August 15, 2013 · 9:19 am

Data Protection Act: little-known, well-known

According to Lord Justice Leveson

The UK data protection regime suffers from an unenviable reputation, perhaps not wholly merited, but nevertheless important to understand at the outset. To say that it is little known or understood by the public, regarded as a regulatory inconvenience in the business world, and viewed as marginal and technical among legal practitioners (including by our higher courts), might be regarded as a little unfair by the more well-informed, but is perhaps not so far from the truth. [page 999, of report of An inquiry into the culture, practices and ethics of the press]
But I’m not sure (thank to Gary Slapper for pointing this out)
dpa
And in fairness to Brian, he does go on to say
And yet the subject-matter of the data protection regime, how personal information about individuals is acquired, used and traded for business purposes, could hardly be more fundamental to issues of personal integrity, particularly in a world of ever-accelerating information technology capability [ibid]
Perhaps this is why data protection and its practical application appeal so much to some odd people, and why it is our littlest-known-most-requested piece of legislation.

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August 14, 2013 · 4:28 pm

Take the train(ing)

IG policies are essential, but not much use if you don’t comply with them

In NHS and Social Care settings a standard requirement is that all staff are trained in information governance (a large component of which is data protection): “Information Governance awareness and mandatory training procedures are in place and all staff are appropriately trained” (IG Toolkit v11) and “Ensure all staff are trained, updated and aware of their responsibilities” (Local Government Data Handling Guidelines). If an organisation suffers a serious breach of data security, and the Information Commissioner’s Office (ICO) investigates, one of the first things they will look at is whether staff were appropriately trained. If they weren’t, enforcement action, possibly in the form of a monetary penalty notice, is highly likely.

It is vital, therefore, that all organisations have a policy that all relevant staff are trained (and in some organisations – like the NHS and local authorities – that will normally mean all staff).

But, policies only work if they are implemented, enforced and monitored. The ICO has recently published an Undertaking (the “last chance saloon” before formal enforcement action) signed by the Northern Health and Social Care Trust. This arose following an incident which

involved confidential service user information being faxed from a ward in Antrim Hospital to a local business in error. The information was intended for the Trust’s Community Rehabilitation Team. The referral form contained sensitive clinical data

Although the Trust had a “fax policy” (good) it wasn’t complied with (bad) but also 

The Commissioner’s investigation into the Trust revealed that despite the Trust having introduced what should have been mandatory Information Governance training for all staff, the majority of staff involved in these incidents had not received this training. This highlighted a potentially serious failing in respect of staff awareness of Information Governance policies. In particular, the failure to monitor and enforce staff completion of training was a concern.

This failure constituted a breach of the seventh data protection principle (“Appropriate technical and organisational measures shall be taken against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data”). It is highly likely that, if training requirements had been complied with, no action would have been (or would have been able to be) taken, because there would have been no breach.

Put simply, if a data controller can show it has complied with the seventh data protection principle, and there is an accidental data security breach – however horrendous – then (providing there are no breaches of other principles) no sanctions will arise.

It’s in every data controller’s interests not only to require appropriate data protection training for staff, but also to ensure that it has been taken.

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August 14, 2013 · 8:00 am

Poor judgement?

Public authorities need to be cautious when disclosing performance figures of their staff under Freedom of Information (FOI) laws. They need to be even more cautious when disclosing performance figures of third parties.

Imagine if your employer, or, worse, a third party, disclosed under FOI that, of all your peers, you made the most decisions in the exercise of your employment which were subsequently found to be wrong, and which had to be overturned. If in fact those figures turned out to be incorrect, you would probably rightly feel aggrieved, and perhaps question whether the failure of data quality was in fact a breach of your rights under the Data Protection Act 1998 (DPA) and of your employment rights.

That is what appears to have happened to certain judges in Scotland, according to a letter in The Scotsman today, from the Chief Executive of the Scottish Court Service. The letter points out that a previous (29 July) article in The Scotsman – “Meet the judge with the highest number of quashed convictions” (now no longer available, for obvious reasons) – was, although published in good faith, based on inaccurate information disclosed to the paper under FOI. The letter contains an apology to

Lord Carloway and Lord Hardie, who featured prominently in 
this article, for misrepresenting their position in relation to 
appeal decisions

because the erroneous disclosed statistics suggested they had had more judgments overturned on appeal than was actually the case.

Of course, the principle of judicial independence means that judges are, strictly, not employed. But as Carswell LCJ said

All judges, at whatever level, share certain common characteristics. They all must enjoy independence of decision without direction from any source, which the respondents quite rightly defended as an essential part of their work. They all need some organisation of their sittings, whether it be prescribed by the president of the industrial tribunals or the Court Service, or more loosely arranged in collegiate fashion between the judges of a particular court. They are all expected to work during defined times and periods, whether they be rigidly laid down or managed by the judges themselves with a greater degree of flexibility. They are not free agents to work as and when they choose, as are self-employed persons. Their office accordingly partakes of some of the characteristics of employment . .. [Perceval-Price v Department of Economic Development [2000] IRLR 380]

and the Supreme Court took this further in O’Brien v Ministry of Justice [2010] UKSC 34 by saying “Indeed judicial office partakes of most of the characteristics of employment” (emphasis added).

Whatever their employment status, judges’ performance figures are clearly an important matter to them, and the Scottish Court Service has a duty to maintain accurate figures (particularly when disclosing them publicly). As Wodehouse said, “it has never been difficult to distinguish between a Scotsman with a grievance and a ray of sunshine”. I imagine that the office of Mr McQueen, the day after the first article, was not filled with sunshine.

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August 8, 2013 · 6:00 pm

Small Council, Big Burden

“Parish Councils are the smallest unit in our system of elected government…In rural areas their jurisdiction typically extends to a single village or perhaps two or three, depending on size…Their budget generally runs to a few thousand pounds a year…They generally employ one part – time clerk to perform secretarial and administrative tasks… Their income derives from their precept – usually a small fraction of the Council tax. Most Parish Councils probably have little experience of FOIA requests for information.”  (EA/2013/0022)

When judgment was handed down earlier this year in the key case on vexatious requests under the Freedom of Information Act 2000 (FOIA), Wikely J said

It may be helpful to consider the question of whether a request is truly vexatious by considering 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).

The first of these comes into important focus in a recent decision by the First-tier Tribunal (Information Rights) (FTT). In Harvey v ICO and Walberswick Parish Council (EA/2013/0022) the Council had received nearly five hundred FOIA requests (from various requesters) in a two-year period  (by way of contrast, county councils (which are hugely better-resourced) will perhaps have received about 2000-3000 over a similar period). It is not clear how many of these were made by the applicant, but the judgment says she was one of four residents who made the majority of them (which appear to stemmed from planning issues). At some point the Council had ill-advisedly purported to exclude requesters from making further requests. This in itself had only generated more requests. At one point all the parish councillors resigned as a result of the stress, tension and acrimony.

The request here was of a type often called a “meta-request” (a request about a previous request). It was for information about fifty previous requests refused on the grounds of cost. This meta-request was also refused, on the basis that, per section 14(1) of FOIA, it was vexatious. The FTT noted the dicta of Wikely J to the effect that

The purpose of section 14 must be to protect the resources (in the broadest sense of that word) of the public authority from being squandered on disproportionate use of FOIA.

and applied this to the fact that the public authority in this case was a small parish council

Parish councils are not equipped to handle a torrent of FOIA requests and, we suppose, very rarely do so. If WPC was failing to handle such matters efficiently, to bombard it with an unending further stream of requests and demands seems an odd way of helping it to improve its service […] the grossly excessive burden placed upon the resources of WPC by the flood of requests, of which this was one, is the decisive consideration in any assessment as to whether it was vexatious.

A hero emerges from the judgment (no doubt the four requesters do not see her in this light): Mrs Gomm, the parish clerk. Before she arrived “FOIA issues –and probably other council functions – were not efficiently handled” but, in far exceeding her hours and “left at one stage to her own devices and with no authorised source of income for her services” she wrote “admirably clear and courteous responses, which accurately addressed the issues of law involved”, in the face of “relentlessly agressive” correspondence.

(I wonder if Mrs Gomm might have been behind the rather odd outcome to the events, whereby the parties agreed the pragmatic step of disclosing the information just before the appeal hearing (this was not, said the FTT, an acknowledgment that the request had not been vexatious).)

The judgment shows that – although all public authorities have the same obligations under FOIA-  the smaller they are, the greater the burden, and that this can come into play on an analysis of whether a request has been vexatious. The judge ends with an odd but memorably alliterative observation:

Remorseless repetition of regressive requests is not a sensible way to improve performance

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August 8, 2013 · 4:00 pm

The loophole to avoid enforcement?

Cabinet Office, FOI, Financial Times, Christopher Graham, blah blah blah

To recap. The Financial Times recently ran a resounding editorial on FOI, the ICO and the Cabinet Office, lauding the first, criticising the second’s lack of enforcement against the first, and lambasting the third. The Information Commissioner himself, Christopher Graham, replied in rather hurt tones, defending his office. Both Paul Gibbons (FOIMan) and Tim Turner have blogged on this. Here are my oar-sticking-in-coattail-hanging observations.

A key measure used by the Information Commissioner’s Office (ICO) to assess public authorities’ compliance with the Freedom of Information Act 2000 (FOIA) is the percentage of requests which are responded to within the statutory twenty day timescales. The guidance on this says

The ICO is may contact authorities [sic] if…(for those authorities which publish data on timeliness) – it appears that less than 85% of requests are receiving a response within the appropriate timescales.

Let’s ignore the obvious and worrying point that this is an encouragement not to publish such data. Fortunately for our purposes, government departments do commit to doing so, and quarterly reports covering the whole of central government are published. I can’t actually find them all on one page, so here are the reports for the last four quarters

April-June 2012
July-September 2012
October-December 2012
January-March 2013 

If you scroll through those datasets you’ll see that, over the last four quarters, the Cabinet Office has managed to respond to FOI requests within the statutory time limit or with a permitted extension in 92, 93, 95 and 86% of cases. Pretty good eh? This keeps them out of reach of the ICO radar. And, in fact, just prior to this, the Cabinet Office had been monitored by the ICO, and been required to sign an undertaking to improve, after appalling previous statistics had showed compliance in only 42 and 55% of cases in two quarters. After this monitoring period (the MoD were also monitored) the ICO announced

Both authorities have now improved their response times with over 85% of information requests being answered within the time limit of 20 working days and are working hard to deal with outstanding requests where responses have been unduly delayed. The ICO will continue to offer support and advice to help both Departments to ensure that outstanding requests are cleared as soon as possible.

However, what does “with a permitted extension” mean? It means, that in complex cases where a public authority needs more time to consider whether the public interest favours disclosure, it can disapply the twenty-working-day deadline and extend its time for compliance indefinitely, subject to reasonableness (although the ICO says it should be no more than an extra 20 days, he cannot enforce that). So let’s go back to those figures and see how the Cabinet Office would do if there wasn’t this potential loophole. If one simply asks “what percentage of requests were responded to within 20 working days?”, the figures are in fact 77, 77, 79 and 74%. Of course, without access to individual cases it is impossible to say whether these multiple extensions to consider public interest were made legitimately or not. However, the Cabinet Office appears to claim the extension much more than most other departments (the Foreign and Commonwealth Office has similar figures, however).

I am sure the Cabinet Office will claim that the reason it does this is because it has to deal with more complex cases. Maybe that’s the case, but it would be nice if someone could look into it. And, of course, the ICO could. The guidance on how authorities are selected for monitoring doesn’t stop at the 85%-compliance measure. It also says they may contact authorities if 

our analysis of complaints received by the ICO suggests that we have received three or more complaints citing delays within a specific authority within a six month period [or if there is] Evidence of a possible problem in the media or other external sources.

To which I say, ICO, the evidence is clear (look at Tim’s analysis, look at Paul’s, even look again at Chris Cook’s). Compliance stats are not the only measure (and even then they may hide the true picture). The triggers for enforcement are there, but is there a will?

And finally.

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August 6, 2013 · 4:11 pm

On the tweet where you live

Do Home Office tweets of people arrested on suspicion of committing immigration offences engage data protection law?

The recent sordid campaign by the Home Office to publicise their “crackdown on illegal immigration” involved the tweeting of pictures of people apparently arrested in connection with immigration offences. I’m loath to post links because any further publicity risks undermining my point in this piece, but suffice to say that two pictures in particular were posted, one of a man being escorted (police officers at either side of him, holding his arms) from what look like retail premises, and one of a man being led by other officers into a cage in the back of a van. In both cases, the person’s face has been blurred by pixelation. There have been suggestions that the broader aspects of the campaign (disgracefully, vans have been deployed displaying advertisements saying “In the UK illegally? Go home or face arrest“) might be unlawful for breach of the Public Sector Equality Duty, and some have argued that to use the hashtag #immigrationoffenders to accompany pictures of people only suspected of crime might be to prejudge a trial, and could even constitute contempt of court. However, I would argue that the tweets also engage, and potentially breach, data protection law.

For the sake of this argument I will work on the presumption that, because the images of their faces have been obscured no third party can recognise the individuals concerned (I think this is actually probably wrong – potential identifying features, such as location and clothing are still displayed, and it is quite likely that friends, relative, colleagues could identify them). However, this does not mean that the images are outwith the Data Protection Act 1998 (DPA) and the European Data Protection Directive 95/46/EC to which it gives effect. The former defines personal data as

data which relate to a living individual who can be identified—
(a) from those data, or
(b) from those data and other information which is in the possession of, or is likely to come into the possession of, the data controller [emphasis added]

In this instance the Home Office (or its agents) must itself know who the people in the images are (they will have had sufficient identifying information in order to effect an arrest) so, in their hands, the images constitute the personal data of the people in them. As the Information Commissioner’s Office (ICO) explains

It is important to remember that the same piece of data may be personal data in one party’s hands while it may not be personal data in another party’s hands…data may not be personal data in the hands of one data controller…but the same data may be personal data in the hands of another data controller…depending on the purpose of the processing and the potential impact of the processing on individuals

So the taking, retaining and publishing of images of people whose identities are obscured but who can be identified by the data controller will constitute the processing of personal data by that data controller. Consequently, the legal obligations for fair and lawful processing apply: section 4(4) of the DPA imposes a duty on a data controller to comply with the data protection principles in relation to all personal data with respect to which he is the data controller. Lord Hoffman explained this, in the leading FOI (and DPA) case on identification 

As the definitions in section 1(1) DPA make clear, disclosure is only one of the ways in which information or data may be processed by the data controller. The duty in section 4(4) is all embracing. He must comply with the data protection principles in relation to all “personal data” with respect to which he is the data controller and to everything that falls within the scope of the word “processing”. The primary focus of the definition of that expression is on him and on everything that he does with the information. He cannot exclude personal data from the duty to comply with the data protection principles simply by editing the data so that, if the edited part were to be disclosed to a third party, the third party would not find it possible from that part alone without the assistance of other information to identify a living individual. Paragraph (b) of the definition of “personal data” prevents this. It requires account to be taken of other information which is in, or is likely to come into, the possession of the data controller. Common Services Agency v Scottish Information Commissioner (Scotland) [2008] UKHL 47

So the Home Office cannot merely edit the data (by pixelation) and thus exclude it from the duty to process it in accordance with the data protection principles: these images are personal data. Moreover, they will come under the subset known as sensitive personal data, because they consist of information as to the commission or alleged commission by the data subject of any offence (they might also fall into this subset because they show the racial or ethnic origin of the data subject, but this is less certain).

The first data protection principle requires that

Personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless
(a) at least one of the conditions in Schedule 2 is met, and
(b) in the case of sensitive personal data, at least one of the conditions in Schedule 3 is also met.
As this is sensitive personal data, a Schedule 3 condition must be met in order for the processing to be fair and lawful. Try as I might, I cannot find one that is (I adopt the list as explicated by the ICO)

  • The individual who the sensitive personal data is about has given explicit consent to the processing.
  • The processing is necessary so that you can comply with employment law.
  • The processing is necessary to protect the vital interests of: – the individual (in a case where the individual’s consent cannot be given or reasonably obtained), or- another person (in a case where the individual’s consent has been unreasonably withheld).
  • The processing is carried out by a not-for-profit organisation and does not involve disclosing personal data to a third party, unless the individual consents. Extra limitations apply to this condition.
  • The individual has deliberately made the information public.
  • The processing is necessary in relation to legal proceedings; for obtaining legal advice; or otherwise for establishing, exercising or defending legal rights.
  • The processing is necessary for administering justice, or for exercising statutory or governmental functions.
  • The processing is necessary for medical purposes, and is undertaken by a health professional or by someone who is subject to an equivalent duty of confidentiality.
  • The processing is necessary for monitoring equality of opportunity, and is carried out with appropriate safeguards for the rights of individuals.

It will be noted that the two conditions emphasised by me in italics might be thought to apply, but one notes the word “necessary”. In no way were these tweets “necessary” for the purposes to which those conditions relate. By contrast, when authorities publish photographs of wanted criminals, the necessity test will normally be made out. It is, I suppose, just possible that the data subjects gave their explicit consent to the tweets, but that’s vanishingly unlikely. (A question does arise as to what conditions permit the processing by the police of pixelated images of potential offenders in programmes such as “Police, Camera, Action” and “Motorway Cops”: it may be that this has never been challenged, but it may also be that the data controller is in fact the film company, who might be protected by the exemption from much of the DPA if the processing of data is for journalistic purposes).

(I would observe, in passing, that many customary practices to do with publication of information about crimes or suspicion of criminal behaviour are potentially in breach of these provisions of the DPA if they are construed strictly. Although there is the journalistic exemption mentioned above, those to whom that exemption arguably does not apply (bloggers, tweeters, police, other public authorities) are at risk of breach if they, for instance, publish identifying information about people who have criminal convictions or are suspected of having committed a crime. This area of the law, and its implications for open justice, have not, I think, been fully played out yet. For discussions about it see my post and others linked here.)

If no Schedule 3 condition can be met, the processing will not be in accordance with the first data protection principle, and the data controller will be in breach of section 4(4) of the DPA. What flows? Well, probably very little – the data subjects have a right to serve a notice (under section 10 of the DPA) requiring the cessation of processing which is causing or likely to cause substantial unwarranted damage or distress. Additionally, they have a right either to bring a civil claim for damages (very difficult to show) or to complain to the ICO. However, data subjects like this are not necessarily going to want to assert their rights in a strident way. The ICO himself could intervene – he has the power to take enforcement action if he is satisfied a data controller has contravened or is contravening the data protection principles (and, much to his credit, he has recently issued notices against a Council which was requiring taxi drviers to instal CCTV/audio recording facilities in all cabs, and against a Police force which was operating a “ring of steel” ANPR network). It appears though that the Home Office twitter account has gone quiet (it hasn’t tweeted in several days). Perhaps there have been second thoughts not just about the legality, but also the morality, of the campaign. I am always the optimist.

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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August 6, 2013 · 2:11 pm

Let’s blame Data Protection (a new series): Part One

Data Protection is to blame for many things (sleepness nights for Data Protection officers, hits to the public purse,  a proportionate measure of respect and security for people’s sensitive private information, bulging wallets for lawyers) and many people like to criticise it. In this occasional series I want to come to its defence, by pointing out examples where data protection has been wrongly blamed for a failure elsewhere. The Information Commissioner used to do something similar but seems to have given up with that (and, after all, “data protection duck out” is a cringemaking phrase).

So here’s my first example: “Vague” Data Protection Act blights fraud detection, say insurers

The facts of the article itself are fine, as one would expect if the author is Pete Swabey, but it’s the message itself that grates. According to the Chartered Insurance Institute (CII), there is a problem with section 29 of the Data Protection Act 1998 (DPA), which permits the disclosure of personal data by a data controller, whereby the general presumption against non-disclosure is disapplied if applying it would be likely to prejudice any of the following purposes: the prevention or detection of crime, the apprehension or prosecution of offenders, or the assessment or collection of any tax or duty or of any imposition of a similar nature. Normally the question whether to disclose will arise in response to a specific request from another person or body (normally one with crime detection or prosection powers, or tax collection powers). This comes down to a matter of applying a balancing test to specific facts: if I don’t disclose this information, would it be likely to cause prejudice to those purposes?

This is often a difficult decision for a data controller (it’s about serious matters – why should it always be easy?). But the CII complain that

the vagueness of Section 29…has led to an extremely high volume of information requests, with little consistency or clarity. This, it says, is hindering investigations. 

“Certain companies, particularly the lawyers, are sending requests out without thinking about them,” [says] David Clements, motor investigations manager at Zurich

Bad Data Protection Act! Making people ask for disclosure of personal data without giving it much thought!

Also, the fact that requests and responses are made in a haphazard, non-standard fashion creates unnecessary work for fraud investigators.

Silly Data Protection Act! Making an industry incapable of standardizing procedures!

And, indeed, the article says that the industry is trying to sort itself out

The New Generation Claims Board is working on a voluntary code of best practice to help insurance providers both improve the efficacy of their fraud investigations and reduce their risk of non-compliance. 

“We’re going to provide the industry with a best practice protocol plus a template for sending and receiving requests,” Clements explains.

But the evil Data Protection Act is still lurking about causing trouble, because this is only a voluntary scheme

as insurance companies are not even obliged to respond to Section 29(3) requests

Come on Data Protection Act, sort yourself out!

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July 31, 2013 · 7:40 am

An error of judgment

A very brief post, on something in a High Court judgment which may merely be a slip.

On 6 June 2013 a renewed application to appeal to the Employment Appeal Tribunal was heard in the High Court. The applicant, Flynn, is seeking compensation for detriment suffered by reason of the making of a public interest disclosure (the “whistle-blowing claim”) and for arrears for holiday pay. The respondent, Warrior Square Recoveries Limited (“Warrior”) made an initially unsuccessful attempt to have the claims struck out. On appeal the Employment Appeal Tribunal refused to strike out the holiday arrears claim, but struck out the whistle-blowing claim because it had not been brought within the requisite three-month time-limit. Flynn now sought to reinstate the whistle blowing claim.

Lord Justice Rimer was not impressed by the arguments to reinstate, but, rather reluctantly, found one sufficiently compelling to justify permission

The only argument that appeared to me arguably to have some legs to it was that on 21 May 2010 the applicant made a subject access disclosure application to Warrior under the Freedom of Information Act 2000, the purpose being the provision to him of information as to whether or not the defamation claim was being pursued. Warrior had 40 days to comply with the request, but it did not do so. It is said that the expiration of the 40 days marked another deliberate failure by Warrior to act, following which the tribunal proceedings were issued within three months.

With some hesitation, I regard this ground as sufficient to justify permission to appeal…

The perspicacious among you might have noticed something. Subject access, and the 40 day time for compliance, are terms not from the Freedom of Information Act 2000 (FOIA), but from section 7 of the Data Protection Act 1998 (DPA). FOIA only applies to public authorities, of which Warrior is not one. If a public authority receives a request seeking subject access under FOIA it should apply the exemption at section 40(1) and “the public authority will need to deal with it in accordance with the DPA” (Information Commissioner guidance). An employer, such as Warrior, which is not a public authority, has no such obligations under FOIA. It probably should have still, on receipt of a letter purporting to be a FOIA request, have read it and recognised it as being, rather, a subject access request under DPA (under which it does have obligations to respond). But I’m not sure I would criticise it too much for seeing the words “Freedom of Information Act”, and thinking it didn’t need a response. I’m also not sure that the failure to respond to a non-existent obligation under an Act to which the company was not subject should have counted for the purposes of deciding when the time for lodging a claim started.

As I say, this may be a transcription error, or the judge might have mistakenly cited FOIA when he meant DPA, but the fact that this point was determinative of whether to allow permission to appeal means the error (whether it was an actual one, or just in the handed down judgment) is very odd.

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July 30, 2013 · 5:22 pm

It’s still not fine

Last week I blogged about enforcement notices served on three Midlands police forces by the Information Commissioner (IC). I was surprised that the circumstances hadn’t merited stronger sanctions, in the form of monetary penalty notices (MPNs), and I tweeted to ask why.

As you can perhaps see, the IC’s office has kindly replied to my tweet. I had asked

I would really like to know why the IC did not see fit to issue Monetary Penalty Notices. Can you advise?

and their reply says

enforcement notices best means of improving compliance. Considered details of the case inc limited involvement of each force

I have to say I think this is a questionable response (although I take the point that a 140-character limit is restrictive).

Firstly, enforcement activities are not mutually exclusive – it is not uncommon for an enforcement notice and an MPN to be served in tandem on a data controller. thus, as recently as June this year, Glasgow City Council was served an MPN of £150,000 by the IC following the loss of, er, unencrypted laptops, and at the same time was served an enforcement notice requiring certain corrective actions to be undertaken.

Secondly, and I may be misinterpreting, but the reply seems to say that the “limited involvement of each force” was a determining factor in a decision not to serve an MPN. However, there were three data controllers involved. If each of them had a “limited” involvement, one is led to ask “wasn’t that the main problem?”. Derbyshire and Leicestershire both “did not carry out a risk assessment before they joined [the collaboration unit]…relying on the security measures taken by Nottinghamshire“, but those security measures were inadequate (lack of encryption, laptops not physically secured). Meanwhile, none of the forces properly monitored its officers while they were seconded.

It seems to me that the limited involvement of each of the forces might, instead of excusing it, have in fact been the key factor why the security breach happened.

Principle seven of the first schedule to the Data Protection Act 1998 (DPA) requires that

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

Many many public (and private) sector data controllers are undertaking collaborative and partnership working, or are taking steps to do so. All responsible organisations are very aware, where they continue, either jointly or in common with other organisations, to determine the purposes for which and the manner in which any personal data are, or are to be, processed, that they remain a data controller, with the consequent responsibilities and liabilities. They are very aware of the IC’s Data Sharing Code of Practice.

And they are very aware that, if things go wrong with data-sharing, it will not normally be sufficient to point at a partner, and say “it was their fault”, or, even less, for all partners to shrug their shoulders and say, “that wasn’t our responsibility”.

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July 29, 2013 · 1:29 pm

An Unnecessary FOI Appeal?

South Lanarkshire Council have lost what seems to me to have been a rather unnecessary, and surely rather costly, FOI case in the Supreme Court. That said, the judgment is important reading.

It is well-established that, for disclosure of personal data to be lawful under Freedom of Information law (both the Freedom of Information Act 2000 (FOIA and the Freedom of Information (Scotland) Act 2002 (FOI(S)A) it will normally be necessary to satisfy the test in the sixth condition of Schedule Two of the Data Protection Act 1998 (DPA)

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.

Disclosure is, by section 1(1) of the DPA, an act of “processing”.

It is also well-established (indeed, one might almost say it is trite law), that “necessary” in that condition is to be construed in accordance with the relevant European authorities. As the High Court held, in the MPs’ expenses case

‘necessary’ within para 6 of Sched 2 to 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. Corporate Officer of the House of Commons v The Information Commissioner & Ors [2008] EWHC 1084 (Admin)

For reasons which are not entirely clear to me (but I’m not a Scottish lawyer) (in fact, I’m neither Scottish, nor a lawyer) the Court of Session in Scotland said, when hearing an appeal from South Lanarkshire Council of a decision by the Office of the Scottish Information Commissioner (OSIC) to order disclosure of information on how many of the total number of a certain post were placed at specific points in the pay scale, that it saw the force of a submission by counsel for the Council that

the word “necessary” should be accorded its ordinary and natural meaning, with the opening phrase being understood as imposing a distinct requirement

and that

but for the authority [of the MPs expenses case], we would have had little hesitation in giving effect to it

but they didn’t even need to reach a concluded view on this, because it was clear that, in this case, whatever construction was given to “necessary”

the Commissioner could only have concluded that necessity was made out. In particular, he held that the Requester’s own interest coincided with a widespread public interest in the matter of gender equality and that it was important to achieve transparency on the subject of Equal Pay. No better means existed to achieve that goal than by releasing the information in question

Apparently grabbing at that tiny bone thrown them by the Court of Session, the Council appealed to the Supreme Court. The hearing was three weeks ago, and judgment has been handed down today (which strikes me as rather quick) unanimously dismissing the Council’s appeal. At the time of the hearings The Herald reported that the Supreme Court had “slapped down” the Council

A cash-strapped Labour council has been scolded by one of the UK’s most senior judges for “dancing on the head of a pin” with “Alice In Wonderland” legal arguments, which have cost taxpayers thousands of pounds.

Anyone with any experience of litigation knows that it is a dangerous game to predict the outcome on the basis of the apparent approval or disapproval of your argument by the judge – often the strongest argument will be given the heaviest interrogation – but it does appear that, in this case, The Herald wasn’t taking too much of a gamble in anticipating the outcome. Lady Hale, giving the leading judgment, agreed with the Council that

the word “necessary” has to be considered in relation to the processing to which it relates. If that processing would involve an interference with the data subject’s right to respect for his private life, then [Rechnungshof v Ősterreichischer Rundfunk (Joined Cases C-465/00, C-138/01 and C-139/01) [2003] 3 CMLR 265] is clear authority for the proposition that the requirements of article 8(2) of the European Convention on Human Rights must be fulfilled

but in this instance, although disclosure of the information would be “processing” of “personal data” by the Council (as the Council itself could identify those to whom the data related), the requester (nor any other third party) would not be able to identify the data subjects. Accordingly

as the processing requested would not enable Mr Irvine or anyone else to discover the identity of the data subjects, it is quite difficult to see why there is any interference with their right to respect for their private lives

And Lady Hale disagreed with the Council on the construction of “necessary”

all that has to be asked is whether the requester is pursuing a legitimate interest in seeking the information…and whether he needs that information in order to pursue it. It is well established in community law that, at least in the context of justification rather than derogation, “necessary” means “reasonably” rather than absolutely or strictly necessary…necessity is well established in community law as part of the proportionality test. A measure which interferes with a right protected by community law must be the least restrictive for the achievement of a legitimate aim. Indeed, in ordinary language we would understand that a measure would not be necessary if the legitimate aim could be achieved by something less 

As the requester was clearly pursuing a legitimate interest, and this could only be met by disclosure under FOI(S)A the appeal had to fail, and the information falls to be disclosed. It is difficult to see how any other outcome, following the domestic and European authorities, could have ensued.

This does leave unanswered what the outcome would be if, for instance, no legitimate interest were advanced by a requester and/or the data subjects could be identified. In this instance, the OSIC had sought clarification of the requester’s purposes, in an investigation which the Supreme Court held was not in breach of the rules of natural justice, despite a failure to involve the Council in the correspondence. As a blogger activist the requester, Mr Irvine, could clearly point to a legitimate interest – a “serious, ongoing interest in equal pay matters”, but Lady Hale observed that

for example, if Mr Irvine had asked for the names and addresses of the employees concerned, not only would article 8 have clearly been engaged, but the Commissioner would have had to ask himself whether his legitimate interests could have been served by a lesser degree of disclosure

 In European Commission & United Kingdom v Bavarian Lager (Case C-28/08 P) the European Court of Justice found that the European Commission had not erred in refusing to disclose, under the EU Access Regulation, the identities of people attending a meeting, because the company requesting it had not been able to advance a legitimate interest in disclosure (see the excellent Panopticon post on this). FOI was traditionally said to be “applicant blind”, with a requester not needing to advance a purpose for asking for information, but, as these “personal data” cases (and others not relating to personal data – the “social watchdog” argument in the ongoing litigation involving Dominic Kennedy and the Charity Commission) show that motivation can be a determining point when it comes to disclosure under FOI.

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