incident results in a finding of DPA contravention, and ICO enforcement, but in the interim I wish the word would get spread around about how to avoid disclosing hidden data in spreadsheets.

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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December 15, 2014 · 2:58 pm

FOI disclosure of personal data: balancing of interests

In June this year I blogged about the case of AB v A Chief Constable (Rev 1) [2014] EWHC 1965 (QB). In that case, Mr Justice Cranston had held that, when determining whether personal data is being or has been processed “fairly” (pursuant to the first principle of Schedule One of the Data Protection Act 1998 (DPA))

assessing fairness involves a balancing of the interests of the data subject in non-disclosure against the public interest in disclosure [¶75]

I was surprised by this reading in of an interests balance to the first principle, and said so in my post. Better people than I disagreed, and I certainly am even less sure now than I was of the correctness of my view.

In any case, the binding authority of the High Court rather trumps my meanderings, and it is cited in a recent decision of the First-tier Tribunal (Information Rights) in support of a ruling that the London Borough of Merton Council must disclose, under the Freedom of Information Act 2000 (FOIA), an email sent to a cabinet member of that council by Stephen Hammond MP. The Tribunal, in overturning the decision of the Information Commissioner, considered the private interests of Mr Hammond, including the fact that he had objected to the disclosure, but felt that these did not carry much weight:

we do not consider anything in the requested information to be particularly private or personal and that [sic] this substantially weakens the weight of interest in nondisclosure…We accept that Mr Hammond has objected to the disclosure, which in itself carries some weight as representing his interests. However, asides from an expectation of a general principle of non-disclosure of MP correspondence, we have not been given any reason for this. We have been given very little from the Commissioner to substantiate why Members of Parliament would have an expectation that all their correspondence in relation to official work remain confidential

and balanced against these were the public interests in disclosure, including

no authority had been given for the statement [in the ICO’s decision notice] that MPs expect that all correspondence to remain confidential…[;]…withholding of the requested information was not compatible with the principles of accountability and openness, whereby MPs should subject themselves to public scrutiny, and only withhold information when the wider public interest requires it…[;]…the particular circumstances of this case [concerning parking arrangements in the applicant’s road] made any expectation of confidentiality unreasonable and strongly indicated that disclosure would be fair

The arguments weighed, said the Tribunal, strongly in favour of disclosure.

A further point fell to be considered, however: for processing of personal data to be fair and lawful (per the first data protection principle) there must be met, beyond any general considerations, a condition in Schedule Two DPA. The relevant one, condition 6(1) requires that

The processing is necessary for the purposes of legitimate interests pursued by the data controller or by the third party or parties to whom the data are disclosed, except where the processing is unwarranted in any particular case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject

It has to be noted that “necessary” here in the DPA imports a human rights proportionality test and it “is not synonymous with ‘indispensable’…[but] it implies the existence of a ‘pressing social need'” (The Sunday Times v United Kingdom (1979) 2 EHRR 245). The Tribunal, in what effectively was a reiteration of the arguments about general “fairness”, accepted that the condition would be met in this case, citing the applicant’s arguments, which included the fact that

disclosure is necessary to meet the public interest in making public what Mr Hammond has said to the Council on the subject of parking in Wimbledon Village, and that as an elected MP, accountable to his constituents, disclosure of such correspondence cannot constitute unwarranted prejudice to his interests.

With the exception of certain names within the requested information, the Tribunal ordered disclosure.  Assessing “fairness” now, following Mr Justice Cranston, and not following me, clearly does involve balancing the interests of the data subject against the public interest in disclosure.

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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December 9, 2014 · 7:49 am

The wrong test for anonymisation?

UPDATE: 23.01.15 The ICO has responded [.doc file] to my request for a review of their decision. I drew their attention to the arguments on this page but they don’t even mention them, let alone provide a counter-analysis, in dismissing my complaints (“Having reviewed the matter, I agree with the explanations provided”). I am invited by the ICO to consider taking my own legal action. I understand that the ICO and I might have differing views on a DPA matter, but what I find difficult to accept is the refusal even to enter into a discussion with me about the detailed arguments I’ve made. END UPDATE

In February this year I asked the Information Commissioner’s Office (ICO) to investigate reports that Hospital Episode Statistics (HES) data had apparently been sold to an actuarial society by the NHS Information Centre (NHSIC), the predecessor to the Health and Social Care Information Centre (HSCIC). Specifically I requested, as a data subject can under s42 of the Data Protection Act 1998 (DPA), that the ICO assess whether it was likely or not that the processing of my personal data by NHSIC and others had been in compliance with the DPA.

Nine months later, I was still awaiting the outcome. But a clue to how the assessment would turn out was contained in the text of Sir Nick Partridge’s six month review of various data releases by NHSIC (his original report in June seemed to me to point to multiple potential DPA contraventions). In the review document he says

Six investigations have been separately instigated by the HSCIC or Information Commissioner’s Office (ICO)and shared with both parties as these focussed on whether individuals were at risk of being identified. In the cases it has investigated, the ICO has upheld the HSCIC approach and informed us that it has “seen no evidence to suggest that re-identification has occurred or is reasonably likely to occur.”
And sure enough, after chasing the ICO for the outcome of my nine-month wait, I received this (in oddly formatted text, which rather whiffed of a lot of cutting-and-pasting)
Following the recent issue regarding HSCIC, PA Consulting, and Google we investigated the issue of whether HES data could be considered personal data. This detailed work involved contacting HSCIC, PA Consulting, and Google and included the analysis of the processes for the extraction and disclosure of HES data both generally and in that case in particular. We concluded that we did not consider that the HES dataset constitutes personal data.Furthermore we also investigated whether this information had been linked to other data to produce “personal data” which was subject to the provisions of the Act. We have no evidence that there has been any re-identification either on the part of PA Consulting or Google. We also noted that HSCIC have stated that the HES dataset does not include individual level patient data even at a pseudonymised level. Our view is that the data extracted and provided to PA Consulting did not identify any individuals and there was no reasonable likelihood that re-identification would be possible.
I have added the emphasis to the words “reasonable likelihood” above. They appear in similar terms in the Partridge Review, and they struck me as rather odd. An awful lot of analysis has taken and continues to take place on the subject of when can personal data be “rendered fully anonymous in the sense that it is information from which the data subject is no longer identifiable” (Lord Hope’s dicta in Common Services Agency v Scottish Information Commissioner [2008] UKHL 47). Some of that analysis has been academic, some takes the form of “soft law” guidance, for instance Opinion 05/2014 of the Article 29 Working Party, and the ICO Anonymisation Code of Practice. The former draws on the Data Protection Directive 95/46/EC, and notes that

Recital 26 signifies that to anonymise any data, the data must be stripped of sufficient elements such that the data subject can no longer be identified. More precisely, that data must be processed in such a way that it can no longer be used to identify a natural person by using “all the means likely reasonably to be used”

Anonymisation has also been subject to judicial analysis, notably in the Common Services Agency case, but, even more key, in the judgment of Mr Justice Cranston in Department of Health v Information Commissioner ([2011] EWHC 1430). The latter case, involving the question of disclosure of late-term abortion statistics, is by no means an easy judgment to parse (ironically so, given that it makes roughly the same observation of the Common Services Agency case). The judge held that the First-tier Tribunal had been wrong to say that the statistics in question were personal data, but that it had on the evidence been entitled to say that “the possibility of identification by a third party from these statistics was extremely remote”. The fact that the possibility of identification by a third party was extremely remote meant that “the requested statistics were fully anonymised” (¶55). I draw from this that for personal data to be anonymised in statistical format the possibility of identification of individuals by a third party must be extremely remote. The ICO’s Anonymisation Code, however, says of the case:

The High Court in the Department of Health case above stated that the risk of identification must be greater than remote and reasonably likely for information to be classed as personal data under the DPA [emphasis added]

But this seems to me to be an impermissible description of the case – the High Court did not state what the ICO says it stated – the phrases “greater than remote” and “reasonably likely” do not appear in the judgment. And that phrase “reasonably likely” is one that, as I say, makes it way into the Partridge Review, and the ICO’s assessment of the lawfulness of HES data “sale”.

I being to wonder if the ICO has taken the phrase from recital 26 of the Directive, which talks about the need to consider “all the means likely reasonably to be used” to identify an individual, and transformed it into a position from which, if identification is not reasonably likely, it will accept that data are anonymised. This cannot be right: there is a world of difference between a test which considers whether possibility of identification is “extremely remote” and whether it is “reasonably likely”.

I do not have a specific right to a review of the section 42 assessment decision that the processing of my personal data was likely in compliance with NHSIC’s obligations under the DPA, but I have asked for one. I am aware of course that others complained (après moi, la deluge) notably, in March, FIPR, MedConfidential and Big Brother Watch . I suspect they will also be pursuing this.

In October this year I attended an event at which the ICO’s Iain Bourne spoke. Iain was a key figure in the drawing up of the ICO’s Anonymisation Code, and I took the rather cheeky opportunity to ask about the HES investigations. He said that his initial view was that NHSIC had been performing good anonymisation practice. This reassured me at the time, but now, after considering this question of whether the Anonymisation Code (and the ICO) adopts the wrong test on the risks of identification, I am less reassured. Maybe “reasonably likely that an individual can be identified” is an appropriate test for determining when data is no longer anonymised, and becomes personal data, but it does not seem to me that the authorities support it.

Postscript Back in August of this year I alerted the ICO to the fact that a local authority had published open data sets which enabled individuals to be identified (for instance, social care and housing clients). More than four months later the data is still up (despite the ICO saying they would raise the issue with the council): is this perhaps because the council has argued that the risk of identification is not “reasonably likely”?

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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December 8, 2014 · 3:08 pm

Russell Brand and the domestic purposes exemption in the Data Protection Act

Was a now-deleted tweet by Russell Brand, revealing a journalist’s private number, caught by data protection law?

Data protection law applies to anyone who “processes” (which includes “disclosure…by transmission”) “personal data” (data relating to an identifiable living individual) as a “data controller” (the person who determines the purposes for which and the manner in which the processing occurs). Rather dramatically, in strict terms, this means that most individuals actually and regularly process personal data as data controllers. And nearly everyone would be caught by the obligations under the Data Protection Act 1998 (DPA), were it not for the exemption at section 36. This provides that

Personal data processed by an individual only for the purposes of that individual’s personal, family or household affairs (including recreational purposes) are exempt from the data protection principles and the provisions of Parts II and III

Data protection nerds will spot that exemption from the data protection principles and Parts II and III of the DPA is effectively an exemption from whole Act. So in general terms individuals who restrict their processing of personal data to domestic purposes are outwith the DPA’s ambit.

The extent of this exemption in terms of publication of information on the internet is subject to some disagreement. On one side is the Information Commissioner’s Office (ICO) who say in their guidance that it applies when an individual uses an online forum purely for domestic purposes, and on the other side are the Court of Justice of the European Union (and me) who said in the 2003 Lindqvist case that

The act of referring, on an internet page, to various persons and identifying them by name or by other means, for instance by giving their telephone number…constitutes ‘the processing of personal data…[and] is not covered by any of the exceptionsin Article 3(2) of Directive 95/46 [section 36 of the DPA transposes Article 3(2) into domestic law]

Nonetheless, it is clear that publishing personal data on the internet for reasons not purely domestic constitutes an act of processing to which the DPA applies (let us assume that the act of publishing was a deliberate one, determined by the publisher). So when the comedian Russell Brand today decided to tweet a picture of a journalist’s business card, with an arrow pointing towards the journalist’s mobile phone number (which was not, for what it’s worth, already in the public domain – I checked with a Google search) he was processing that journalist’s personal data (note that data relating to an individual’s business life is still their personal data). Can he avail himself of the DPA domestic purposes exemption? No, says the CJEU, of course, following Lindqvist. But no, also, would surely say the ICO: this act by Brand was not purely domestic. Brand has 8.7 million twitter followers – I have no doubt that some will have taken the tweet as an invitation to call the journalist. It is quite possible that some of those calls will be offensive, or abusive, or even threatening.

Whilst I have been drafting this blog post Brand has deleted the tweet: that is to his credit. But of course, when you have so many millions of followers, the damage is already done – the picture is saved to hard drives, is mirrored by other sites, is emailed around. And, I am sure, the journalist will have to change his number, and maybe not much harm will have been caused, but the tweet was nasty, and unfair (although I have no doubt Brand was provoked in some way). If it was unfair (and lacking a legal basis for the publication) it was in contravention of the first data protection principle which requires that personal data be processed fairly and lawfully and with an appropriate legitimating condition. And because – as I submit –  Brand cannot plead the domestic purposes exemption, it was in contravention of the DPA. However, whether the journalist will take any private action, and whether the ICO will take any enforcement action, I doubt.

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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December 7, 2014 · 11:32 am

Naming and shaming the innocent

Around this time last year I wrote two blog posts about two separate police forces’ decision to tweet the names of drivers charged (but not – yet, at least – convicted) of drink driving offences. In the latter example Staffordshire police were actually using a hashtag #drinkdriversnamedontwitter, and I argued that

If someone has merely been charged with an offence, it is contrary to the ancient and fundamental presumption of innocence to shame them for that fact. Indeed, I struggle to understand how it doesn’t constitute contempt of court to do so, or to suggest that someone who has not been convicted of drink-driving is a drink driver. Being charged with an offence does not inevitably lead to conviction. I haven’t been able to find statistics relating to drink-driving acquittals, but in 2010 16% of all defendants dealt with by magistrates’ courts were either acquitted or not proceeded against

The Information Commissioner’s Office investigated whether there had been a breach of the first principle of Schedule One of the Data Protection Act 1998 (DPA), which requires that processing of personal data be “fair and lawful”, but decided to take no action after Staffs police agreed not to use the hashtag again, saying

Our concern was that naming people who have only been charged alongside the label ‘drink-driver’ strongly implies a presumption of guilt for the offence. We have received reassurances from Staffordshire Police the hashtag will no longer be used in this way and are happy with the procedures they have in place. As a result, we will be taking no further action.

But my first blog post had raised questions about whether the mere naming of those charged was in accordance with the same DPA principle. Newspaper articles talked of naming and “shaming”, but where is the shame in being charged with an offence? I wondered why Sussex police didn’t correct those newspapers who attributed the phrase to them.

And this year, Sussex police, as well as neighbouring Surrey, and Somerset and Avon are doing the same thing: naming drivers charged with drink driving offences on twitter or elsewhere online. The media happily describe this as a “naming and shaming” tactic, and I have not seen the police disabusing them, although Sussex police did at least enter into a dialogue with me and others on twitter, in which they assured us that their actions were in pursuit of open justice, and that they were not intending to shame people. However, this doesn’t appear to tally with the understanding of the Sussex Police and Crime Commissioner who said earlier this year

I am keen to find out if the naming and shaming tactic that Sussex Police has adopted is actually working

But I also continue to question whether the practice is in accordance with police forces’ obligations under the DPA. Information relating to the commission or alleged commission by a person of an offence is that person’s sensitive personal data, and for processing to be fair and lawful a condition in both of Schedule Two and, particularly, Schedule Three must be met. And I struggle to see which Schedule Three condition applies – the closest is probably

The processing is necessary…for the administration of justice
But “necessary”, in the DPA, imports a proportionality test of the kind required by human rights jurisprudence. The High Court, in the MPs’ expenses case cited the European Court of Human Rights, in The Sunday Times v United Kingdom (1979) 2 EHRR 245  to the effect that

while the adjective “necessary”, within the meaning of article 10(2) [of the European Convention on Human Rights] is not synonymous with “indispensable”, neither has it the flexibility of such expressions as “admissible”, “ordinary”, “useful”, “reasonable” or “desirable” and that it implies the existence of a “pressing social need.”
and went on to hold, therefore that “necessary” in the DPA

should reflect the meaning attributed to it by the European Court of Human Rights when justifying an interference with a recognised right, namely that there should be a pressing social need and that the interference was both proportionate as to means and fairly balanced as to ends
So is there a pressing social need to interfere with the rights of people charged with (and not convicted of) an offence, in circumstances where the media and others portray the charge as a source of shame? Is it proportionate and fairly balanced to do so? One consideration might be whether the same police forces name all people charged with an offence. If the intent is to promote open justice, then it is difficult to see why one charging decision should merit online naming, and others not.But is the intent really to promote open justice? Or is it to dissuade others from drink-driving? Supt Richard Corrigan of Avon and Somerset police says

This is another tool in our campaign to stop people driving while under the influence of drink or drugs. If just one person is persuaded not to take to the road as a result, then it is worthwhile as far as we are concerned.

and Sussex police’s Chief Inspector Natalie Moloney says

I hope identifying all those who are to appear in court because of drink or drug driving will act as a deterrent and make Sussex safer for all road users

which firstly fails to use the word “alleged” before “drink or drug driving”, and secondly – as Supt Corrigan – suggests the purpose of naming is not to promote open justice, but rather to deter drink drivers.

Deterring drink driving is certainly a worthy public aim (and I stress that I have no sympathy whatsoever with those convicted of such offences) but should the sensitive personal data of who have not been convicted of any offence be used to their detriment in pursuance of that aim?

I worry that unless such naming practices are scrutinised, and challenged when they are unlawful and unfair, the practice will spread, and social “shame” will be encouraged to be visited on the innocent. I hope the Information Commissioner investigates.

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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December 6, 2014 · 7:47 am

ICO confirm they are considering enforcement action over #samaritansradar app

FOI response from ICO refuses disclosure of correspondence with Samaritans because it could prejudice ongoing investigations

On 12 November I asked the Information Commissioner’s Office to disclose to me, under the Freedom of Information Act (FOIA) information relating to their assessment of the legality of the “Samaritans Radar” app (see blog posts passim).

The ICO have now responded to me, refusing to disclose because of the FOIA exemption for “law enforcement”. As the ICO say

The exemption at section 31(1)(g) of the FOIA refers to circumstances
where the disclosure of information “would, or would be likely to,
prejudice – … the exercise by any public authority of its functions for
any of the purposes specified in subsection (2).”

The purposes referred to in sections 31(2)(a) and (c) are –

“(a) the purpose of ascertaining whether any person has failed to comply
with the law” and

“(c) the purpose of ascertaining whether circumstances which would
justify regulatory action in pursuance of any enactment exist or may arise
…”

Clearly, these purposes apply when the Information Commissioner is
considering whether or not an organisation has breached the Data Protection Act

But the exemption is subject to a public interest test, and the ICO acknowledge that there is public interest in the matter, particularly in how Samaritans have responded to their enquiries. Nonetheless, as the investigation is ongoing, and as no decision has apparently been made about whether enforcement action should be taken, the balance in the public interest test falls on the side of non-disclosure.

The question of potential enforcement action is an interesting one. Although the ICO have power to serve monetary penalty notices (to a maximum of £500,000) they can also issue enforcement notices, requiring organisations (who are data controllers, as I maintain Samaritans were for the app) to cease or not begin processing personal data for specific purposes. They also can ask data controllers to sign undertakings to take or not take specific action. This is of interest because Samaritans have indicated that they might want to launch a reworked version of the app.

It is by no means certain that enforcement action will result – the ICO are likely to be reluctant to enforce against a generally admirable charity – but the fact that it is being considered is in itself of interest.

The ICO acknowledge that the public interest in maintaining this particular exemption wanes once the specific investigation has been completed. Consequently I have asked them, outwith FOIA, to commit to disclosing this information proactively once the investigation has finished. They have no obligation to do so, but it would be to the benefit of public transparency, which their office promotes, if they did.

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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November 21, 2014 · 7:14 am

Watching the detective

The ICO might be mostly powerless to take action against the operators of the Russian web site streaming unsecured web cams, but the non-domestic users of the web cams could be vulnerable to enforcement action

The Information Commissioner’s Office (ICO) warned yesterday of the dangers of failing to secure web cams which are connected to the internet. This was on the back of stories about a Russian-based web site which aggregates feeds from thousands of compromised cameras worldwide.

This site was drawn to my attention a few weeks ago, and, although I tweeted obliquely about it, I thought it best not to identify it because of the harm it could potentially cause. However, although most news outlets didn’t identify the site, the cat is now, as they say, out of the bag. No doubt this is why the ICO chose to issue sensible guidance on network security in its blog post.

I also noticed that the Information Commissioner himself, Christopher Graham, rightly pointed to the difficulties in shutting down the site, and the fact that it is users’ responsibility to secure their web cams:

It is not within my jurisdiction, it is not within the European Union, it is Russia.

I will do what I can but don’t wait for me to have sorted this out.

This is, of course, true, and domestic users of web cams would do well to note the advice. Moreover, this is just the latest of these aggregator sites to appear. But news reports suggested that some of the 500-odd (or was it 2000-odd?) feeds on the site from the UK were from cameras of businesses or other non-domestic users (I saw a screenshot, for instance, of a feed from a pizza takeaway). Those users, if their web cams are capturing images of identifiable individuals, are processing personal data in the role of a data controller. And they can’t claim the exemption in the Data Protection Act 1998 (DPA) that applies to processing for purely domestic purposes. They must, therefore comply with the seventh data protection principle, which requires them to take appropriate measures to safeguard against unauthorised and unlawful processing of personal data. Allowing one’s web can to be compromised and its feed streamed on a Russian website is a pretty good indication that one is not complying with the seventh principle. Serious contraventions of the obligation to comply with the data protection principles can, of course, lead to ICO enforcement action, such as monetary penalty notices, to a maximum of £500,000.

The ICO is not, therefore, completely powerless here. Arguably it should be (maybe it is?) looking at the feeds on the site to determine which are from non-domestic premises, and looking to take appropriate enforcement action against them. So to that extent, one is rather watching Mr Graham, to see if he can sort this out.

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November 20, 2014 · 2:06 pm

The voluntary data controller

One last post on #samaritansradar. I hope.

I am given to understand that Samaritans, having pulled their benighted app, have begun responding to the various legal notices people served on them under the Data Protection Act 1998 (specifically, these were notices under section 7 (subject access) section 10 (right to prevent processing likely to cause damage or distress) and section 12 (rights in relation to automated processing)). I tweeted my section 12 notice, but I doubt I’ll get a response to that, because they’ve never engaged with me once on twitter or elsewhere.

However, I have been shown a response to a section 7 request (which I have permission to blog about) and it continues to raise questions about Samaritans’ handling of this matter (and indeed, their legal advice – which hasn’t been disclosed, or even  really hinted at). The response, in relevant part, says

We are writing to acknowledge the subject access request that you sent to Samaritans via DM on 6 November 2014.  Samaritans has taken advice on this matter and believe that we are not a data controller of information passing through the Samaritans Radar app. However, in response to concerns that have been raised, we have agreed to voluntarily take on the obligations of a data controller in an attempt to facilitate requests made as far as we can. To this end, whilst a Subject Access Request made under the Data Protection Act can attract a £10 fee, we do not intend to charge any amount to provide information on this occasion.

So, Samaritans continue to deny being data controller for #samaritansradar, although they continue also merely to give assertions, not any legal analysis. But, notwithstanding their belief that they are not controller they are taking on the obligations of a data controller.

I think they need to be careful. A person who knowingly discloses personal data without the consent of the data controller potentially commits a criminal offence under section 55 DPA. One can’t just step in, grab personal data and start processing it, without acting in breach of the law. Unless one is a data controller.

And, in seriousness, this purported adoption of the role of “voluntary data controller” just bolsters the view that Samaritans have been data controllers from the start, for reasons laid out repeatedly on this blog and others. They may have acted as joint data controller with users of the app, but I simply cannot understand how they can claim not to have been determining the purposes for which and the manner in which personal data were processed. And if they were, they were a data controller.

 

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November 17, 2014 · 4:59 pm

Do your research. Properly

Campaigning group Big Brother Watch have released a report entitled “NHS Data Breaches”. It purports to show the extent of such “breaches” within the NHS. However it fails properly to define its terms, and uses very questionable methodology. I think, most worryingly, this sort of flawed research could lead to a reluctance on the part of public sector data controllers to monitor and record data security incidents.

As I checked my news alerts over a mug of contemplative coffee last Friday morning, the first thing I noticed was an odd story from a Bedfordshire news outlet:

Bedford Hospital gets clean bill of health in new data protection breach report, unlike neighbouring counties…From 2011 to 2014 the hospital did not breach the data protection act once, unlike neighbours Northampton where the mental health facility recorded 346 breaches, and Cambridge University Hospitals which registered 535 (the third worst in the country).

Elsewhere I saw that one NHS Trust had apparently breached data protection law 869 times in the same period, but many others, like Bedford Hospital had not done so once. What was going on – are some NHS Trusts so much worse in terms of legal compliance than others? Are some staffed by people unaware and unconcerned about patient confidentiality? No. What was going on was that campaigning group Big Brother Watch had released a report with flawed methodology, a misrepresentation of the law and flawed conclusions, which I fear could actually lead to poorer data protection compliance in the future.

I have written before about the need for clear terminology when discussing data protection compliance, and of the confusion which can be caused by sloppiness. The data protection world is very found of the word “breach”, or “data breach”, and it can be a useful term to describe a data security incident involving compromise or potential compromise of personal data, but the confusion arises because it can also be used to describe, or assumed to apply to, a breach of the law, a breach of the Data Protection Act 1998 (DPA). But a data security incident is not necessarily a breach of a legal obligation in the DPA: the seventh data protection principle in Schedule One requires that

Appropriate technical and organisational measures shall be taken [by a data controller] against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data

And section 4(4) of the DPA obliges a data controller to comply with the Schedule One data protection principles. This means that when appropriate technical and organisational measures are taken but unauthorised or unlawful processing, or accidental loss or destruction of, or damage to, personal data nonetheless occurs, the data controller is not in breach of its obligations (at least under the seventh principle). This distinction between a data security incident, and a breach, or contravention, of legal obligations, is one that the Information Commissioner’s Office (ICO) itself has sometimes failed to appreciate (as the First-tier Tribunal found in the Scottish Borders Council case EA/2012/0212). Confusion only increases when one takes into account that under The Privacy and Electronic Communications (EC Directive) Regulations 2003 (PECR) which are closely related to the DPA, and which deal with data security in – broadly – the telecoms arena, there is an actual legislative provision (regulation 2, as amended) which talks in terms of a “personal data breach”, which is

a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, personal data transmitted, stored or otherwise processed in connection with the provision of a public electronic communications service

and regulation 5A obliges a relevant data controller to inform the ICO when there has been a “personal data breach”. It is important to note, however, that a “personal data breach” under PECR will not be a breach, or contravention, of the seventh DPA data protection principle, provided the data controller took appropriate technical and organisational to safeguard the data.

Things get even more complex when one bears in mind that the draft European General Data Protection Regulation proposes a similar approach as PECR, and defines a “personal data breach” in similar terms as above (simply removing the words “in connection with the provision of a public electronic communications service“).

Notwithstanding this, the Big Brother Watch report is entitled “NHS Data Breaches”, so one would hope that it would have been clear about its own terms. It has led to a lot of coverage, with media outlets picking up on headline-grabbing claims of “7225 breaches” in the NHS between 2011 and 2014, which is the equivalent to “6 breaches a day”. But when one looks at the methodology used, serious questions are raised about the research. It used Freedom of Information requests to all NHS Trusts and Bodies, and the actual request was in the following terms

1. The number of a) medical personnel and b) non-medical personnel that have been convicted for breaches of the Data Protection Act.

2. The number of a) medical personnel and b) non-medical personnel that have had their employment terminated for breaches of the Data Protection Act.

3. The number of a) medical personnel and b) non-medical personnel that have been disciplined internally but have not been prosecuted for breaches of the Data Protection Act.

4. The number of a) medical personnel and b) non-medical personnel that have resigned during disciplinary procedures.

5. The number of instances where a breach has not led to any disciplinary action.

The first thing to note is that, in broad terms, the only way that an individual NHS employee can “breach the Data Protection Act” is by committing a criminal offence under section 55 of unlawfully obtaining personal data without the consent of the (employer) data controller. All the other relevant legal obligations under the DPA are ones attaching to the NHS body itself, as data controller. Thus, by section 4(4) the NHS body has an obligation to comply with the data protection principles in Schedule One of the DPA, not individual employees. And so, except in the most serious of cases, where an employee acts without the consent of the employer to unlawfully obtain personal data, individual employees, whether medical or non-medical personnel, cannot as a matter of law “breach the Data Protection Act”.

One might argue that it is easy to infer that what Big Brother Watch meant to ask for was information about the number of times when actions of individual employees meant that their employer NHS body had breached its obligations under the DPA, and, yes, that it probably what was meant, but the incorrect terms and lack of clarity vitiated the purported research from the start. This is because NHS bodies have to comply with the NHS/Department of Health Information Governance Toolkit. This toolkit actually requires NHS bodies to record serious data security incidents even where those incidents did not, in fact, constitute a breach of the body’s obligations under the DPA (i.e. incidents might be recorded which were “near misses” or which did not constitute a failure of the obligation to comply with the seventh, data security, principle).

The results Big Brother Watch got in response to their ambiguous and inaccurately termed FOI request show that some NHS bodies clearly interpreted it expansively, to encompass all data security incidents, while others – those with zero returns in any of the fields, for instance – clearly interpreted it restrictively. In fact, in at least one case an NHS Trust highlighted that its return included “near misses”, but these were still categorised by Big Brother Watch as “breaches”.

And this is not unimportant: data security and data protection are of immense importance in the NHS, which has to handle huge amounts of highly sensitive personal data, often under challenging circumstances. Awful contraventions of the DPA do occur, but so too do individual and unavoidable instances of human error. The best data controllers will record and act on the latter, even though they don’t give rise to liability under the DPA, and they should be applauded for doing so. Naming and shaming NHS bodies on the basis of such flawed research methodology might well achieve Big Brother Watch’s aim of publicising its call for greater sanctions for criminal offences, but I worry that it might lead to some data controllers being wary of recording incidents, for fear that they will be disclosed and misinterpreted in the pursuit of questionable research.

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November 8, 2014 · 10:18 am

So farewell then #samaritansradar…

…or should that be au revoir?

With an interestingly timed announcement (18:00 on a Friday evening) Samaritans conceded that they were pulling their much-heralded-then-much–criticised app “Samaritans Radar”, and, as if some of us didn’t feel conflicted enough criticising such a normally laudable charity, their Director of Policy Joe Ferns managed to get a dig in, hidden in what was purportedly an apology:

We are very aware that the range of information and opinion, which is circulating about Samaritans Radar, has created concern and worry for some people and would like to apologise to anyone who has inadvertently been caused any distress

So, you see, it wasn’t the app, and the creepy feeling of having all one’s tweets closely monitored for potentially suicidal expressions, which caused concern and worry and distress – it was all those nasty people expressing a range of information and opinion. Maybe if we’d all kept quiet the app could have continued on its unlawful and unethical merry way.

However, although the app has been pulled, it doesn’t appear to have gone away

We will…be testing a number of potential changes and adaptations to the app to make it as safe and effective as possible for both subscribers and their followers

There is a survey at the foot of this page which seeks feedback and comment. I’ve completed it, and would urge others to do so. I’ve also given my name and contact details, because one of my main criticisms of the launch of the app was that there was no evidence that Samaritans had taken advice from anyone on its data protection implications – and I’m happy to do so for no fee. As Paul Bernal says, “[Samaritans] need to talk to the very people who brought down the app: the campaigners, the Twitter activists and so on”.

Data protection law’s place in our digital lives is of profound importance, and of profound interest to me. Let’s not forget that its genesis in the 1960s and 1970s was in the concerns raised by the extraordinary advances that computing brought to data analysis. For me some of the most irritating counter-criticism during the recent online debates about Samaritans Radar was from people who equated what the app did to mere searching of tweets, or searching for keywords. As I said before, the sting of this app lay in the overall picture – it was developed, launched and promoted by Samaritans – and in the overall processing of data which went on – it monitored tweets, identified potentially worrying ones and pushed this information to a third party, all without the knowledge of the data subject.

But also irritating were comments from people who told us that other organisations do similar analytics, for commercial reasons, so why, the implication went, shouldn’t Samaritans do it for virtuous ones? It is no secret that an enormous amount of analysis takes place of information on social media, and people should certainly be aware of this (see Adrian Short’s excellent piece here for some explanation), but the fact that it can and does take place a) doesn’t mean that it is necessarily lawful, nor that the law is impotent within the digital arena, and b) doesn’t mean that it is necessarily ethical. And for both those reasons Samaritans Radar was an ill-judged experiment that should never have taken place as it did. If any replacement is to be both ethical and lawful a lot of work, and a lot of listening, needs to be done.

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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