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Disclosure of Staff Names in FOI Refusals

This is an FOI decision from the Information Commissioner that I have planned to blog about for some time, but have now only just got round to blogging about it. On 11 March 2013 the ICO issued decision notice FS50468600 which involved the Department for Work and Pensions (DWP). The content of the decision notice is not all that important until we turn to paragraphs 32-36, which are headed up as “other matters”.

In particular paragraph 35 is of note in which it states that his office experienced difficulty in actually speaking to those who were involved in the request at the DWP’s side of things. It described the DWP’s practice of not providing telephone numbers or contact details within its responses and how this makes it very difficult for the appropriate contact to be located within the organisation. The public authority advised the Commissioner that it did not include these details so as not to breach the privacy of the non-senior staff involved; it described the staff in question as not being in public-facing roles.

In Paragraph 36 of the decision notice the Commissioner states quite clearly that he does not agree with this approach. The decision notice states that “if such staff are responding to requests made under the FOIA then he considers this to be a public-facing role which is unlikely to attract an expectation of privacy” (Paragraph 36).

The DWP are by no means the only public authority which has adopted similar processes in respect of FOI requests. I can remember one time trying to get hold of a central Government department (I can’t remember exactly which one, but I have a feeling it was either the Home Office or a connected public authority) to discuss a response that had been issued by them (something that merely wasn’t very clear and, as it later transpired wasn’t in need of an internal review). However, there was no contact details provided for the individual. I was informed that the FOI team were not public-facing and they wouldn’t speak to members of the public over the telephone.

It was very frustrating and actually resulted in a higher cost to the public authority in my case. There was just one thing that I wasn’t clear about and I’m sure that had I been able to have a quick telephone conversation with the person who issued the decision then there would have been no need for them to conduct an internal review. However, the Authority’s attitude and processes meant my only option to get the clarification was to request an internal review. This will have then required a senior member of staff within the authority to review the entire handling of the request and issue a response to me; far more expensive than 5 minutes on the phone explaining something to the applicant.

Not publishing contact details for those responsible for FOI within the organisation also makes seeking advice and assistance from the public authority almost impossible. My reading of the Act suggests to me that advice and assistance is not only something to be provided in a refusal notice, but something that should be available to prospective applicants. I know that I’ve certainly phoned up a public authority and had a chat with them about a request before making it; as a consequence I have been able to frame my request in a way that has made it a much more efficient process for the public authority (and thereby reducing the cost to the taxpayer). The FOI Officer, knowing the structure of their organisation and how information is generally held, was able to advise as to what information they were likely to hold and how it was likely to be held.

I tend to agree with the commissioner that anyone sending a response out to a FOI request is clearly public-facing; it might be that a particular role was not public facing pre-FOI, but in these post-FOI days anyone could, in theory, be a public-facing member of an authority’s staff. It should be easy for applicants to contact public authorities, not least because the public authority is obliged to provide advice and assistance, but it can just save public authorities money. It can help ensure more focused FOIs that are easier to deal with and can prevent expensive internal review requests (or perhaps even more expensive ICO investigations).(Ed – See also Ibrahim Hasan’s blog post on disclosure of staff names under FOI)

Hopefully the ICO’s criticisms of this approach in this decision notice will feed their way round any other public authorities who still adopt a practice of not giving out contact details for someone able to provide advice and assistance.

Alistair Sloan is a 4th year LLB student in Scotland, blogger (http://scotslaw.wordpress.com/about-2/) and FOI proponent. Follow him on Twitter (http://www.sloansonline.me.uk/)

Ibrahim Hasan will be discussing this and other recent FOI decisions in the FOI Update workshop on 3^rd June 2012 in London.

Do you want an international recognised qualification in FOI?

The ISEB Certificate in Freedom of Information starts in Manchester and London in June.

ICO 2013 Conference Review

Roger Bescoby reviews the recent ICO conference…

I was on my travels last week and on Tuesday (5^th May 2013) found myself at the ICO Data Protection Officers’ Conference in Manchester. Over 800 people present and about 300 ‘waiting outside the door’ as they say. It was, and always is, massively oversubscribed. It is the main event in the ICO calendar and a fantastic opportunity to get a feel for the way the regulators are thinking. Well worth getting on the guest list.

This is the third year I have attended this Conference and once again I found myself pretty much the only representative from the insurance investigation sector. Can you believe that?? Here we are, post Leveson, NOTW and with worrying EU Regulation on privacy coming out of our ears – and only Brownsword Group there from the entire industry. Does that make us ‘anoraks’ or supremely responsible chaps?? Answers on a post card…

I picked up on two main points that I would like to share with you all:

Europe? You Never Had It So Good…

There are some massive EU reforms on the way in the form of new European Regulation on Data Privacy. By 2016 it’s looking like we are going to be regulated centrally by Brussels on DP. ‘Fine’ you may say, but when you consider the vastly differing attitudes towards Data Protection by the 27 Member States, and that the UK currently has a considerably more liberal attitude than most, it’s time to look at what might be coming our way. The explosion in social media is being blamed for the need for tougher regulations – an observation difficult to argue with.

You may remember I highlighted last year that current proposals in Brussels suggest that personal data can only be shared if it falls into one of the new proposed exemptions. Sharing of data by insurers for the purposes of fraud prevention is NOT currently listed amongst the exemptions. This seems to be a glaring omission and now evidently an oversight. The Association of British Insurers (ABI) and the Financial Services Authority (FSA), amongst others, have been lobbying hard on this very point and seem to have now made some headway. The issue is currently now under review by no less that 5 COMMITTEES in Brussels, all presumably deliberating on what has to be the most obvious decision they will ever have to make – but remember – this is the EU Parliament we are talking about!

During the mass Q&A in the afternoon, Assistant Commissioner David Smith answered a question put by a delegate in a grey suit and Salford accent, on the very point. He admitted that there were several points within the current EU proposals with which the ICO had issues and that this was a typical example. He went on to say that he felt confident that data sharing would always be justified if it was being done for the purposes of the ‘legitimate interests’ and for the ‘prevention and detection of crime’ and that he had not seen anything in the new proposals that changed that.

So, on the face of it, good news but it really is worth keeping an eye on the EU proposals. Wouldn’t we all feel happier if the insurance fraud world was specifically recognised by way of an exemption?

And what does the EU think of secret filming? If the UK were forced to adopt even some of the tough regulations on covert surveillance that exist across much of mainland Europe we would see the biggest upheaval in recent history in our sector. I detected an insatiable appetite from the regulators on the issue of ‘consent’ to processing. The nightmare scenario of having to say to a surveillance subject, “Hi Mr Smith, is it OK if I film you next Tuesday in relation to your claim?” may not be as farcical as it seems. I kid you not!

I also heard one opinion from a senior ICO official that he favoured following the RIPA example, that of seeking Magistrates’ approval if you wish to put somebody under surveillance in non Public Authority scenarios…you have been warned! (Certainly some form of written authorisation for non-RIPA surveillance is favoured by the Office of Surveillance Commissioners and others – Ed)

‘Unmanned’ Surveillance – Too Risky??

There were two excellent breakout sessions at the conference dealing specifically with surveillance. The way covert video evidence was captured, and in particular the justification for filming individuals, was discussed at length. The point was made most emphatically by the ICO officials that they would only condone the covert processing of personal data (i.e. filming) if it was evidently targeted upon the data subject, and of course that the intrusion could be justified.

They then made the further point that such covert data processing must be discriminate and that every attempt must be made to avoid the inadvertent capture of footage of ‘un-connected’ individuals. They went on to say that whilst some ‘collateral intrusion’ was inevitable, the installation of static unmanned covert cameras, vehicle based or otherwise, was absolutely ‘unfair and excessive processing’ and breached basic DPA principles.

I know that some surveillance companies out there openly recommend and market such tactics – suffice to say it is not a route The Brownsword Group will be going down. The thought of maybe two dozen ‘friends and neighbours’ of a legitimate surveillance target bringing privacy actions against our client is a risk we will not be taking – and that’s before the ICO themselves come down like a ton of bricks.

And Finally – Something Else……..The FSA and a ‘Thematic Review’ of the Use Of Private Investigators

I can advise that the FSA Conduct Business Unit have embarked upon what they are calling a ‘Thematic Review’. They are “seeking information from firms about the controls, oversight and due diligence procedures operated by insurance companies regarding the use of private investigators.”

I understand that specific attention is being paid to TCF, the payment of any inducements or incentives, the frequency and success of investigator involvement and also whether the 2007 ABI Guidelines are being adhered to. It is not surveillance specific.

Insurers can expect a visit in the coming months. Brownsword Group have written to the FSA offering help, assistance and guidance in the production of the review, hopefully providing a view from the ethical investigator’s side of the fence.

It is likely that at this stage the FSA will have little first hand knowledge of the vital working relationships that exist between Insurers and investigators. This, and in the light of current suspicious attitudes from certain regulators towards the investigation sector, may suggest that a degree of education may be necessary from insurers and investigators alike.

Hopefully, in the fullness of time, the FSA will interact with us on this and we will be able to explain the value of the investigators support role to the insurance sector.

I hope you found the above of interest, comments and questions welcomed.

Roger J Bescoby is Director of Strategic Development at the Brownsword Group. Visit www.brownsword.com & www.talk-safe.co.uk

Data Protection Update workshop – Analysis of the latest DPA cases, developments and news from the ICO. Our next workshops are in Manchester on the 28th May and in London on the 31st May.

Leveson: What future for Data Protection?

The Leveson Report has finally been published.

The Report recommends that a tougher form of self-regulation backed by legislation should be introduced to uphold press standards. Much has already been written (http://www.bbc.co.uk/news/uk-20543936) and will continue to be written about this central recommendation and whether it is good or bad for democracy and a free press. But amid the furore about whether the Prime Minister should or should not accept the central recommendation, it is easy to forget that the report will also have implications for Data Protection Act and the Information Commissioner.

One of the areas that Lord Justice Leveson was required to consider was ‘the extent to which the current policy and regulatory framework has failed, including in relation to data protection’.

I started writing a blog post on the way back from London, and got as far as the above, when an e mail from the good people at 11KBW (Panopticon Blog) landed in my inbox.

On well if you can’t beat them, read them! Here is their excellent analysis of the DP recommendations of Leveson:

http://www.panopticonblog.com/2012/11/29/leveson-inquiry-report-spotlight-on-proposed-data-protection-reforms/

I was only training round the corner and passed the QE2 centre where LJ Leveson was giving his press conference. Perhaps, I should have camped out overnight to beat the Panopticon Team?

Those Were the Days!

Martin Gibson, of Buckinghamshire County Council, reflects on the challenges facing a Data Protection Officer and how relationships with the Information Commissioner’s Office have changed over the years.