Category Archives: Data Protection

December 2, 2011 · 9:03 am

Mandatory breach reporting and the public interest

In May of this year the Privacy and Electronic Communications (EC Directive) (Amendment) Regulations 2011 amended the existing Privacy and Electronic Communications (EC Directive) Regulations 2003 (the “PECR”).

The regulations apply to different bodies in different circumstances (for instance those parts relating to cookies, which apply effectively to anyone using cookies on their website). However, a key amendment applies to specifically to providers of a public electronic communications service (broadly, telecoms companies and internet service providers): regulation 5A(2) of the PECR now says

If a personal data breach occurs, the service provider shall, without undue delay, notify that breach to the Information Commissioner.

This is the first appearance in domestic law of a mandatory requirement to inform the Information Commissioner (IC) of a data breach. “Data breach” itself  is defined as

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

While a PECR data breach is not, expressly, a breach of the Data Protection Act 1998 (DPA) I cannot imagine circumstances in which a PECR breach would not also involve a breach of the provisions of the DPA (and – specifically and primarily – the seventh data protection principle). How the IC responds to notifications made to him under regulation 5A(2) will, therefore, be of interest to all data controllers.

This is because the imminent new European data protection instrument (either a new Directive or a Regulation) is likely to introduce mandatory data breach reporting into the Data Protection laws. It is not yet clear how far the requirement would extend. In an interview on 16 November with The Washington Post the EU Justice Commissioner, Vivian Reding, said

…we will now have such rules on notification for all sectors so citizens will know when their data has been breached, whether by criminal intent, accidental or other circumstances. We already have this rule for telecom companies but not for other sectors such as e-banking services, private-sector medical records and online shopping. We will extend the telecom rules to the Internet.

So will mandatory notification apply to “all sectors” or just (in addition to telcos/ISPs) “e-banking services, private-sector medical records and online shopping”? We’ll have to wait and see.

I made a Freedom of Information Act 2000 (FOIA) request to the IC asking how many mandatory notifications had been made to this office since the amended PECR came into effect, and by whom and whether the companies involved had informed data subjects of the breach. The IC’s response is that 76 notifications have been made (they don’t say, but I presume this is to the 3 November, the date of my request) and in 64 of these cases data subjects were also informed. By way of explanation for the latter figure the IC says

…it is not a requirement of the regulations for providers to tell the ICO whether or not they have notified data subjects. The service providers only have to inform subscribers where ‘the personal data breach is likely to adversely affect the personal data or privacy of a subscriber or user’. If that is the case they have to ‘without undue delay, notify that breach to the subscriber or user concerned.’

When it comes to disclosing the names of the companies involved, however, the IC is scratching his head. He has identified (at least this is how I read his response) that disclosing this information would prejudice the commercial interests of those companies, and that, therefore, section 43 of FOIA is engaged. Having decided this, however, he has to consider (under section 2(2)(b) of FOIA) whether

in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information

Section 10(3)(b) of FOIA allows authorities to extend the time for compliance with a request (from 20 working days) where they need to consider the public interest test. FOIA itslef unhelpfully only says that it can be extended by “such time as is reasonable in the circumstances” but the IC himself advises that the maximum time that should be taken, in total, is 40 working days. His office has advised me that this applies with my request for names of companies, and it

…may take up to an additional 20 working days to take this decision.  We therefore aim to provide you with a response to this part of your request for information by 23 December 2011

This is, of course, completely acceptable, and I’ll update this post when I get the response, but three things occur to me.

First, if or when mandatory breach notification is extended to other organisations, they will need to be aware that people may request information about such breaches from the IC, and that there is a clear public interest in such information.

Second, if the IC is wrestling with the public interest factors this is clearly a finely-balanced point, and if he comes down against disclosure then this might be a case worth appealing.

Third, surely the IC anticipated that he would get such requests? I’m surprised he hadn’t already considered this public interest point.

 

 

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November 17, 2011 · 9:10 am

Tweets and Tw*ts

A few days ago I tweeted @ICONews, the twitter account of the Information Commissioner (IC)

@ICONews any chance you can disclose (waive privilege?) legal advice/analysis of Letwin case? Important re: manual data/Cat E data #DPA

The context of this was that there had been some discussions in data protection circles, following the revelations about Oliver Letwin and his dumping of correspondence in the bins of St Jame’ss Park, about whether in strict terms there would have been a breach of the Data Protection Act 1998 (DPA) (on this see similar questions raised by Stewart Room about Vince Cable’s recent incident).

The undertaking signed by Letwin didn’t make clear exactly how the IC had arrived at a decision that there had been a breach of the DPA, and I was keen to know more. So was fellow tweeter @tim2040 who asked me

@bainesy1969 Are you going to #FOI them or am I? Or did your tweet to them count?

When I sent my first tweet I hadn’t thought of it as a request made under Freedom of Information Act 2000 (FOIA). However, knowing that a public authority must treat a request for information even if the requester does not “mention the Freedom of Information Act…although it may help to do so” I realised that I had rather inadvertently made a formal request which the IC’s office had to respond to, in accordance with Part 1 of FOIA. I also know that it’s easy sometimes for a public authority to miss that a valid FOIA request has been made. So, in a spirit of helpfulness, I clarified:

@ICONews Just to confirm, this earlier tweet to you was request for information #FOI http://t.co/gUeqdwGg

I’ve now received a reply from @ICONews, which says

@bainesy1969 In line with our guidance please could you provide a postal or email address for further correspondence.

Now, I really don’t want to come across as a twit (what else did you think the asterisked word was in this post title?) but I know what their guidance says (it’s my job to know it)

The request must state the name of the applicant…A Twitter name may not be the requester’s real name, but the real name may be shown in their linked profile

as mine is

The request must also state an address ‘for correspondence’. Does this include Twitter names? The length of a tweet makes it difficult for the authority to respond fully, but there are ways of dealing with this. The authority could ask the requester for an email address in order to provide a full response. Alternatively, it could publish the requested information, or a refusal notice, on its website and tweet a link to that.

So I’ve gone back to them saying

@ICONews My name’s in my profile. In line with yr guidance cd you not publish info or refusal notice on yr site and tweet link to it?

A bit twattish twittish, I accept, and I’ll be extending an olive branch to the IC’s office by contacting them privately to give them my email address. However, it does raise interesting questions about the extent to which one has to put a request for information in “formal” terms for it to be recognised. I don’t know if the IC’s office would have recognised my original tweet as a request for information – maybe they would. But, as I say, I wasn’t thinking of FOIA when I made it – I was rather hoping that someone at the office would see it and think “Hey – it would be a good idea for us to publish a note explaining how we arrived at our findings in the Letwin case”.

I know of an incident where the press office at a Council received an enquiry from a local journalist. He and the press office were well-acquainted and on generally good terms. He asked for information about a council employee and an alleged criminal offence, and he was given an “unable to comment” response. He queried this and was told (correctly) that it was for data protection reasons. He, knowing something of the regulatory process, then complained to the IC. The problem was that the press office had followed their normal press enquiry prcoedures and consequently not issued a formal refusal notice under section 17 of FOIA. The IC, if he had been asked to issue a decision notice, could not have avoided a determination that there had been a breach of FOIA. However, I would suggest neither the local media nor the Council’s press office could effectively function if every enquiry by a time-pressed local hack was dealt with as a formal FOIA request (with a 20 working day deadline).

I’m not sure there is an easy answer to this, and perhaps there will always be a grey area  separating “general correspondence” from “FOI request”. However, public authorities who have a twitter account must be aware of the possibility (probability?) that they will receive requests for information, and that sometimes these won’t be clearly labelled as FOI requests. I would hope that, in the event that these end up as complaints to his office, the IC would show some understanding of the difficulties of applying the formal mechanisms of FOIA to circumstances which might warrant a less formal approach (as in fact he did in the press office case in the preceding paragraph) .

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November 3, 2011 · 8:11 am

MPs, Data Protection and Criminal Offences

In 2000 the then Minister for London, Keith Hill MP, was prosecuted under the Data Protection Act 1984. He was fined £200 with £500 costs for an offence which the Daily Mail (so it must be true) says was “non-notification”. (I’ve tried hard to find more about Hill’s conviction – but even a contemporaneous Evening Standard story does not mention specific offences: if anyone knows or recalls more I’ll happily amend this post. For the time being, I’m proceeding on the assumption that the Mail is correct.)

Under the successor act, our current Data Protection Act 1998 (DPA), similar obligations and a similar offence exist. Section 17 states in broad terms that a data controller (a person who solely or jointly “determines the purposes for which and the manner in which any personal data are, or are to be, processed”) must not process personal data unless “an entry in respect of the data controller is included in the register maintained by the [Information] Commissioner” (IC). Accordingly (under section 18) a data controller must make a notification to the IC stating (again in broad terms) what data it is processing and for what purposes, and must pay a fee of either £35 or £500 (depending on the size of the organisation which is the controller). Section 19 describes the register itself and also provides that registration lasts for twelve months, after which a renewed notification must be made, with payment of a further fee.

Section 21 creates an offence the elements of which will be made out if a data controller processes personal data without an entry being made in the register. Thus, if a data controller processes personal data and has not notified the IC either initially or at the point of renewal, that controller will be likely to have committed a criminal offence (there is a defence if the controller can show that he exercised all due diligence to comply with the duty).

In 2008 the Mail reported that eleven government ministers were “flounting” (whatever that might mean – one presumes the sub meant “flouting”) the DPA by not having notified, or renewed notification of, their processing to the IC. The Deputy IC said at the time

It’s a statutory requirement and no one should get away with it. We will write to those people you have identified and remind them very clearly of their obligation under the law to notify. If they haven’t notified us within a reasonable period, or given us a good enough reason why they do not need to, we will consider prosecution, punishable in court by a fine of up to £5,000.

Well, it’s still a statutory requirement, still a criminal offence not to comply with that requirement and the sentence is still a maximum fine of £5000.

Bear this in mind when you learn that , currently (as at 24 October) 46 MPs have either failed to notify or failed to renew their notification. The worst example is one MP who has not renewed his notification since 1 July 2010. This is despite the fact that the IC has a policy of gently reminding such controllers that their processing may be criminally unlawful. I say “despite”, but perhaps I should say “because”. The IC’s policy appears to be to remind controllers three times

…our non notification process is to write to them asking for their comments and advise them to consider their need to notify. If the entity registers or provides a suitable explanation…that is usually the end of the matter and no further action is taken. If no response (or an inadequate response) is forthcoming then we write again explaining the requirement to notify and advising that failure to respond may result in the matter being passed to our legal team for consideration of prosecution. If there is still no response then the file is passed over for the legal team to consider the evidence and if they think there is sufficient evidence they will write advising that if no registration is received within 14 days or representations made as to why a prosecution should not be carried out then a summons will be issued.  If registration is then forthcoming then that is the end of the matter and no further action is taken. Prosecution is usually the last resort when all else fails and we do give ample opportunity for the data controller to register. The legal team are not currently considering any MPs for prosecution.

No one realistically expects any prosecutor always to take a zero-tolerance approach, but notification is the very first step a data controller should take before processing personal data. Any processing which takes place without notification is, in strict but very clear terms, unlawful. The first thing I advise people who have a gripe about a data protection matter is to check whether the controller has made a notification. If it hasn’t you’ve won your fight with the first punch. And if nothing else, failure to notify is a strong indication that the data controller might not have the greatest respect for the personal data it is processing, and might also indicate other areas of non-compliance.

The IC is in a tricky statutory position. He is both the enforcer and, by virtue of section 51, the educator under the DPA. He can prosecute offences, but he must also  promote the following of good practice by data controllers. However, he has other options open to him which are stronger than a gentle reminder but which fall short of prosecution. He can, of course, issue a caution under criminal law, but he can also issue an enforcement notice under section 40, which is a formal notice requiring the controller to take the action specified in the notice in order to bring about compliance with the Act. But another measure he can propose is to undertake a consensual audit of the controller’s processing (and, if he had his way, he would be able to require compulsory audits for all controllers). It would be interesting to know if he has used any of these options when data controller’s have shown little regard for the need to notify.

All this is me leading up to making the point that a failure by a significant number of MPs to comply with a statutory requirement under the DPA is not a minor issue. Mr Walsh, for the IC, says

In general terms, we have found that Data Controllers usually do renew their  notification as a result of our reminders. This appears to be reflected in the relatively high proportion of MPs who are notified.

I would argue the opposite: 46 out of 650 means that 7% of the members of the parliament which passed the DPA appear to treat it in such a cavalier manner that they don’t consider it necessary to ensure that their registration is up to date, despite the fact that failure to do this can amount to a criminal offence. And the regulator responsible for ensuring compliance with the DPA, and enforcing its provisions seems quite happy to allow this to continue.

p.s. I must give credit to John Cross, who blogs at confirmordeny.org.uk for getting this information disclosed by the IC.

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September 17, 2011 · 9:10 am

Whip your information, and beat the messenger

To supplement my random firings on twitter (@bainesy1969) and the occasional guest post on other blogs and sites, I’ve started this blog.

“Information Rights” covers a number of areas, but primarily I’m interested in the Freedom of Information Act 2000, the Environmental Information Regulations 2004 and the Data Protection Act 1998.

Like a million bloggers before me, I intend to post regularly on these and related subjects. I hope that, unlike most of those million bloggers before me, I actually manage to do that.

Title of this post is Shakespeare, by the way, and nothing dodgy.

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