Do the results of an anonymous survey into data protection practices and attitudes of junior doctors provide justification for compulsory audits?
Tag Archives: ICO
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?
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.
Filed under Data Protection, Home Office, human rights, Information Commissioner, journalism, police
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”.
Back to Blacklists
Could action taken by the ICO in 2009 still have a part to play if construction industry blacklisting has continued? (acknowledgement: Tim Turner made some of these points back in January this year)
In 2009 the Information Commissioner prosecuted Ian Kerr, the then chief officer of a body called the Consulting Association. The Consulting Association had been holding a blacklist of people within the construction industry seen as “troublemakers” (a blacklist inherited from the Economic League, as detailed in Tim Turner’s superb post on the subject) and making this information available to clients on payment of a fee. The fall-out from this continues to this day, with, on the one hand civil claims being pursued, for what I understand to be common law “unlawful means conspiracy” and defamation, and on the other hand, the reports that the Information Commissioner’s Office (ICO) has been asked by Business Secretary, Vince Cable, to investigate allegations that the practice has continued to this day, on major construction projects like the Olympic Park and Crossrail (by the way, the extraordinary testimony of Gail Cartmail of Unite, in that last link, is essential reading).
The ICO’s prosecution of Kerr was for the relatively minor (and relatively rarely enforced) offence under the Data Protection Act 1998 (DPA) of failing to register with the ICO for his processing of personal data. No other sanction was, apparently, open to the ICO at the time. This was because the current regime of civil Monetary Penalty Notices (MPNs) for serious contraventions of the DPA had not then commenced.
As Chris Pounder pointed out at the time, there is even a query, applying the strict definitions of “data” in section 1(1), whether a blacklist held solely on paper, and arranged in, say, date order (rather than by reference to individuals), is even caught by the DPA. If not, then enforcement by the ICO would not be possible. This is because “data” broadly applies only to electronically-processed information or information held as part of a filing system structured by reference to individuals or criteria relating to individuals. One hopes that any alleged blacklisters haven’t made a habit of reading Chris’s blog and subsequently exploited a loophole that remains open.
Putting to one side this “loophole” point, it is likely that any processing of personal data which unfairly and unlawfully deprived someone of employment would constitute a serious contravention of the DPA, probably causing substantial damage and distress, and thus potentially attracting an MPN. An MPN is a relatively powerful weapon in the ICO’s armoury, and in my opinion one that has been used well to drive up data protection standards and drive home the importance of data security. Whether a huge construction firm would notice a (maximum) £500,000 penalty is another matter.
And, of course, none of the money paid under an MPN goes to the victim of a serious DPA contravention (it goes to the government consolidated fund). However, it is open to a data subject in such circumstances to bring a claim in the county court under section 13 of the DPA. Compensation is available if specific damage can be shown, and, if damage can be shown, further compensation for distress can follow. It is not clear to me whether the current claims from the 2009 events contain DPA claims, but the fact that they are being reported primarily as claims for tortious conspiracy suggests that even if so, they are subsidiary to the latter.
However, there is one further sanction which Tim Turner alludes to, which might possibly be in play. When the ICO prosecuted Kerr it also took steps to close down the practice, by issuing DPA enforcement notices against fourteen construction companies who had been proved to have used the list or supplied information: Balfour Beatty Civil Engineering Limited; Balfour Beatty Construction Northern Limited; Balfour Beatty Construction Scottish & Southern Limited; Balfour Beatty Engineering Services (HY) Limited; Balfour Beatty Engineering Services Limited; Balfour Beatty Infrastructure Services limited; CB&I UK Limited; Emcor Engineering Services Limited; Emcor Rail Limited; Kier Limited; NG Bailey Limited; Shepherd Engineering Services Limited; SIAS Building Services Limited; Whessoe Oil & Gas Limited. An example of one of the enforcement notices is archived here. It required the company broadly to
Refrain from using, disclosing or otherwise processing any personal data obtained from Mr Kerr
but also to
Ensure that if any personal data relating to recruitment is obtained from a source other than the data subject, the data subject is, in so far as is practicable, provided with the information specified in paragraph 2(3) at Part II of Schedule 1 to the [DPA] in accordance with the First Data Protection Principle.
Ensure that if any personal data relating to recruitment is disclosed to a third party for use in connection with the recruitment of workers, the data subject is, in so far as is practicable, provided with the information specified in paragraph 2(3) at Part II of Schedule 1 to the [DPA] in accordance with the First Data Protection Principle.
The notices do not appear to have been effective only for a fixed period, so one is to assume that they remain effective*. If any of the firms upon which they were served have sinced breached the terms of the notice they could potentially have committed an offence under section 47(1) of the DPA. That offence is triable either-way, and anyone found guilty is liable on summary conviction, to a fine not exceeding £5000, or on conviction on indictment, to an unlimited fine. And, by section 61 of the DPA, where, as here, the notices were served on bodies corporate, the bodies’ directors and some other officers can also be guilty of the offence of failing to comply with an enforcement notice if the offence is proved to have been committed with their consent or connivance or to be attributable to their neglect.
One wonders if the ICO’s 2009 enforcement proceedings may still have some part to play.
UPDATE: 15 August 2013
*The ICO has confirmed to me that they have no record of any of the Enforcement Notices being cancelled or varied, nor of any applications to cancel or vary being received. The ICO considers that the Enforcement Notices are still effective.
It’s not fine.
About the rather odd Friday afternoon news that the ICO has served enforcement notices, not monetary penalties, on three police forces
In February 2011 the Information Commissioner (IC) served civil Monetary Penalty Notices (MPNs) under section 55A-E of the Data Protection Act 1998 (DPA) on Ealing and Hounslow Councils (£80,000 and £70,000 respectively), after two unencrypted laptops containing sensitive personal data of approximately 1700 individuals were stolen. The Councils had a joint working arrangement whereby Ealing would provide an out-of-hours service on behalf of both councils. The MPNs were fair enough – the IC and others had been saying for some time that encryption of hardware was a necessary data security measure, and even though Ealing Council had a policy on this, it issued the laptops to an employee in breach of it. Hounslow took the hit because they didn’t have a written contract in place to describe and prescribe the collaborative working arrangements it had entered into with Ealing.
One might have wondered, more than two years further on, what size of monetary penalty a data controller would receive if it had also entered into a joint working arrangement in the absence of a written contract, but had failed to carry out a risk assessment, simply relying on what turned out to have been inadequate security measures taken by one of parties, and several unencrypted laptops containing the sensitive personal data of approximately 4500 individuals were stolen.
The answer (unless MPNs are to follow) based on the IC’s news release and blog today about three police forces, appears to be that no MPNs of any size will be served. Rather, enforcement notices have been issued, requiring the police forces to appoint Senior Risk Information Owners (you mean they haven’t got them already?), encrypt all portable devices (you mean they don’t already?), ensure appropriate security measures are taken to protect personal data (you mean they aren’t already?), and ensure officers have received training on the security requirements of the DPA (you mean…etc, etc, etc).
Don’t get me wrong, enforcement notices are an important part of the IC’s regulatory weaponry (I just wish he’d use them on FOI miscreants) but they are a step down from MPNs, and they don’t really serve as a punishment for serious contraventions of the DPA, but merely act as a warning.
Clearly, considerable discretion is conferred on the IC as to what sort of enforcement action is appropriate, but, on the facts, and on comparison with previous MPNs, it is very hard to avoid the conclusion that: the contraventions of the DPA were serious; they were likely to cause damage or distress which was significant; and the police forces knew or ought to have known that there was a risk that a contravention of this kind would occur but failed to take reasonable steps to prevent it. In those circumstances, the relevant conditions for an MPN exist, and I struggle to understand why none transpired.
I do note that the laptop thefts were in August 2010, but this was after DPA provisions conferring the power on the IC to serve MPNs were commenced. I also note that the data subjects appear to have been criminals, but information about criminality is sensitive personal data under the DPA and accorded a higher level of protection.
I’ve asked the ICO on twitter if they can tell me why MPNs were not served. I don’t really expect an answer – it’s a thorny question, and probably doesn’t qualify as an FOI request, but I am, genuinely, interested to know. If anyone has any ideas, I’d like to hear them.
Sony and confidentiality of proceedings
Why I think Sony are wrong to claim they withdrew their databreach fine appeal because of concerns about disclosing sensitive information
So, Sony have withdrawn their appeal of the £250,000 Monetary Penalty Notice served on them by the Information Commissioner (ICO), following the 2011 hack of the Playstation Network which exposed the details of millions of subcribers. I blogged at the time
my suspicious nature makes me wonder if they will ultimately pursue the appeal. Although it will cost them nothing, this isn’t about cost, but reputation, and do Sony really want to risk another day of bad headlines about their data security, in the event that they lose the appeal?
Whether the fear of further publicity was a factor in the withdrawal is impossible to say, but Sony’s public statements about the withdrawal hark back to another point I noted at the time. The ICO’s notice was heavily redacted, clearly to avoid disclosing commercially confidential or sensitive aspects of Sony’s network security, in line with ICO commitment to do so (7.3 in his Monetary Penalty Guidance). However Sony, in withdrawing their appeal to the First-tier Tribunal, now say
After careful consideration we are withdrawing our appeal. This decision reflects our commitment to protect the confidentiality of our network security from disclosures in the course of the proceeding. We continue to disagree with the decision on the merits
This rather disingenuously overlooks the fact that the Rules which govern tribunal proceedings expressly allow for parts of the hearing to be in private (Rule 35.2 of The Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009). So, while they are entitled to continue to disagree with the decision on the merits (reminds me of the cricket umpire who, when confronted with a batsman saying “That wasn’t out!” replied “Oh no? Let’s see what the newspapers say in the morning”) everyone else can be satisfied that Sony were correctly served a £250,000 Monetary Penalty Notice for a serious contravention of the Data Protection Act 1998, and that they chose not to pursue their right of appeal. And they’ve missed their chance for a 20% early payment discount (although that’s hardly going to worry their financial backers).
It’s a victory for the ICO, as well: he is often criticised for failing to take on the big private sector tech and social media companies. In this case, he did, and he won.
The future of the ICO’s funding and functions
In February of this year the House of Commons Justice Committee took evidence from the Information Commissioner and his two deputies, and in March published a lengthy, sympathetic and wide-ranging report on The functions, powers and resources of the Information Commissioner. The Committee has now published the government response, which was in the form of a letter from Lord McNally, Minister of State for Justice. With the greatest of respect for the Ministry of Justice, the response seems to be little more than a deft kick into touch. Here are some examples.
Funding
The report raised various concerns about future funding for the Information Commissioner’s Office (ICO). Firstly, it noted that the ICO cannot use the money it receives for FOI work in the form of grant-in-aid for Data Protection work, and not can it use the funding it receives for Data Protection work from notification fees for FOI work. The report recommended that
The Government should consider relaxing the governing rules around virement and overheads
Lord McNally’s response says
…my officials have been working with the ICO to explore the potential for greater flexibility in the way the ICO apportions shared costs between the Freedom of Information (FOI) and Data Protection (DP) funding streams, in line with the Committee’s recommendation
Which adds little, if any, new information.
The report also noted that, if the European draft General Data Protection Regulation (GDPR) is passed in its current form, the ICO’s main funding for Data Protection work – notification fees – will be removed. It recommended
The Government needs to find a way of retaining a feebased self-financing system for the data protection work of the Information Commissioner, if necessary by negotiating an option for the UK to retain the notification fee or introduce an alternative fee. If the Government fails to achieve this, the unappealing consequence will be that funding of the ICO’s data protection work will have to come from the taxpayer.
To which Lord McNally replied
The work we intend to undertake in partnership with the ICO will include drawing upon research commissioned by the ICO into future funding options, and analysis they have done into the effectiveness of the tiered notification fee system which has been in place since 2009. I would like to reassure the Committee that the Government is committed to ensuring that the Information Commissioner is appropriately resourced.
Er, OK, but does that really say anything at all?
Independence of ICO
The Committee had linked the issue of adequacy of resources to the ICO’s relationship with the executive. If the regulator is reliant on government grant, can it be truly sufficiently independent? Their recommendation was
With the potential removal of the notification fee through the EU Regulation, we reiterate our recommendation that the Information Commissioner should become directly responsible to, and funded by, Parliament
Previously, during a Westminster Hall debate in January, justice minister Helen Grant had been clear that the government did not think this was appropriate. Lord McNally though was – again – equivocal
Whilst there are currently no plans for the Information Commissioner to be a Parliamentary body or to be funded by Parliament, the work we are taking forward on the ICO’s long-term funding and operating model will consider the range of recommendations that have been made by your Committee and others, including Lord Justice Leveson in relation to the future powers, governance and accountability arrangements of the ICO. I look forward to updating the Committee in due course.
Custodial data protection offences
On the subject of whether, finally, custodial sanctions for section 55 data protection offences should be commenced (see Pounder et al, passim), the Committee was clear
We call on the Government to adopt our previous recommendation, as well as that of the Home Affairs Committee, the Joint Committee on the Draft Communications Data Bill and the Leveson Inquiry, and commence sections 77 and 78 of the Criminal Justice and Immigration Act 2008 to allow for custodial sentences for breach of section 55 of the Data Protection Act 1998.
On this at least Lord McNally had a small piece of actual news. The government is to consult on Lord Justice Leveson’s proposals on data protection arising from his inquiry into the culture, practices and ethics of the press
It is…the Government’s view that the recommendations require careful consideration by a wide audience. We therefore intend to conduct a public consultation on the full range of data protection proposals, including on whether to make an Order introducing custodial sentences under section 77 CJIA (a statutory requirement), which will seek views on their impact and how they might be approached.
Compulsory data protection audits
Finally, the Committee had noted the reluctance of some public sector organisations to submit to the offer of a data protection audit by the ICO. They found it “shocking” that this should be the case (sensitive souls eh?) and recommended that the power of compulsory audit should be extended (it currently applies to government departments)
We recommend the Secretary of State bring forward an order under section 41 A of the Data Protection Act to meet the recommendation of the Information Commissioner that his power to serve Assessment Notices be extended to NHS Trusts and local councils.
Lord McNally confirmed that consultation was already under way regarding the extension of this ICO audit power to compel NHS bodies to submit, but he was – you’ve guessed it – equivocal on whether local government would be similarly compelled
There are currently no plans to extend the Information Commissioner’s powers of compulsory audit to local government but the Department for Communities and Local Government are taking a partnership approach to improving local government’s compliance with data protection principles.
I can’t help seeing Lord McNally’s response as little more than a polite nod to the Justice Committee. It promises very little (other than a consultation on Leveson’s data protection proposals, which, given the continuing wrangles over the GDPR, I can’t see achieving much quickly) and delivers nothing immediate. However, the ICO tweeted this morning that it welcomed the response regarding funding and powers, so maybe the future of the independent regulator of transparency and privacy is being decided behind closed doors.
Who’s to blame for the Ministerial Veto?
The people to blame for our not being able to see Prince Charles’ lobbying correspondence with the government are not the judges – it’s the people who passed the FOI Act.
So, perhaps to no one’s great surprise, the judicial review application by the Guardian’s Rob Evans of the Attorney General’s ministerial veto has failed. As three of 11KBW’s array of brilliant information law advocates were instructed in the proceedings, I am sure we will see a Panopticon blog post shortly, and I wouldn’t try to compete with what will be the usual clear and percipient legal analysis (for which, also, see this excellent post from Mark Elliott). However, I wanted to address what I see as a potential misapprehension that this was an expression by the High Court that it agreed that the Attorney General was correct to issue a certificate vetoing disclosure of correspondence between Prince Charles and government departments. While the natural outcome of the court’s judgment is that the correspondence will not be disclosed, what was actually to be decided, and ultimately was decided in the Attorney General’s favour, was whether the exercise of his powers was lawful.
Under section 53(2) of the Freedom of Information Act 2000 (FOIA) a decision notice issued by the Information Commissioner (IC) (or later remade by a tribunal) ceases to have effect if an “accountable person” (effectively, either a Cabinet Minister or the government’s senior law officer) issues a certificate stating that he has “on reasonable grounds” decided that there was in fact no prior failure by the government department in question to comply with a request for information under FOIA. It is a power of executive override of a decision made by the statutory regulator (the IC). Its place in the statutory, and constitutional, scheme is what people should be objecting to, particularly in light of what the court in this case found.
The case dates back to the earliest days of the commencement of FOIA. Evans had requested correspondence between Prince Charles and various government departments, but those departments had refused to disclose. In a detailed and complex analysis the Upper Tribunal (the case having been transferred from the First-tier Tribunal) last September decided that, although the FOIA exemption (at section 37) relating to communications with the Royal Household was engaged, the public interest fell in favour of disclosure of the information (two points of note: first, the section 37 exemption, which was at the time of the request a qualified one, subject to the application of the public interest, has since been amended to make it absolute; second, there were other exemptions engaged, but the section 37 was the focal one).
There was potentially further right of appeal, to the Court of Appeal and, ultimately, the Supreme Court. So why did the government not follow this route? The Campaign for Freedom of Information have issued a press release in which their Director Maurice Frankel says “Ministers should have to appeal against decisions they dislike and not be able simply to overturn them”. I agree (of course) but the reason the government departments did not appeal in this case is because any appeal would have had to have been on a point of law – the more senior courts could not have substituted different findings of fact, or decided whether an exercise of discretion should have been exercised differently. In short, I suspect the government did not appeal because they knew they would have been unsuccessful (or rather, their lawyers would presumably have advised, as lawyers do, that the chances of success were low).
Davis LJ, giving the leading judgment in the High Court, identified that
The underlying submission on behalf of the claimant is, in effect, that the accountable person is not entitled simply to prefer his own view to that of the tribunal
to which he countered
why not? It is inherent in the whole operation of s.53 that the accountable person will have formed his own opinion which departs from the previous decision (be it of Information Commissioner, tribunal or court) and may certify without recourse to an appeal. As it seems to me, therefore, disagreement with the prior decision…is precisely what s.53 contemplates, without any explicit or implicit requirement for the existence of fresh evidence or of irrationality etc. in the original decision which the certificate is designed to override. Of course the accountable person both must have and must articulate reasons for that view…[It] is for the accountable person in practice to justify the certification. But if he does so, and that justification comprises “reasonable grounds”, then the power under s.53(2) is validly exercised. Accordingly, the fact the certificate involves, in this case, in effect reasserting the arguments that had not prevailed before the Upper Tribunal does not of itself mean that it is thereby vitiated
The power to issue a certificate exists under section 53(2), even if, as Lord Judge said, such a power “appears to be a constitutional aberration”. If it exists, it can be exercised, subject to it being done so lawfully. To admit of another interpretation, says David LJ, would be (taken with the claimant’s other arguments) to
greatly [narrow] the ostensible ambit of s.53. As a matter of statutory interpretation I can see no justification for such a limitation, either on linguistic grounds or on purposive grounds
Parliament chose to enact s53, and any potential inherent constitutional imbalance or threat to the rule of law in its having done so is overcome by the availability of judicial review:
for the purposes of s.53 of FOIA, Parliament has provided the procedure by which this statutory provision is to be mediated. It is to be mediated, on challenge by way of judicial review, by the courts assessing whether the Secretary of State has certified “on reasonable grounds”. That involves no derogation from the fundamental principle of the rule of law: on the contrary, it is an affirmation of it.
For the same reasons, any challenge as to whether the exercise of the veto (as applied to environmental information under the Environmental Information Regulations 2004) offends the relevant sections of the originating EC Directive and the Aarhus Convention (specifically, those that deal with the need to have a “review procedure”) could also be met by reference to the availability of judicial review (although one wonders, along with the Aarhus Convention Compliance Committee, whether judicial review meets the requirement to be not “prohibitively expensive”).
And ultimately, and relatively straighforwardly, it fell to the court to
consider whether the Attorney General has shown in the present case reasonable grounds for certifying as he did…[and] the Statement of Reasons appended to the certificate, once carefully read and analysed, does indeed demonstrate such “reasonable grounds”. The views and reasons expressed as to where the balance of public interest lies are proper and rational. They make sense. In fact, I have no difficulty in holding them to be “cogent”. Indeed – especially given that the Attorney General’s reasons and conclusions are in many respects to the like effect as those previously provided by the Information Commissioner – it will be recalled that the Upper Tribunal had itself, in paragraph 4 of its decision, acknowledged that there are “cogent arguments for nondisclosure”
So, if you want to criticise the fact that the Attorney General was allowed to veto disclosure of Prince Charles’ correspondence with the government, don’t criticise the judges, don’t even criticise (too much, at least) the Attorney General himself – rather, criticise Parliament which passed the law.
UPDATE: 25 July 2013
The Guardian reports that permission has been granted to appeal to the Court of Appeal.
ICO Social Media Guidance – Shirking Responsibility?
The Information Commissioner has issued guidance on when the Data Protection Act is held to apply to Social Networking and Online Forums. While I recognise the pragmatic approach it takes, it appears to be in conflict with the leading legal authorities.
The Guidance
Apparently without much fanfare, unless I’ve missed it or am ahead of it, the Information Commissioner’s Office (ICO) has issued guidance for the public on Social networking and online forums when does the DPA apply? The short answer, applying European law, should be “always”. But this would a) make the guidance rather short, and b) not be in line with the ICO’s persistent line that his office should not have to regulate what people say about each other on the internet.
The guidance says
The DPA contains an exemption for personal data that is processed by an individual for the purposes of their personal, family or household affairs. This exemption is often referred to as the ‘domestic purposes’ exemption. It will apply whenever an individual uses an online forum purely for domestic purposes
There are several interesting things about this position statement. First, it omits that the Data Protection Act 1998 (DPA) says that personal data only processed for domestic purposes is exempt from the obligations under the Act. Second, it also, strangely, omits the phrase “including recreational purposes” which arguably supports the ICO’s position (although, as I will mention later, it is controversial wording). Third, it is in direct contradiction of the leading European judicial authority on the exemption.
The guidance goes on to accept that some forms of individual self-expression on the internet will not be caught by the domestic purposes exemption, but as a whole (see the section entitled “ICO involvement in complaints against those running social network sites, organisations and individuals”) it appears to be an exercise in saying “don’t come to us if you don’t like what someone is saying about you on the internet”.
This subject is, of course, of considerable current relevance, given concerns expressed that a regulatory scheme imposed subsequent to the Leveson inquiry might end up applying to the blogosphere, or even to social media in general. I’ve written previously on this, arguing that existing data protection law already applies to such activities.
The Law
Article 3(2) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (“the Directive”) says that
This Directive shall not apply to the processing of personal data…by a natural person in the course of a purely personal or household activity
and recital 12 to the Directive says that the data protection principles contained therein do not apply to the processing
of data carried out by a natural person in the exercise of activities which are exclusively personal or domestic, such as correspondence and the holding of records of addresses
These provisions are given domestic effect in section 36 of the DPA, which says
Personal data processed by an individual only for the purposes of that individual’s personal, family or household affairs (including recreational purposes) are exempt from the data protection principles and the provisions of Parts II and III [emphasis added]
In the leading European case on the provisions of the Directive, Lindqvist (Approximation of laws) [2003] EUECJ C-101/01, the European Court of Justice held that
[the] exception must…be interpreted as relating only to activities which are carried out in the course of private or family life of individuals, which is clearly not the case with the processing of personal data consisting in publication on the internet so that those data are made accessible to an indefinite number of people
Lest there be any doubt as to the meaning of this, the ECJ issued a press release to accompany the judgment, which said
the act of referring, on an internet page, to various persons and identifying them by name…does not fall within the category of activities for the purposes…of purely personal or domestic activities, which are outside the scope of the directive [emphasis in original]
Lindqvist is, I would submit, unequivocal authority for the proposition that referring to an identifiable person or persons on the internet constitutes the processing of personal data, and is processing which is not exempt under Article 3(2) of the Directive.
The ICO has never accepted that Lindqvist has general application to internet publication of personal data. For instance, the ICO’s internal 2011 guidance on “Dealing with complaints about information published online” says
the Lindqvist judgement [sic]…related to a specific set of circumstances and cannot be applied to all cases of online publication
Try as I might I cannot square this with ECJ’s authority in Lindqvist. Still less can I square with it the comment, in an ICO paper on the proposed General Data Protection Regulation that
There has been some suggestion the Regulation should be used to ‘implement’ the Lindqvist decision – in short meaning that information posted openly on the internet necessarily falls outside the law’s personal or household processing exemption. We never wholly accepted the reasoning in Lindqvist…
One might take a moment to reflect on what is being said here. The paper’s author appears to understand the meaning of Lindqvist, regarding the lack of exemption for information posted openly on the internet, but says the ICO doesn’t (wholly) accept what is the binding decision of the ECJ.
One possible justification for the position lies in the additional wording Parliament inserted into section 36 of the DPA relating to “recreational purposes” (although, as I note above, the new guidance doesn’t put much emphasis on this). It is perhaps possible to construe – as the ICO clearly does – this to permit the section 36 exemption to extend to internet publication of personal data. Indeed, the apparently interminable infraction proceedings brought against the UK by the European Commission (tracked doggedly by Dr Chris Pounder) for numerous examples of apparent lack of proper domestic implementation of the Directive include criticism that
the inclusion of “recreational purposes” in the Data Protection Act…in the Commission’s view appeared to be broader than household activities.
However, even if this addition of “recreational purposes” to the UK statutory scheme arguably extends – perhaps impermissibly – the ambit of the exemption, the ICO was told in unequivocal terms in The Law Society & Ors v Kordowski [2011] EWHC 3185 (QB) that
The DPA does envisage that the Information Commissioner should consider what it is acceptable for one individual to say about another, because the First Data Protection Principle requires that data should be processed lawfully
In Kordowski the ICO had been asked by the Law Society to intervene to prevent the publication of defamatory and unfair postings on a website called “Solicitors from Hell”. The ICO had declined, citing – in a letter to the Law Society – the domestic purposes exemption as the reason for not investigating
I do sympathise with solicitors and others who may find it extremely difficult, and in many cases impossible, to have offensive material about them removed from the internet. Perhaps this is a case where the law is out of step with technology. However, I am afraid the DPA is simply not designed to deal with the sort of problem that you have brought to my attention.
Tugendhat J expressed his sympathy
with the Commissioner in what he says about the practical difficulties raised by cases such as the present. It is also beyond doubt that the DPA was not designed to deal with the way in which the internet now works
but said that the ICO had an obligation to investigate a complaint “where there is no room for argument that processing is unlawful”.
The ICO (in the form of David Smith, the Deputy Commissioner responsible for data protection) has argued that the mistake the ICO made in the Kordowski matter was in holding that the site owner and administrator (Kordowski himself) was covered by the section 32 exemption. He does not appear to accept that the people submitting the “ratings” and comments about solicitors were not covered by the same
we took the view, quite rightly I think, that the individuals who posted the comments on the Solicitors from Hell website are just individuals, they are acting in their personal, domestic capacity…I think where we actually went a bit wrong in our analysis…we said the Solicitors from Hell website doesn’t exercise control, is not a data controller and so is not caught by the law. When this case came to court, quite rightly the court looked in more detail at what the operators of the site did, the notice board and it was a lot more than just a notice board, they were actually charging people to put information there and charging solicitors to have information taken down…The intermediary there was clearly a data controller. But this establishing who is a data controller and who isn’t in this whole environment is extremely difficult. [from a transcript of an oral presentation]
While this is an interesting argument, that the site owner, as clearly the primary data controller, holds some sort of primary liability for publication on his or her site, while those posting on it are exempt because of the domestic purposes exemptions, it is hugely problematic. This is because, firstly, it is inconsistent with the judgment in Lindqvist and, secondly, becuase it tends towards an illogical argument that an individual commenter on a site, perhaps a social media site, posting a defamatory, or even a criminal, statement, does so only for domestic purposes.
European developments
In Kordowski the judge’s sympathy rested in part on the fact that the DPA, and the ICO who must regulate it, are creatures of the 1995 Directive
In 1995 search engines were in their infancy. Google was incorporated in 1998. There have been many developments since that time, including the increasing use of third party facilities
In Janaury 2012 the European Commission began the lengthy process of introducing a new European data protection framework. The draft General Data Protection Regulation (GDPR) retains exemption provisions for domestic activities, and introduces new concepts: Article 2(2) states
This Regulation does not apply to the processing of personal data…by a natural person without any gainful interest in the course of its own exclusively personal or household activity [emphasis added]
and Recital 15 explains
This Regulation should not apply to processing of personal data by a natural person, which are exclusively personal or domestic, such as correspondence and the holding of addresses, and without any gainful interest and thus without any connection with a professional or commercial activity [emphasis added]
This might shift the scenery set by Lindqvist to a degree, and it is possible that the ICO’s guidance, although dealing with the current DPA, was written with an eye on the European developments. Indeed, the rest of Recital 15 says
the exemption should also not apply to controllers or processors which provide the means for processing personal data for such personal or domestic activities.
However, it is to be noted that Peter Hustinx, the European Data Protection Supervisor, did not think the draft domestic purposes provisions of the GDPR were adequate
Recital 15 indicates that the exception applies in the absence of gainful interest, but it does not address the common issue of processing of data for personal purposes ona wider scale, such as the publication of personal information within a social network…In line with the rulings of the Court of Justice in Lindquist and Satamedia, the EDPS suggests that a criterion be inserted to differentiate public and domestic activities based on the indefinite number of individuals who can access the information. This criterion should be understood as an indication that an indefinite number of contacts shall in principle mean that the household exemption does no longer apply. It is without prejudice to a stricter requirement for a genuine personal and private link, to prevent that individuals making data available to several hundreds or even thousands of individuals would automatically fall underthe exemption.
But a final development has occurred with the release on 31 May of Irish Presidency of the Council of the European Union’s Justice and Home Affairs draft compromise text which adds to Recital 15 the following words
Personal and household activities include social networking and on-line activity undertaken within the context of such personal and household activities.
One wonders if the ICO was aware, when drafting his Social Media Guidance, of this development. However, and while it remains to be seen what the GDPR will ultimately say, much could still turn on what “undertaken within the context” means within Recital 15.
And we should not get ahead of ourselves. The ICO regulates the DPA, and as the (European) law currently stands, the act of referring to a person on the internet does not attract the domestic purpose exemption. The ICO guidance implies it might. Will this be challenged?
Filed under Data Protection, defamation, Europe, GDPR, Information Commissioner, social media
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