Tag Archives: ICO

April 30, 2024 · 5:58 am

ICO applies public sector fine approach to charity

The Information Commissioner’s Office has fined the CENTRAL YOUNG MEN’S CHRISTIAN ASSOCIATION (YMCA) of London £7500.

The penalty notice is not published at the time of writing (nor anything else yet on the ICO website), although the fine is said to have already been paid, and the press release issued by the ICO says the fine was issued for “a data breach where emails intended for those on a HIV support programme were sent to 264 email addresses using CC instead of BCC, revealing the email addresses to all recipients. This resulted in 166 people being identifiable or potentially identifiable”.

The press release also says that the fine was reduced from an initially-recommended £300,000, “in line with the ICO’s public sector approach”. When I queried the rather obvious point that a charity is not a public authority, an ICO spokesman initially told me that “as Central YMCA is a charity that does a lot of good work, they engaged with us in good faith after the incident happened, recognised their mistake immediately and have made amends to their processing activities and they paid the fine in full straight away, we applied the spirit of the public sector approach to them even though they’re not strictly a public sector body”.

This led to a further follow-up query from me because as a matter of logic and timing, how could the fact that a controller “paid the fine in full straight away” be a mitigating factor in reducing the amount of the fine to be paid? The further response was “The point was that they engaged fully and subsequently paid the fine in full, thus confirming our position that they were engaging and taking the breach seriously. The calculation comes before the payment which has no bearing on the assessed amount.”

I’m not quite sure what to make of this. Can any controller which “does a lot of good work”, engages with the ICO in good faith and remedies processing activities also benefit from a 3900% decrease in fine from an originally-recommended sum? What does “a lot of good work” mean? Is it something only charities do? What about private companies with a strong ESG ethos, or who make significant charitable contributions?

[this post was originally published on my LinkedIn page.]

The views in this post (and indeed most 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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March 9, 2024 · 11:02 am

A sad procedural judgment

In 1973, Pat Campbell, a Catholic factory worker from Banbridge, Northern Ireland, was shot and killed in front of his wife and children, at their family home.

No one was ever convicted of Pat Campbell’s murder, but for many years it has been believed that the killer was senior Ulster Volunteer Force member Robin “The Jackal” Jackson. Jackson – suspected of being responsible for, but never convicted of, at least 50 killings during the Troubles – was also suspected of having links with British military intelligence agencies.

In 2022 Pat Campbell’s widow reached a settlement with the Police Service of Northern Ireland, or PSNI (successor to the Royal Ulster Constabulary, or RUC) of a civil claim for damages, in which she alleged negligence and misfeasance in public office. The BBC reported at the time that “a former RUC officer and two ex-military intelligence officers were set to give evidence about Jackson’s alleged role”.

In the same year as Pat Campbell was murdered, a British intelligence officer wrote a report which is understood to have proposed increasing the RUC’s special branch’s intelligence gathers capabilities.

In 2021 journalist Phil Miller took a case under the Freedom of Information Act 2000 (FOIA) to the Information Tribunal, seeking disclosure by the PSNI of the Morton Report. However, the Tribunal upheld the Information Commissioner’s decision that PSNI were entitled to withhold the report because of the FOIA absolute exemption in relation to information supplied to a public authority by the Security Service.

Mrs Campbell, herself, however, still sought to get hold of the Morton Report. I know this because of a sad procedural judgment from the Information Tribunal.

She is identified as the appellant in case EA/2023/0276, an appeal from ICO decision notice IC-173342-D4D8. But as the judgment explains, she has since died, and the Tribunal has accordingly struck out the proceedings, under rule 8(2) of the procedure Rules, for want of jurisdiction. This is because, although The Law Reform (Miscellaneous Provisions) Act 1934 permits a “cause of action” to proceed after a claimant has died, for the benefit of the deceased’s estate, the Tribunal held, applying the same approach the Upper Tribunal took in a previous case in relation to data protection rights, a FOIA appeal is not a “cause of action” (Letang v Cooper [1965] 1 QB 232 applied). Instead, “‘[the] procedure is no more than a statutory appeal route, a procedural mechanism, for challenging’, in this case, the issue of the decision notice by the Information Commissioner”.

It seems doubtful, in any case, that Mrs Campbell would have succeeded: the exemption at section 23 is effectively insuperable.

But, of course, the PSNI has discretion to disclose information. As the ICO’s decision notice notes, the PSNI previously decided to disclose a redacted version of the 1980 Walker Report on RUC Special Branch informant handling, after the Committee on Administration of Justice took another FOIA case to the Information Tribunal.

There is no reason to suggest the same would happen if another case involving a request for the Morton Report reached the Tribunal again, but someone might consider it worth trying.

The views in this post (and indeed most 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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March 1, 2024 · 7:02 am

John Edwards evidence to the Angiolini inquiry

On 29 February Lady Elish Angiolini published the first report from her inquiry into how off-duty Metropolitan police officer Wayne Couzens was able to abduct, rape and murder Sarah Everard.

Information Commissioner John Edwards contributed to the inquiry, and his evidence is cited at 4.320 (the paragraph is quoted below). It deals with the profoundly important (and perennially misunderstood) issue of data-sharing within and between police forces.

Although for obvious reasons the identity and content of some witness evidence to the inquiry is being kept anonymous, there should be no obvious reason that Mr Edwards’s is, and I hope that the Information Commissioner’s Office will, in addition to publishing his press statement, also publish any written evidence he submitted. It would also be good to know the details of the work Mr Edwards says his office is doing, and continuing, with the police, in this context.

In discussions with senior leaders of relevant organisations, the Inquiry was told that gaps in information-sharing between human resources, recruitment, professional
standards and vetting teams – and, indeed, between forces themselves – were a
significant barrier to capturing a clear picture of officers. The Inquiry heard from different sources, including senior leaders, that there are significant barriers to
information-sharing. Some cite data privacy and protection laws as a reason not to
share information. However, in a discussion with the Information Commissioner, John Edwards, the Inquiry was assured that data protection law recognises that there are legitimate reasons for information-sharing, particularly given the powers attributed to police officers. Indeed, Mr Edwards suggested that data protection law is widely misunderstood and misconstrued, and highlighted a failure of training in this regard.

The views in this post (and indeed most 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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March 1, 2024 · 6:48 am

How did George Galloway come to send different canvassing info to different electors?

As electors went to the polls in the Rochdale by-election on 29 February, a few posts were made on social media showing the disparity between letters sent to different electors by candidate George Galloway. An example is here

On the face of it, Galloway appears to have hoped to persuade Muslim voters to vote for him based on his views on a topic or topics he felt would appeal to them, and others to vote for him based on his views on different topics.

It should be stressed that there is nothing at all wrong that in principle.

What interests me is how Galloway identified which elector to send which letter to.

It is quite possible that a candidate might identify specific roads which were likely to contain properties with Muslim residents. And that, also would not be wrong.

But an alternative possibility is that a candidate with access to the full electoral register, might seek to identify individual electors, and infer their ethnicity and religion from their name. A candidate who did this would be processing special categories of personal data, and (to the extent any form of automated processing was involved) profiling them on that basis.

Article 9(1) of the UK GDPR introduces a general prohibition on the processing of special categories of personal data, which can only be set aside if one of the conditions in Article 9(2) is met. None of these immediately would seem available to a candidate who processes religious and/or ethnic origin data for the purposes of sending targeted electoral post. Article 9(2)(g) provides a condition for processing necessary for reasons of substantial public interest, and Schedule One to the Data Protection Act 2018 gives specific examples, but, again, none of these would seem to be available: paragraph 22 of the Schedule permits such processing by a candidate where it is of “personal data revealing political opinions”, but there is no similar condition dealing with religious or ethnic origin personal data.

If such processing took place in contravention of the prohibition in Article 9, it would be likely to be a serious infringement of a candidate’s obligations under the data protection law, potentially attracting regulatory enforcement from the Information Commissioner, and exposure to the risk of complaints or legal claims from electors.

To be clear, I am not saying that I know how Galloway came to send different letters to different electors, and I’m not accusing him of contravening data protection law. But it strikes me as an issue the Information Commissioner might want to look into.

The views in this post (and indeed most 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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February 9, 2024 · 8:39 am

When is a breach of FOIA not a breach of FOIA?

I posted about this originally on LinkedIn, but I found it so nerdily interesting I wanted to preserve it better by putting it on this blog.

In 4 December 2023 the Information Commissioner’s Office (ICO) issued a decision notice under section 50 of the Freedom of Information Act 2000 (FOIA) finding that its own office did not deal with a FOIA request within the statutory time limit. Subsequently, however, as the ICO website has it, “Following a review of this case it has been noted that the Commissioner erred in citing a breach of section 17(1) of FOIA, having omitted to include the Scottish bank holiday of 7 August 2023 in his calculation of the 20 working day deadline. Therefore, the ICO did not breach section 17(1) of FOIA.”

However, merely staring on its website that “the ICO did not breach FOIA” is not sufficient. As a matter of law, the decision notice itself stands, unless it is substituted by another notice made by the Information Tribunal upon appeal. The ICO cannot withdraw/amend a decision notice, in the absence of an appeal (under the doctrine of “functus officio”, but see also IC v Bell [2014] UKUT 0106)).

So merely saying on its website “we didn’t breach the time limits” cannot cancel or overturn the decision notice.

In some analogous circumstances of “wrong” legal decisions by public authorities bound by functus officio, the authority will consent to judicial review proceedings quashing the decision. But here, the only person with any interest in quashing the decision is the ICO itself, and I don’t believe it could apply for judicial review of its own decision (although there have been cases, I believe, where local authorities have judicially reviewed decisions of their own planning committees).

What the ICO could have done though (and I give a nod to Ganesh Sittampalam here) is appeal the decision itself to the Tribunal. It would seem to be the case that the ICO, as the public authority on whom the decision notice was served, would have had a right of appeal to the Tribunal, even though it would be both the appellant and the respondent. This would, obviously, be rather an odd situation, but it’s one that the ICO already faces when it has to rule (as it did here) on its own compliance with the laws it regulates and enforces (for these purposes it effectively creates a fictional divide between “the ICO” and the “Commissioner” – see for example paragraph four in the decision notice linked above).

However, for whatever reason, the right of appeal was not exercised. But, given that that was the statutory route for challenge, why was the purported correction of the error instead subject to an internal, non-binding and unsatisfactory “review” within the ICO?

One wonders how this will be recorded within the ICO’s datasets: will the ICO accept the point that, as a matter of law, the decision is and remains that it breached the time limits? I doubt it.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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November 17, 2023 · 6:35 am

EIR you sure you got that right?

Someone said they’d read this post if I wrote it. That’s miles more encouragement than I normally need, so here goes.

The other day, Tim Turner’s FOIDaily account pointed out how, after twenty-odd years, some public authorities still fail to identify when a request for information should be dealt with under the Environmental Information Regulations 2004 (EIR), rather than the Freedom of Information Act 2000 (FOIA). An example was given of Information Commissioner’s Office (ICO) identifying where a public authority had got this wrong.

As any fule kno, the two laws operate in parallel to create a regime for access to information held by public authorities, and it’s Regime 101 for a public authority to be able to know, and identify, when each applies. But, in short, if requested information is on, for instance, “measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect…the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape…” then the EIR, and not FOIA, apply.

I pointed out in the comments to the FOIDaily post that I’d seen a case where everyone, from the requester, to the public authority, to the ICO, to the First-tier Tribunal, had failed to deal with a case under the correct scheme.

This was it.

The case was about a request to a district council for information about whether a councillor had (in a private capacity) been required to pay any money to the council in relation to a fly-tipping incident or incidents. The request itself even referred to the Environmental Protection Act 1990, which was a very big hint that environmental information might be at issue.

What appears to have happened is that everyone jumped to the issue of whether disclosure of the requested information would contravene the councillor’s data protection rights. As most similar discussions take place in relation to the provisions of section 40 FOIA, the public authority, the ICO and the Tribunal (and presumably even the requester) all appear to have gravitated towards FOIA, without asking the correct first question: what is the applicable law? The answer to which was, clearly, EIR.

Regulation 13 of the EIR deals with personal data, and is cast in very similar terms to section 40 FOIA. It is, then, strongly arguable that, given that similarity, both the ICO and the Tribunal would have arrived at the same decision whichever regime applied. But Parliament has chosen to have two separate laws, and this is because they have a different genesis (EIR emanate from EU law which in turn emanates from international treaty obligations). Additionally, where all things are otherwise equal, the EIR contain an express presumption in favour of disclosure (something that is not the case in relation to personal data under the FOIA regime – see Lord Hope’s opinion in Common Services Agency v Scottish Information Commissioner).

As Tim implies in his post, the EIR have always been seen as somehow inferior, or subservient, to FOIA. No doubt this is because they are in the form of secondary legislation, rather than statute. This is more an accident of history, rather than of constitutional significance, and is never going to be relevant in most practice. But if the ICO and the courts continue to miss their relevance, it shouldn’t be that surprising that some public authorities will also do so.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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November 16, 2023 · 5:36 pm

I was stupid

I was stupid, I was naive: I thought that recent statements from senior people at the Information Commissioner’s Office (ICO) indicated a willingness to enforce against non-compliance in the use of cookies and cookie banners.

I was wrong. My recent complaint, published as an open letter to John Edwards, the Commissioner, not only took ten weeks to be allocated to a case worker, but, now, that case worker has told me, in terms, that they’re not interested:

we do not respond to cookie complaints individually…Our approach is to focus on sites that are doing nothing to raise awareness of cookies, or get their users’ consent, particularly those visited most in the UK. When consumers raise their complaints with us, we either conduct our own compliance check or write to the organisation…Our approach is to focus on sites that are doing nothing to raise awareness of cookies, or get their users’ consent, particularly those visited most in the UK.

This leaves two things hanging: 1) the site I complained about is one of the most visited in the UK; 2) the website in question arguably “raises awareness” of cookies, but only insofar as it confounds, frustrates and obstructs the user, in a manner which, in my submission, contravenes ePrivacy and Data Protection law, and 3) fails to get users’ consent (as it is defined in those laws).

MLex(£) have now written about this, and have secured a quote from the ICO, which is more than I got, really:

It is an ICO priority to influence changes to online tracking practices to create a more privacy-oriented internet. Where users want personalized adverts they should have the choice to receive them. But where websites don’t give people fair choices over how their data is used we will take action to safeguard their rights.

Try as I might, I can’t square that, and the ICO’s previous public statements about taking firm action, with an approach which fails in any real way to engage with people who take the time and effort to make complaints. But, as I say, I was stupid and naive to think it might have been different.

I’ve now complained, in turn, about the ICO’s handling of my complaint (and made an FOI request), in these terms:

1. I made a complaint under Article 77 UK GDPR. You have not investigated that at all, let alone “to the extent appropriate” as you are required to do under Article 57(1)(f). 

2. My letter was addressed to John Edwards. Has he seen it? 

3. You say, “When consumers raise their complaints with us, we either conduct our own compliance check or write to the organisation.” Which have you done here? Please disclose information either in respect of the compliance check you undertook, or of the correspondence you sent to Associated Newspapers Ltd.

4. Frankly, your response is discourteous. I went to some effort to assist the ICO in its stated intention to investigate poor compliance with PECR, but your response gives no indication that you’ve even read the substance of my complaint.

5. Your letter contains no apology or explanation for the extensive delay in handling it, which falls outside your own service standards.

In seriousness, I find this all really disheartening. The gulf between what the ICO says and what it does is sometimes huge, and not necessarily appreciated by those who don’t work in the field.

But I will get back in my stupid box.

+++

For completeness’ sake, the full response from the caseworker was:

Thank you for your correspondence in which you have complained about Associated Newspapers Ltd and its use of cookies.

Complaints regarding cookies can be submitted to us through the following link: Cookies | ICO

In this case, I have forwarded the information you have provided to the appropriate department. Although we do not respond to cookie complaints individually, we use the information you send us to help us identify, investigate and take action against organisations causing you complaint. To do this, we work alongside other organisations and website owners.

Our approach is to focus on sites that are doing nothing to raise awareness of cookies, or get their users’ consent, particularly those visited most in the UK. When consumers raise their complaints with us,
we either conduct our own compliance check or write to the organisation. Our website provides further information about the action we’re taking on cookies.

Yours sincerely

The views in this post (and indeed most 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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October 23, 2023 · 1:15 pm

Verging on contempt

Where the Information Commissioner serves a decision notice on a public authority, under section 50(3)(b) of the Freedom of Information Act 2000 (FOIA), it is a legal notice and a failure to comply may be treated by the High Court (or in Scotland, the Court of Session) as if the authority had committed a contempt of court. It is, therefore (and to state the obvious) a serious matter not to comply. The process involves the Commissioner “certifying” to the court that there has been a failure to comply.

Yet, a recent FOIA disclosure by the Information Commissioner’s Office (ICO) reveals that it currently has two such cases where it has referred non-compliance by one particular public authority to its own solicitors to initiate (or at least consider) certification proceedings. The rather remarkable thing is that the public authority in question is the government department with overall responsibility for FOIA policy – namely, the Cabinet Office.

The disclosure reveals no more in the way of detail – we do not know what the cases relate to, or what the current progress is (other than court proceedings have not yet commenced). However, it is very rare for a case actually to proceed to certification (in fact, I can only recall one case relating to a s50(3)(b) decision notice, and that was instead certified to the High Court by the First-tier Tribunal under section 61 of FOIA (as it applied then)).

It is worth pointing out that it doesn’t necessarily follow that, if there were a finding of contempt, sanctions would be imposed. Although a committal application or fines are, in principle, available, the Court could merely make a public finding that the Cabinet Office had breached the obligation to respond to the decision notice, but impose no further punishment.

Over the years the Cabinet Office has been subject to much criticism for its approach to FOIA – some of it, quite frankly, fully justified. However, there have been encouraging signs of improvements more recently, with its response to the “Clearing House” review, and its setting up of an Information Rights User Group (of which I am a member), although the latter has not fully kicked off yet, as far as I can understand.

However, it is a terrible look for the primus inter pares of government departments, and the one which holds the brief for FOIA policy, to be faced with potential contempt proceedings for failure to do what the law, and the regulator, requires it to do. Although the original FOIA request to the ICO was not mine, I’ll be interested to see if any updates are given.

The views in this post (and indeed most 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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September 27, 2023 · 7:23 am

Soft regulation = poorer compliance?

The Information Commissioner’s Office (ICO) has published reprimands against seven separate organisations all of whom committed serious infringements of data protection law by inadvertently disclosing highly sensitive information in the context of cases involving victims of domestic abuse.

The ICO trumpets the announcement, but does not appear to consider the point that, until recently, most, if not all, of these infringements would have resulted in a hefty fine, not a regulatory soft tap on the wrist. Nor does it contemplate the argument that precisely this sort of light-touch regulation might lead to more of these sorts of incidents, if organisations believe they can act (or fail to act) with impunity.

I have written elsewhere about both the lack of any policy or procedure regarding the use of reprimands, and also about the lack of empirical evidence that a “no fines” approach works.

I think it is incumbent on the Information Commissioner, John Edwards, to answer this question: are you confident that your approach is not leading to poorer compliance?

The cases include

  • Four cases of organisations revealing the safe addresses of the victims to their alleged abuser. In one case a family had to be immediately moved to emergency accommodation. 
  • Revealing identities of women seeking information about their partners to those partners. 
  • Disclosing the home address of two adopted children to their birth father, who was in prison on three counts of raping their mother. 
  • Sending an unredacted assessment report about children at risk of harm to their mother’s ex-partners. 

The views in this post (and indeed most 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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September 12, 2023 · 8:49 am

Arbitrary criminality and data protection

It shouldn’t be too controversial to state that to commit a criminal offence is a serious matter: although there are – obviously – different levels of severity, certain acts or omissions are so injurious to society as a whole that they warrant prosecution.

The majority of infringements of data protection law are not criminal offences, but, rather, contravention of civil law. But there are a few offences in the statutory scheme. Section 132 of the Data Protection Act 2018 (DPA) is one such. It says that it is an offence for the Information Commissioner, or a member of his staff, to disclose information

which—

(a)has been obtained by, or provided to, the Commissioner in the course of, or for the purposes of, the discharging of the Commissioner’s functions,

(b)relates to an identified or identifiable individual or business, and

(c)is not available to the public from other sources at the time of the disclosure and has not previously been available to the public from other sources,

However, it will not be an offence if the disclosure is made with “lawful authority”, and a disclosure is made with lawful authority only if and to the extent that

(a)the disclosure was made with the consent of the individual or of the person for the time being carrying on the business,

(b)the information was obtained or provided as described in subsection (1)(a) for the purpose of its being made available to the public (in whatever manner),

(c)the disclosure was made for the purposes of, and is necessary for, the discharge of one or more of the Commissioner’s functions,

(d)the disclosure was made for the purposes of, and is necessary for, the discharge of an EU obligation,

(e)the disclosure was made for the purposes of criminal or civil proceedings, however arising, or

(f)having regard to the rights, freedoms and legitimate interests of any person, the disclosure was necessary in the public interest.

This means that, for instance, if an individual or a business has given (willingly or under compulsion) information to the Commissioner for the purposes of a regulatory investigation, and the information is not already public, then the Commissioner must not disclose it, unless he has lawful authority to do so.

Where, also for instance, the Commissioner publishes a legal decision notice, or monetary penalty notice, or the like, this will ordinarily contain information of this kind, but the Commissioner can point to the lawful authority he has under section 132(2)(c) – namely that the disclosure was made for the purposes of, and is necessary for, the discharge of one or more of the Commissioner’s functions. No offence committed.

But section 132 is why the Commissioner’s Office might refuse, under the Freedom of Information Act 2000 (FOIA), to disclose information it has received from an individual or business. For instance, a notification report a controller has submitted pursuant to its “personal data breach” obligations under Article 33 UK GDPR. Here is an example. The ICO withholds the “breach report” in question, citing the exemption at section 44, because of the offence provisions at section 132 DPA.

Whether this is an over-cautious stance is one thing, but it is understandable.

What puzzles me, though, is the inconsistency, because elsewhere, in very similar circumstances, in response to a FOIA request, the ICO has disclosed a personal data report (albeit with redactions). Here, also.

If the Commissioner’s staff in the first example feel that they would commit an offence by disclosing the report, do the staff dealing with the second or third examples not feel that they would also?

One thing that should certainly not happen is claiming exemptions because it is easier to do so than not. I am not saying that has happened here, but there certainly seems to be inconsistency. And inconsistency, or uncertainty, about whether a regulator and his staff might commit a criminal offence is not a good situation.

The views in this post (and indeed most 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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