Tag Archives: data protection

There’s nothing like transparency…

…and this is nothing like transparency

Those of us with long memories will remember that, back in 2007, in those innocent days when no one quite knew what the Freedom of Information Act 2000 (FOIA) really meant, the Information Commissioner’s Office (ICO), disclosed some of its internal advice (“Lines to Take” or “LTTs”) to its own staff about how to respond to questions and enquiries from members of the public about FOIA. My memory (I hope others might confirm) is that ICO resisted this disclosure for some time. Now, the advice documents reside on the “FOIWiki” pages (where they need, in my opinion, a disclaimer to the effect that some of the them at least are old, and perhaps out-of-date).

Since 2007 a number of further FOIA requests have been made for more recent LTTs – for instance, in 2013, I made a request, and had disclosed to me, a number of LTTs on data protection matters.

It is, therefore, with some astonishment, that I note that a recent FOIA request to ICO for up-to-date LTTs – encompassing recent changes to data protection law – has been refused, on the basis that, apparently, disclosure would, or would be likely to, inhibit the free and frank exchange of views for the purposes of  deliberation, and would otherwise prejudice, or would be likely otherwise to prejudice, the effective conduct of public affairs. This is problematic, and concerning, for a number of reasons.

Firstly, the exemptions claimed, which are at section 36 of FOIA, are the statute’s howitzers – they get brought into play when all else fails, and have the effect of flattening everything around them. For this reason, the public authority invoking them must have the “reasonable opinion” of its “qualified person” that disclosure would, or would be likely to, cause the harm claimed. For the ICO, the “qualified person” is the Information Commissioner (Elizabeth Denham) herself. Yet there is no evidence that she has indeed provided this opinion. For that reason, the refusal notice falls – as a matter of law – at the first hurdle.

Secondly, even if Ms Denham had provided her reasonable opinion, the response fails to say why the exemptions are engaged – it merely asserts that they are, in breach of section 17(1)(c) of FOIA.

Thirdly, it posits frankly bizarre public interest points purportedly militating against disclosure, such as that the LTTs “exist as part of the process by which we create guidance, not as guidance by themselves”, and “that ICO  staff should have a safe space to provide colleagues with advice for them to respond to challenges posed to us in a changing data protection landscape”, and – most bizarre of all – “following a disclosure of  such notes in the past, attempts have been made to utilise similar documents to undermine our regulatory procedures” (heaven forfend someone might cite a regulator’s own documents to advance their case).

There has been such an enormous amount of nonsense spoken about the new data protection regime, and I have praised ICO for confronting some of the myths which have been propagated by the ignorant or the venal. There continues to be great uncertainty and ignorance, and disclosing these LTTs could go a long way towards combatting these. In ICO’s defence, it does identify this as a public interest factor militating in favour of disclosure:

disclosure may help improve knowledge regarding the EIR, FOIA or  the new data protection legislation on which the public desire information as evidenced by our increase in calls and enquiry handling

And as far as I’m concerned, that should be the end of the matter. Whether the requester (a certain “Alan Shearer”) chooses to challenge the refusal is another question.

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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Filed under Data Protection, Freedom of Information, GDPR, Information Commissioner, transparency

The wheels of the Ministry of Justice

do they turn so slowly that they’ll lead to the Lord Chancellor committing a criminal offence?

On 21 December last year, as we were all sweeping up the mince piece crumbs, removing our party hats and switching off the office lights for another year, the Information Commissioner’s Office (ICO) published, with no accompanying publicity whatsoever, an enforcement notice served on the Secretary of State for Justice. The notice drew attention to the fact that in July 2017 the Ministry of Justice (MoJ) had had a backlog of 919 subject access requests from individuals, some of which dated back to 2012. And by November 2017 that had barely improved – to 793 cases dating back to 2014.

I intended to blog about this at the time, but it’s taken me around nine months to retrieve my chin from the floor, such was the force with which it dropped.

Because we should remember that the exercise of the right of subject access is a fundamental aspect of the fundamental right to protection of personal data. Requesting access to one’s data enables one to be aware of, and verify the lawfulness of, the processing. Don’t take my word for it – look at recital 41 of the-then applicable European data protection directive, and recital 63 of the now-applicable General Data Protection Regulation (GDPR).

And bear in mind that the nature of the MoJ’s work means it often receives subject access requests from prisoners, or others who are going through or have been through the criminal justice system. I imagine that a good many of these horrendously delayed requests were from people with a genuinely-held concern, or grievance, and not just from irritants like me who are interested in data controllers’ compliance.

The notice required MoJ to comply with all the outstanding requests by 31 October 2018. Now, you might raise an eyebrow at the fact that this gave the MoJ an extra eight months to respond to requests which were already incredibly late and which should have been responded to within forty days, but what’s an extra 284 days when things have slipped a little? (*Pseuds’ corner alert* It reminds me of Larkin’s line in The Whitsun Weddings about being so late that he feels: “all sense of being in a hurry gone”).

Maybe one reason the ICO gave MoJ so long to sort things out is that enforcement notices are serious things – a failure to comply is, after all, a criminal offence punishable on indictment by an unlimited fine. So one notes with interest a recent response to a freedom of information request for the regular updates which the notice also required MoJ to provide.

This reveals that by July this year MoJ had whittled down those 793 delayed cases to 285, with none dating back further than 2016. But I’m not going to start hanging out the bunting just yet, because a) more recent cases might well be more complex (because the issues behind them will be likely to be more current, and therefore potentially more complex, and b) because they don’t flaming well deserve any bunting because this was, and remains one of the most egregious and serious compliance failures it’s been my displeasure to have seen.

And what if they don’t clear them all by 31 October? The notice gives no leeway, no get-out – if any of those requests extant at November last year remains unanswered by November this year, the Right Honourable David Gauke MP (the current incumbent of the position of Secretary of State for Justice) will, it appears, have committed a criminal offence.

Will he be prosecuted?

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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Filed under access to information, Data Protection, Directive 95/46/EC, GDPR, human rights, Information Commissioner, Ministry of Justice, Uncategorized

GDPR – an unqualified right to rectification?

Can FCA – or any data controller – any longer argue that it’s too expensive to have to rectify inaccurate personal data?

Amidst all the hoo-ha about the General Data Protection Regulation (GDPR) in terms of increased sanctions, accountability requirements and nonsense about email marketing, it’s easy to overlook some changes that it has also (or actually) wrought.

One small, but potentially profound difference, lies in the provisions around accuracy, and data subjects’ rights to rectification.

GDPR – as did its predecessor, the 1995 Data Protection Directive – requires data controllers to take “every reasonable step” to ensure that, having regard to the purposes of the processing, personal data which are inaccurate are erased or rectified without delay. Under the Directive the concomitant data subject right was to obtain from the controller, as appropriate the rectification, erasure or blocking of data. Under Article 16 of GDPR, however, there is no qualification or restriction of the right:

The data subject shall have the right to obtain from the controller without undue delay the rectification of inaccurate personal data concerning him or her.

I take this to mean that, yes, a controller must in general only take every reasonable step to ensure that inaccurate data is rectified (the “proactive obligation”, let us call it), but, when put on notice by a data subject exercising his or her right to rectification, the controller MUST rectify – and there is no express proportionality get-out (let us call this the “reactive obligation”).

This distinction, this significant strengthening of the data subject’s right, is potentially significant, it seems to me, in the recently-reported case of Alistair Hinton and the Financial Conduct Agency (FCA).

It appears that Mr Hinton has, for a number of years, been pursuing complaints against the FCA over alleged inaccuracies in its register of regulated firms, and in particular over an allegation that

a register entry which gave the impression both him [sic] and his wife were directors of a firm which the regulator had publicly censured

This puts into rather simple terms what appears to be a lengthy and complex complaint, stretching over several years, and which has resulted in three separate determinations by the Financial Regulators Complaints Commissioner (FRCC) (two of which appear to be publicly available). I no doubt continue to over-simplify when I say that the issue largely turns on whether the information on the register is accurate or not. In his February 2017 determination the FRCC reached the following conclusions (among others)

You and your wife have been the unfortunate victims of an unintended consequence of the design of the FSA’s (and now FCA’s) register, coupled with a particular set of personal circumstances;

…Since 2009 the FSA/FCA have accepted that your register entries are misleading, and have committed to reviewing the register design at an appropriate moment;

Although these findings don’t appear to have been directly challenged by the FCA, it is fair to note that the FCA are reported, in the determinations, as having maintained that the register entries are “technically and legally correct”, whilst conceding that they are indeed potentially misleading.

The most recent FRCC determination reports, as does media coverage, that the Information Commissioner’s Office (ICO) is also currently involved. Whilst the FRCC‘s role is not to decide whether the FCA has acted lawfully or not, the ICO can assess whether or not the FCA’s processing of personal data is in accordance with the law.

And it occurs to me that the difference here between the Directive’s “reactive obligation” and GDPR’s “reactive obligation” to rectify inaccurate data (with the latter not having any express proportionality test) might be significant, because, until now, FCA has apparently relied on the fact that correcting the misleading information on its register would require system changes costing an estimated £50,000 to £100,000, and the FRCC has not had the power to challenge FCA’s argument that the cost of “a proper fix” was disproportionate. But if the Article 16 right is in general terms unqualified (subject to the Article 12(5) ability for a controller to charge for, or refuse to comply with, a request that is manifestly unfounded or excessive), can FCA resist a GDPR application for rectification? And could the ICO decide any differently?

Of course, one must acknowledge that there is a general principle of proportionality at European law (enshrined in Article 5 of the Treaty of the European Union) so a regulator, or a court, cannot simply dispense with the concept. But there was clearly an intention by European legislature not to put an express qualification on the right to rectification (and by extension the reactive obligation it places on controllers), and that will need to be the starting point for any assessment by said regulator, or court.

 

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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On the breach

Failure to notify the ICO in a timely manner of a personal data breach under PECR carries a £1000 fixed penalty notice – why not something similar under wider data protection law?

When the Privacy and Electronic Communications (EC Directive) Regulations 2003 (“PECR”) were amended in 2011 to implement the Citizens’ Rights Directive, an obligation was placed upon providers of a public electronic communications service  (“service providers”) to notify personal data breaches to the Information Commissioner’s Office (ICO) “without undue delay”, and in 2013 article 2(2) of European Commission Regulation 611/2013 provided , in terms, that “without undue delay” would mean “no later than 24 hours after the detection of the personal data breach, where feasible”. The 2011 amendment regulations also gave the ICO the power to serve a fixed penalty notice of £1000 on a service provider which failed to comply with notification obligations.

Thus it was that in 2016 both EE and Talk Talk were served with such penalties, with the latter subsequently unsuccessfully appealing to the Information Tribunal, and thus it was that, last week, SSE Energy Supply were served with one. The SSE notice is interesting reading – the personal data breach in question (defined in amended regulation 2 of PECR 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”) consisted solely of the sending of one customer email (containing name and account number) to the wrong email address, and it appears that it was reported to the ICO two days after SSE realised (so, effectively, 24 hours too late). If this appears harsh, it is worth noting that the ICO has discretion over whether to impose the penalty or not, and, in determining that she should, the Commissioner took into account a pour encourager les autres argument that

the underlying objective in imposing a monetary penalty is to promote compliance with PECR. The requirement to notify…provides an important opportunity…to assess whether a service provider is complying with its obligations under PECR…A monetary penalty in this case would act as a general encouragement towards compliance…

As any fule kno, the looming General Data Protection Regulation (“GDPR”) expands to all data controllers this obligation to notify the ICO of qualifying personal data breaches. Under GDPR the definition is broadly similar to that in PECR (“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”) and a breach qualifies for the notification requirements in all cases unless it is “unlikely to result in a risk to the rights and freedoms of natural persons”. Under GDPR, the window for notification is 72 hours.

But under GDPR, and under the Data Protection Bill currently in Parliament, there is no provision for similar fixed penalty notices for notification failures (although, of course, a failure to notify a breach could constitute a general infringement under article 83, attracting a theoretical non-fixed maximum fine of €10m or 2% of global annual turnover). Is Parliament missing a trick here? If the objective of the PECR fixed penalty notice is to promote compliance with PECR, then why not a similar fixed penalty notice to promote compliance with wider data protection legislation? In 2016/17 the ICO received 1005 notifications by service providers of PECR breaches (up 63% on the previous year) and analysing/investigating these will be no small task. The figure under GDPR will no doubt be much higher, but that is surely not a reason not to provide for a punitive fixed penalty scheme for those who fail to comply with the notification requirements (given what the underlying objective of notification is)?

I would be interested to know if anyone is aware of discussions on this, and whether, as it reaches the Commons, there is any prospect of the Data Protection Bill changing to incorporate fixed penalties for notification failures.

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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Filed under Breach Notification, Data Protection, Data Protection Bill, enforcement, GDPR, Information Commissioner, monetary penalty notice, PECR

This old world will never change

Complacency about data protection in the NHS won’t change unless ICO takes firm action

Back in September 2016 I spoke to Vice’s Motherboard, about reports that various NHS bodies were still running Windows XP, and I said

If hospitals are knowingly using insecure XP machines and devices to hold and otherwise process patient data they may well be in serious contravention of their [data protection] obligations

Subsequently, in May this year, the Wannacry exploit indicated that those bodies were indeed vulnerable, with multiple NHS Trusts and GP practices subject to ransomware demands and major system disruption.

That this had enormous impact on patients is evidenced by a new report on the incident from the National Audit Office (NAO), which shows that

6,912 appointments had been cancelled, and [it is] estimated [that] over 19,000 appointments would have been cancelled in total. Neither the Department nor NHS England know how many GP appointments were cancelled, or how many ambulances and patients were diverted from the five accident and emergency departments that were unable to treat some patients

The NAO investigation found that the Department of Health and the Cabinet Office had written to Trusts

saying it was essential they had “robust plans” to migrate away from old software, such as Windows XP, by April 2015. [And in] March and April 2017, NHS Digital had issued critical alerts warning organisations to patch their systems to prevent WannaCry

Although the NAO report is critical of the government departments themselves for failure to do more, it does correctly note that individual healthcare organisations are themselves responsible for the protection of patient information. This is, of course, correct: under the Data Protection Act 1998 (DPA) each organisation is a data controller, and responsible for, among other things, for ensuring that appropriate technical and organisational measures are taken against unauthorised or unlawful processing of personal data.

Yet, despite these failings, and despite the clear evidence of huge disruption for patients and the unavoidable implication that delays in treatment across all NHS services occurred, the report was greeted by the following statement by Keith McNeil, Chief Clinical Information Officer for NHS England

As the NAO report makes clear, no harm was caused to patients and there were no incidents of patient data being compromised or stolen

In fairness to McNeil, he is citing the report itself, which says that “NHS organisations did not report any cases of harm to patients or of data being compromised or stolen” (although that is not quite the same thing). But the report continues

If the WannaCry ransomware attack had led to any patient harm or loss of data then NHS England told us that it would expect trusts to report cases through existing reporting channels, such as reporting data loss direct to the Information Commissioner’s Office (ICO) in line with existing policy and guidance on information governance

So it appears that the evidence for no harm arising is because there were no reports of “data loss” to the ICO. This emphasis on “data loss” is frustrating, firstly because personal data does not have to be lost for harm to arise, and it is difficult to understand how delays and emergency diversions would not have led to some harm, but secondly because it is legally mistaken: the DPA makes clear that data security should prevent all sorts of unauthorised processing, and removal/restriction of access is clearly covered by the definition of “processing”.

It is also illustrative of a level of complacency which is deleterious to patient health and safety, and a possible indicator of how the Wannacry incidents happened in the first place. Just because data could not be accessed as a result the malware does not mean that this was not a very serious situation.

It’s not clear whether the ICO will be investigating further, or taking action as a result of the NAO report (their response to my tweeted question – “We will be considering the contents of the report in more detail. We continue to liaise with the health sector on this issue” was particularly unenlightening). I know countless dedicated, highly skilled professionals working in the fields of data protection and information governance in the NHS, they’ve often told me their frustrations with senior staff complacency. Unless the ICO does take action (and this doesn’t necessarily have to be by way of fines) these professionals, but also – more importantly – patients, will continue to be let down, and in the case of the latter, put at the risk of harm.

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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DCMS Statement of Intent on the Data Protection Bill

Not so much a Statement of Intent, as a Statement of the Bleeding Obvious

The wait is not quite over. We don’t yet have a Data Protection Bill, but we do have a Statement of Intent from DCMS, explaining what the proposed legislation will contain. I though it would be helpful to do a short briefing note based on my very quick assessment of the Statement. So here it is

IT’S JUST AN ANNOUNCEMENT OF ALL THE THINGS THE UK WOULD HAVE TO IMPLEMENT ANYWAY UNDER EUROPEAN LAW

By which I mean, it proposes law changes which will be happening in May next year, when the General Data Protection Regulation becomes directly applicable, or changes made under our obligation to implement the Police and Crime Directive. In a little more detail, here are some things of passing interest, none of which is hugely unexpected.

As predicted by many, at page 8 it is announced that the UK will legislate to require parents to give consent to children’s access to information society services (i.e. online services) where the child is under 13 (rather than GDPR’s default 16). As the UK lobbied to give member states discretion on this, it is no surprise.

Exemptions from compliance with majority of data protection law when the processing is for the purposes of journalism will remain (page 19). The Statement says that the government

believe the existing exemptions set out in section 32 strike the right balance between privacy and freedom of expression

But of potential note is the suggestion that

The main difference will be to amend provisions relating to the ICO’s enforcement powers to strengthen the ICO’s ability to enforce the re-enacted section 32 exemptions effectively

Without further details it is impossible to know what will be proposed here, but any changes to the existing regime which might have the effect of decreasing the size of the media’s huge carve-out will no doubt be vigorously lobbied against.

There is confirmation (at pp17 and 18) that third parties (i.e. not just criminal justice bodies) will be able to access criminal conviction information. Again, this is not unexpected – the regime for criminal records checks for employers etc was unlikely to be removed.

The Statement proposes a new criminal offence of intentionally or recklessly re-identifying individuals from anonymised or pseudonymised data, something the Commons Science and Technology Committee has called for. Those who subsequently process such data will also be guilty of an offence. The details here will be interesting to see – as with most privacy-enhancing technology, in order for anonymisation to be robust it needs to stress-tested – such testing will not be effective if those undertaking do so at risk of committing an offence, so presumably the forthcoming Bill will provide for this.

The Bill will also introduce an offence of altering records with intent to prevent disclosure following a subject access request. This will use the current mechanism at section 77 of the Freedom of Information Act 2000. Whether that section itself will be amended (time limits for prosecutions militate against its effectiveness) remains unknown.

I also note that the existing offence of unlawfully obtaining personal data will be widened to those who retain personal data against the wishes of the data controller, even where it was initially obtained lawfully. This will probably cover those situations where people gather or are sent personal data in error, and then refuse to return it.

There is one particular howler at page 21, which suggests the government doesn’t understand what privacy by design and privacy by default mean:

The Bill will also set out to reassure citizens by promoting the concept of “privacy by default and design”. This is achieved by giving citizens the right to know when their personal data has been released in contravention of the data protection safeguards, and also by offering them a clearer right of redress

Privacy by design/default is about embedding privacy protection throughout the lifecycle of a project or process etc., and has got nothing at all to do with notifying data subjects of breaches, and whether this is a drafting error in the Statement, or a fundamental misunderstanding, it is rather concerning that the government, which makes much of “innovation” (around which privacy by design should be emphasised), fails to get this right.

So that’s a whistle stop tour of the Statement, ignoring all the fluff about implementing things which are required under GDPR and the Directive. I’ll update this piece in due course, if anything else emerges from a closer reading.

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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Data Protection distress compensation for CCTV intrusion

The Information Commissioner’s Office (ICO) recently (2 February) successfully prosecuted a business owner for operating CCTV without an appropriate notification under section 18 of the Data Protection Act 1998 (DPA), announcing:

Businesses could face fines for ignoring CCTV data protection law

But a recent case in the Scottish Sheriff Court shows that CCTV and data protection can also have relevance in private law civil proceedings. In Woolley against Akbar [2017] ScotsSC 7 the husband and wife pursuers (equivalent to claimants in England and Wales) successfully brought a claim for compensation for distress caused by the defender’s (defendant in England and Wales) use of CCTV cameras which were continuously recording video and audio, and which were deliberately set to cover the pursuers’ private property (their garden area and the front of their home). Compensation was assessed at £8634 for each of the pursuers (so £17268 in total) with costs to be assessed at a later date.

Two things are of particular interest to data protection fans: firstly, the willingness of the court to rule unequivocally that CCTV operated in non-compliance with the DPA Schedule One principles was unlawful; and secondly, the award of compensation despite the absence of physical damage.

The facts were that Mr and Mrs Woolley own and occupy the upper storey of a dwelling place, while Mrs Akbar owns and operates the lower storey as a guest house, managed by her husband Mr Akram. In 2013 the relationship between the parties broke down. Although both parties have installed CCTV systems, the pursuers’ system only monitors their own property, but this was not the case with the defender’s:

any precautions to ensure that coverage of the pursuers’ property was minimised or avoided. The cameras to the front of the house record every person approaching the pursuers’ home. The cameras to the rear were set deliberately to record footage of the pursuers’ private garden area. There was no legitimate reason for the nature and extent of such video coverage. The nature and extent of the camera coverage were obvious to the pursuers, as they could see where the cameras were pointed. The coverage was highly intrusive…the defender also made audio recordings of the area around the pursuers’ property…they demonstrated an ability to pick up conversations well beyond the pursuers’ premises. There are four audio boxes. The rear audio boxes are capable of picking up private conversations in the pursuers’ rear garden. Mr Akram, on one occasion, taunted the pursuers about his ability to listen to them as the pursuers conversed in their garden. The defender and Mr Akram were aware of this at all times, and made no effort to minimise or avoid the said audio recording. The nature of the coverage was obvious to the pursuers. Two audio boxes were installed immediately below front bedroom windows. The pursuers feared that conversations inside their home could also be monitored. The said coverage was highly intrusive.

Although, after the intervention of the ICO, the defender realigned the camera at the rear of the property, Sheriff Ross held that the coverage “remains intrusive”. Fundamentally, the sheriff held that the CCTV use was: unfair (in breach of the first data protection principle); excessive in terms of the amount of data captured (in breach of the third data protection principle); and retained for too long (in breach of the fifth data protection principle).

The sheriff noted that, by section 13(2) of the DPA, compensation for distress can only be awarded if the pursuer has suffered “damage”, which was not the case here. However, the sheriff further correctly noted, and was no doubt taken to, the decision of the Court of Appeal in Vidal-Hall & Ors v Google [2015] EWCA Civ 311 in which the court struck down section 13(2) as being incompatible with the UK’s obligations under the European data protection directive and the Charter of Fundamental Rights (my take on Vidal Hall is here). Accordingly, “pure” distress compensation was available.

Although the facts here show a pretty egregious breach of DPA, it is good to see a court understanding and assessing the issues so well, no doubt assisted in doing so by Paul Motion, of BTO Solicitors, who appeared for the pursuers.

One niggle I do have is about the role of the ICO in all this: they were clearly apprised of the situation, and could surely have taken enforcement action to require the stopping of the CCTV (although admittedly ICO cannot make an award of compensation). It’s not clear to me why they didn’t.

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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Get rights right, gov.uk

Government page on subject access rights is not accurate

Right of access to data about oneself is recognised as a fundamental right (article 8(2) of the Charter of Fundamental Rights of the European Union*). Section 7 of the UK’s Data Protection Act 1998 (DPA) gives expression to this, and provides that as a general right individuals are entitled to be told whether someone else is processing their data, and why, and furthermore (in terms) to be given a copy of that data. The European General Data Protection Regulation retains and bolsters this right, and recognises its importance by placing it in the category of provisions non-compliance with which could result in an administrative fine for a data controller of up to €20m or 4% of turnover (whichever is higher).

So subject access is important, and this is reflected in the fact that it is almost certainly the most litigated of provisions of the DPA (a surprisingly under-litigated piece of legislation). Many data controllers need to commit significant resources to comply with it, and the Information Commissioner’s Office (ICO) produced a statutory code of practice on the subject in 2014.

But it is not an absolute right. The DPA explains that there are exemptions to the right where, for instance, compliance would be likely to prejudice the course of criminal justice, or national security, or, in the case of health and social care records, would be likely to cause serious harm to the data subject or another person. Additionally the DPA recognises that, where complying with a subject access request would involve disclosing information about another individual, the data controller should not comply unless that other person consents, or unless it “is reasonable in all the circumstances to comply with the request without the consent of the other individual” (section 7(4) DPA).

But this important caveat (the engagement of the parallel rights of third parties) to the right of subject access is something which is almost entirely omitted in the government’s own web guidance regarding access to CCTV footage of oneself. It says

The CCTV owner must provide you with a copy of the footage that you can be seen in. They can edit the footage to protect the identities of other people.

The latter sentence is true, and especially in the case where footage captures third parties it is often appropriate to take measures to mask their identities. But the first sentence is simply not true. And I think it is concerning that “the best place to find government services and information” (as gov.uk describes itself) is wrong in its description of a fundamental right.

A data controller (let’s ignore the point that a “CCTV owner” might not necessarily be the data controller) does not have an unqualified obligation to provide information in response to a subject access request. As anyone working in data protection knows, the obligation is qualified by a number of exemptions. The page does allude to one of these (at section 29 of the DPA):

They can refuse your request if sharing the footage will put a criminal investigation at risk

But there are others – and the ICO has an excellent resource explaining them.

What I don’t understand is why the gov.uk page fails to provide better (accurate) information, and why it doesn’t provide a link to the ICO site. I appreciate that the terms and condition of gov.uk make clear that there is no guarantee that information is accurate, but I think there’s a risk here that data subjects could gather unreasonable expectations of their rights, and that this could lead to unnecessary grievances or disputes with data controllers.

Gov.uk invite comments about content, and I will be taking up this invitation. I hope they will amend.

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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A Massive Impact for the ICO?

[Edited to add: it is well worth reading the comments to this piece, especially the ones from Chris Pounder and Reuben Binns]

I needed a way to break a blogging drought, and something that was flagged up to me by a data protection colleague (thanks Simon!) provides a good opportunity to do so. It suggests that the drafting of the GDPR could lead to an enormous workload for the ICO.

The General Data Protection Regulation (GDPR) which entered into force on 24 May this year, and which will apply across the European Union from 25 May 2018, mandates the completion of Data Protection Impact Assessments (DPIAs) where indicated. Article 35 of the GDPR explains that

Where a type of processing in particular using new technologies, and taking into account the nature, scope, context and purposes of the processing, is likely to result in a high risk to the rights and freedoms of natural persons, the controller shall, prior to the processing, carry out an assessment of the impact of the envisaged processing operations on the protection of personal data

In the UK (and indeed elsewhere) we already have the concept of “Privacy Impact Assessments“, and in many ways all that the GDPR does is embed this area of good practice as a legal obligation. However, it also contains some ancillary obligations, one of which is to consult the supervisory authority, in certain circumstances, prior to processing. And here is where I get a bit confused.

Article 36 provides that

The controller shall consult the supervisory authority prior to processing where a data protection impact assessment under Article 35 indicates that the processing would result in a high risk in the absence of measures taken by the controller to mitigate the risk
[emphasis added]

A close reading of Article 36 results in this: if the data controller conducts a DPIA, and is of the view that if mitigating factors were not in place the processing would be high risk, it will have to consult supervisory authority (in the UK, the Information Commissioner’s Office (ICO)). This is odd: it effectively renders any mitigating measures irrelevant. And it appears directly to contradict what recital 84 says

Where a data-protection impact assessment indicates that processing operations involve a high risk which the controller cannot mitigate by appropriate measures in terms of available technology and costs of implementation, a consultation of the supervisory authority should take place prior to the processing [emphasis added]

So, the recital says the obligation to consult will arise where high risk is involved which the controller can’t mitigate, while the Article says the obligation will arise where high risk is involved notwithstanding any mitigation in place.

Clearly, the Article contains the specific legal obligation (the recital purports to set out the reason for the contents of the enacting terms), so the law will require data controllers in the UK to consult the ICO every time a DPIA identifies an inherently high risk processing activity, even if the data controller has measures in place fully to mitigate and contain the risk.

For example, let us imagine the following processing activity – collection of and storage of customer financial data for the purposes of fulfilling a web transaction. The controller might have robust data security measures in place, but Article 36 requires it to consider “what if those robust measures were not in place? would the processing be high risk?” To which the answer would have to be “yes” – because the customer data would be completely unprotected.

In fact, I would submit, if article 36 is given its plain meaning virtually any processing activity involving personal data, where there is an absence of mitigating measures, would be high risk, and create a duty to consult the ICO.

What this will mean in practice remains to be seen, but unless I am missing something (and I’d be delighted to be corrected if so), the GDPR is setting the ICO and other supervisory authorities up for a massive influx of work. With questions already raised about the ICO’s funding going forward, that is the last thing they are likely to need.

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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Blackpool Displeasure Breach, redux

Over a year ago I blogged about a tweet by a member of the Oyston family connected with Blackpool FC:

a fan replies to a news item about the club’s manager, and calls the Oyston family “wankers”. Sam Oyston responds by identifying the seat the fan – presumably a season-ticket holder – occupies, and implies that if he continues to be rude the ticket will be withdrawn

For the reasons in that post I thought this raised interesting, and potentially concerning, data protection issues, and I mentioned that the Information Commissioner’s Office (ICO) had powers to take action. It was one of (perhaps the) most read posts (showing, weirdly, that football is possibly more of interest to most people than data protection itself) and it seemed that some people did intend complaining to the ICO. So, recently, I made an FOI request to the ICO for any information held by them concerning Blackpool FC’s data protection compliance. This was the reply

We have carried out thorough searches of the information we hold and have identified one instance where a member of the public raised concerns with the ICO in September 2014, about the alleged processing of personal data by Blackpool FC.

We concluded that there was insufficient evidence to consider the possibility of a s55 offence under the Data Protection Act 1998 (the DPA), and were unable to make an assessment as the individual had not yet raised their concerns with Blackpool FC direct.  We therefore advised the individual to contact the Club and to come back to us if they were still concerned, however we did not hear from them again.  As such, no investigation took place, nor was any assessment made of the issues raised.

This suggests the ICO appears wrongly to consider itself unable to undertake section 42 assessments under the Data Protection Act 1998 unless the data subject has complained to the data controller – a stance strongly criticised by Dr David Erdos on this blog, and one which has the potential to put the data subject further in dispute with the data controller (as I can imagine could have happened here, with a family some of whose members are ready to sue to protect their reputation). It also suggests though that maybe people weren’t quite as interested as the page views suggested. Nonetheless, I am posting this brief update, because a few people asked about it.

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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