Tag: Privacy

(Probably) The First Group Action For Damages under the Data Protection Act

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In December 2013 a group legal action was settled against the London Borough of Islington following breaches of the Data Protection Act 1998 and the Human Rights Act 1998. Anna Thwaites, partner at Hodge Jones & Allen LLP, and Ruth Brander, counsel from Doughty Street Chambers, acted for the claimants.

Anna explains the background and legal basis for the claims below:

Hodge Jones & Allen LLP & Doughty Street Chambers acted for 14 Claimants in a Group Action against the London Borough of Islington after it leaked their personal data to unauthorised third parties on two separate occasions in 2012.

The First Breach – April 2012

In April 2012, Islington Council sought injunctions against thirteen youths for anti-social behaviour. The injunctions were served on ten of these between 20th and 24th April 2012. On 26th April it became known to the council that personal information regarding residents who had made complaints about anti-social behaviour had been disclosed to the injunctees. An unredacted spread sheet of Anti-Social Behaviour (ASB) Hotline calls and concierge reports had been included. These contained complaints from 50 individuals. In many cases this included the name, telephone number and estate/street name.

The police retrieved seven out of the ten injunction packs issued to the individuals. The police also warned the injunctees that they should not use the information to contact any witness. In the immediate aftermath, there was a police presence on the Andover Estate and some residents moved from their properties to new locations.

An Information Commissioner’s Office (ICO) investigation was instigated and various recommendations made. The Council agreed to a voluntary inspection rather than a monetary fine. 

The Second Breach – 26 June to 14 July 2012

Whilst responding to a Freedom of Information Act request on the website ‘What Do They Know,’ the Council sent an Excel spreadsheet containing details of housing allocations to an organisation called mySociety. The spreadsheet included sensitive personal data on people offered social housing by the Council. This included their name, address, gender, ethnicity, religion, sexuality, relationship status and assessment of housing priority needs. Over 2,400 residents were affected.

Between 26 June and 14 July 2012, there were 7 download requests on this website. It is not possible to know whether any of the people downloading this information accessed the Excel spreadsheets containing this highly personal and sensitive information.

Following this breach there was an ICO investigation and the Council was fined £70,000. This was in addition to the compensation paid to the individual Claimants.

The Claims

We acted for four Claimants affected by the first breach, eight Claimants affected by the second breach and two Claimants affected by both breaches.

The Claimants’ principal claims were for stress, distress and frustration. Some Claimants believed the breach exacerbated existing psychological or psychiatric conditions. Very few Claimants had incurred financial losses arising from the Council’s breaches.

Around April 2013, Letters of Claim were sent to the Council for each Claimant alleging a breach of the Data Protection Act 1998 and Human Rights Act 1998 following a breach of Article 8 ECHR (the right to family and private life).

The parties entered into a limitation standstill agreement in respect of the Human Rights Act claim. Under section 7(5) of the Human Rights Act 1998, a claim must be brought before the end of the period of one year beginning with the date on which the act complained of took place or such longer period as the court considers equitable having regard to all of the circumstances. This was the best way to preserve the Claimants’ position without issuing court proceedings.

At the conclusion of the Council’s Pre-Action Protocol Investigations, they admitted liability in July 2013 for breaches of the Data Protection Act and Article 8 ECHR for all but one of the Claimants. In relation to this Claimant, they advised that the Claimant had been erroneously informed that their data had been breached, when in fact it had not. The Council made Part 36 offers in settlement to all Claimants ranging from £500 to £5,000.

Following settlement negotiations, all claims settled in December 2013 without the need to issue court proceedings. The Claimants were awarded over £43,000 in compensation. The awards ranged from £1,000 to £5,000 depending on how the breach impacted on each Claimant.

As part of the terms of settlement, the Council provided an unreserved apology and provided a detailed letter to each Claimant outlining how the breach happened, how it was discovered, the changes made subsequently and lessons learnt. All of the Claimants’ cases were funded under Conditional Fee Agreements under the pre 1 April 2013 regime.

Thoughts on the Case

It was clear from the outset that there had been a breach of the Data Protection Act, but in order to be entitled to compensation under section 13(2) a Claimant must suffer damage.

The difficulty with these cases is that many of the Claimants were unable to establish a financial loss or a personal injury arising from the Council’s contravention. This issue was not explored in depth during litigation given the Council’s early admission of liability and Part 36 offers in settlement, but the case of Halliday v Creation Consumer Finances [2013] 3 CMLR 4 would have assisted the Claimants on this point.

In this case, the Court was prepared to award nominal damages of £750 for distress to reflect a breach of the Data Protection Act, even if there was insufficient evidence to establish a substantial breach. The Court did not penalise the Claimant for being unable to establish a financial loss arising from the breach. The Claimants’ cases are clearly analogous and this case also provided some helpful guidance on the level of compensation the Courts may award depending on the facts of the case.

Another factor which potentially led to early settlement is that Article 8 ECHR does not have the same requirement as the Data Protection Act to establish ‘damage,’ although there is very little case law on the level of damages the Court may award in this type of case. Traditionally compensation for breaches of the Human Rights Act have been less generous than compensation awarded by the domestic courts.

It would also be interesting to see if the Council’s approach would have changed if the claims were brought on the basis of the Data Protection Act alone or outside the time limits for a Human Rights Act claim.

However, these cases clearly demonstrate that a failure to comply with the Data Protection Act 1998 and/ or Article 8 ECHR will be at a Defendant’s peril. This was an extremely costly mistake for the Council, who failed to learn from their mistakes and breached the Data Protection Act 1998/ Article 8 ECHR not only once but twice in as many months.

It is hoped that, following the ICO investigation and litigation, the same mistakes will not be made again. A clear message has been sent to Public Authorities of the potential consequences of failing to comply with their obligations to safeguard citizen’s personal data. This case also shows how Data Controllers can be held accountable for their actions.

Keep up to date with the latest DP developments by attending our workshops and online courses.

Definition of Personal Data: Durant Revisited

DPA22December 2013 marked the 10-year anniversary of one of Data Protection’s most notorious developments, but it came and went without any great fanfare.

It’s not really surprising that the Information Commissioner’s Office (ICO)  didn’t issue a press release celebrating the Durant judgment’s birthday, as they have been quietly attempting to erase it from history. The result of a long-running dispute between a former Barclays Bank customer and the now defunct Financial Services Authority, Durant v Financial Services Authority [2003] EWCA Civ 1746 was a significant case. The Court of Appeal judges took a sharp look at the definition of personal data, what kinds of manual files are covered by subject access, and the purposes for which subject access can be used – with controversial results. I happened to speak to a former colleague at the ICO a day after Durant was published, and he described the atmosphere as ‘panic’.

Some of Durant is helpful – the judgement proposes that personal data:

“should have the putative data subject as its focus rather than some other person with whom he may have been involved or some transaction or event in which he may have figured or have had an interest”.

Those who have worked on Data Protection for a long time will have encountered the view that the mere mention of a person’s name in an email meant that they were entitled to receive it. Durant torpedoed that notion. Other elements remain contentious – the ICO has never agreed with the assertion in paragraph 27 that subject access should not be used “to obtain discovery of documents that may assist him in litigation or complaints against third parties”, The new ICO Subject Access Code rejects this notion altogether, despite the fact that the lower courts have followed the principle every since. However, Durant’s most irksome element – ‘biographical significance’ – has been put in its place by the same court that invented it.

Mr Durant sought data about the FSA’s investigation into his complaints about Barclays, and his lawyers used an expansive interpretation of ‘personal data’ to stake his claim. The FSA’s focus was on Barclays and its practices, which meant that much of the correspondence Durant wanted was about the bank. He also wanted the names of the FSA staff that had dealt with his complaint. Unfortunately, Auld LJ linked the sensible idea of focus to a notion of ‘biographical significance’ test, stating that personal data must be “information that affects [a person’s] privacy, whether in his personal or family life, business or professional capacity”. This was a complicating and potentially unhelpful development. Focus makes sense – an email in which your name is mentioned in passing may well not be about you. But biographical significance is an unnecessary and restrictive innovation.

For example, when looking at a CCTV image with a person in the centre and bystanders in the background, the idea of ‘focus’ allows you to distinguish between the obvious subject of the image and the others. But asking whether the image is biographically significant raises the possibility that a clear picture of a living, identifiable person isn’t actually personal data if it has no private connotations. Is an image of me walking down the street biographically significant? Many have adopted biographical significance as a rule of thumb, a test to apply whenever the question of personal data was raised. In the public sector, it could mean that data about people that wasn’t biographically significant could be disclosed under the Freedom of Information Act 2000 (FOI) because it wasn’t technically ‘personal data’. In the private sector, anything not ‘biographically significant’ could be legally invisible, subject to none of Data Protection’s requirements.

The ICO’s approach to Durant – after the alleged panic subsided – was initially mixed, but for quite a few years it has been consistent. As some sort of riposte to Durant, in 2007 they published technical guidance on the meaning of ‘personal data’ called ‘Determining what is personal data’ – rather than Durant’s narrow, privacy-piercing interpretation. There are few references to Durant anywhere in the ICO’s output, but the technical guidance makes clear that testing ‘biographical significance’ is far from being an automatic or necessary step – it is for borderline cases when context and common sense don’t get you to the answer.

Many data controllers have been tempted to use Durant as a way of shrinking Data Protection down to a comfortable size. Indeed, when considering FOI cases involving personal data, the First Tier Tribunal appears to see the test as an inherent part of the decision, and biographical significance is often a feature of FOISA decisions by the Scottish Information Commissioner. Nevertheless, the ICO’s 2007 interpretation of Durant is logical. LJ Auld himself said that biographical significance was a notion “that may be of assistance” rather than a fundamental key to understanding personal data. Just as important was the balance provided by Buxton LJ, who noted at the end of the judgement that the tests were “a clear guide in borderline cases”. The Durant case was – in effect – about Mr Durant’s case, and didn’t change Data Protection as much as some have suggested.

For confirmation of this, fast-forward to Edem v IC & Financial Services Authority [2014] EWCA Civ 92, a Court of Appeal decision on a different case concerning another unhappy FSA (now the Financial Conduct Authority) complainant published this month. Mr Durant wanted to use Data Protection subject access to obtain his own data, and everything connected with it. Mr Edem wanted to use FOI to find out data about other people – specifically, the names and job titles of the junior staff who had dealt with his complaint. The FSA and Information Commissioner agreed that the data was personal, and that disclosure was unfair. So far, so uncontroversial. A spanner was thrown into the works by the First Tier Tribunal, to which Mr Edem appealed the ICO Decision. Using the biographical significance test, the FTT found that names and job titles were not biographically significant, and the focus of the information sought by Mr Edem was the investigation. The Edem FTT case was like a hall of mirrors, distorting and reflecting Durant to the extent that a type of information Mr Durant couldn’t get from the FSA under DP was now available to Mr Edem under FOI.

An appeal to the Upper Tribunal restored the ICO position, and so Mr Edem went to the Court of Appeal. A few cases – mainly resulting from appeals on FOISA decisions – have gone high enough in the UK court system to challenge Durant, but all skirted Durant itself. The Edem case was different – Durant and biographical significance had to be looked at head-on. The result is good news for common sense and data subjects, but bad for anyone who wants to finagle their way out of an awkward subject access request.

Paragraph 17 of the Edem Court of Appeal case isn’t the death knell for Durant, but it’s a healthy and heavy dose of context:

“The First Tier Tribunal were wrong to apply Auld LJ’s “notions” in this case”.

When trying to work out whether a person’s name is personal data, the Court says that biographical significance is irrelevant. The question is whether the data identifies a living individual, and without any complicating or contradictory factors, the data is all you need. My name is Tim Turner, and while that’s not enough to find the bearded Act Now Trainer on the internet (there are country singers and ice hockey players and the man who played the Invisible Man in TV in the 1950s to sort through), it’s easily enough to locate information about me in any of the places I have worked. The Court of Appeal in Edem wholly endorses the ICO view of biographical significance as an occasional add-on, and uses Buxton LJ’s comments from Durant itself to back up that approach.

If it was wrong to overplay the effect of Durant, it’s equally wrong to overplay Edem. For the public sector, Durant was always blunted by the onset of FOI – if you successfully argued that data wasn’t personal data about the subject access applicant, they could always ask for it under FOI. The new judgment doesn’t give new rights to data subjects or expand Data Protection’s reach. A person who wants to use Data Protection to get access to large amounts of information to which they have some loose or stretched connection will come to grief just as Mr Durant did. But the Edem case does restore logic – data that identifies a person, even in a relatively benign or innocuous way – is personal data. The Eight DP Principles apply. Even when at work and doing mundane professional tasks, the DPA is likely to be engaged. An apparent loophole has not been closed – the Edem case simply confirms that it was a lot smaller than it may have appeared. The ICO approach is vindicated, and both the First Tier Tribunal and bloody-minded data controllers may have to think again.

Tim Turner is one of Act Now’s well-known data protection experts. He will be considering this and other latest Data Protection developments in his forthcoming DP Update workshops . Read more of Tim’s expert analysis on his blog. Readers wanting to see how the Durant case has been applied in previous decisions should read Ezsias v The Welsh Ministers (2007).

The shortest Data Protection Policy in the world?

shortestYoungest son has been looking for work and was interviewed for some warehouse job with a big name in retail and had this thrust under his nose while being interviewed. Luckily the modern scourge of camera phone proved very useful at this point and he showed me this image when he returned home. Is it a Policy? Who is the data controller? Why do applicants have to sign to agree that their application form goes to a prospective employer? Why do they need medical details?  The questions go on and on.  Contradiction in the final paragraph.  And they’ve squeezed all this into just over 50 words. Is it possible to write a Data Protection Policy that will fit into 140 characters? Who writes this stuff?

The Law of Employee Surveillance

RIPA4Decreasing public sector budgets and increasingly affordable technology mean that more and more employers are turning to surveillance to catch errant or work shy employees. But this area is a legal minefield. Mistakes can end up with adverse headlines in the media or worse still legal action. In August, West Yorkshire Fire Service was criticized in the papers when a 999 operator, who was on sick leave, found a GPS tracker planted on her car by a private detective hired by her bosses.

A public sector employer wanting to conduct lawful staff surveillance must first ask the question, which legislation applies? If the surveillance involves covert techniques or equipment, it is easy to assume that Part 2 of the Regulation of Investigatory Powers Act 2000 (“RIPA”) applies and that the surveillance must be the subject of an written authorisation by a senior officer and, in the case of a local authority employer, Magistrates’ approval. However, the Investigatory Powers Tribunal has ruled in the past that not all covert surveillance of employees is regulated by RIPA.

In C v The Police and the Secretary of State for the Home Department (14th November 2006, No: IPT/03/32/H), a former police sergeant (C), having retired in 2001, made a claim for a back injury he sustained after tripping on a carpet in a police station. He was awarded damages and an enhanced pension due to the injuries. In 2002, the police instructed a firm of private detectives to observe C to see if he was doing anything that was inconsistent with his claimed injuries. Video footage showed him mowing the lawn. C sued the police claiming that they had carried out Directed Surveillance under RIPA without an authorisation. The Tribunal first had to decide if it had jurisdiction to hear the claim. The case turned on the interpretation of the first limb of the definition of Directed Surveillance i.e. was the surveillance “for the purposes of a specific investigation or a specific operation?”

The Tribunal ruled that this was not the type of surveillance that RIPA was enacted to regulate. It made the distinction between the ordinary functions and the core functions of a public authority:

“The specific core functions and the regulatory powers which go with them are identifiable as distinct from the ordinary functions of public authorities shared by all authorities, such as the employment of staff and the making of contracts. There is no real reason why the performance of the ordinary functions of a public authority should fall within the RIPA regime, which is concerned with the regulation of certain investigatory powers, not with the regulation of employees or of suppliers and service providers.”

The Tribunal also stated that it would not be right to apply RIPA to such surveillance for a number of reasons:

  1. RIPA does not cover all public authorities, and there was no sense in police employee surveillance being conducted on a different legal footing than, for example, the Treasury, which does not have the same surveillance rights under RIPA.
  2. The Tribunal has very restrictive rules about evidence, openness and rights of appeal. The effect of these would lead to unfairness for employees of RIPA authorities when challenging their employers’ surveillance as compared to those who were employed by non RIPA authorities.

This case suggests that, even where employee surveillance is being carried out for the purpose of preventing or detecting crime, the question has to be; is it for a core function linked to one of the authority’s regulatory functions? In the local authority context this would include, amongst others, trading standards, environmental heath and licensing. If the surveillance is not being done for one of these purposes it will not be Directed Surveillance and consequently will not be regulated by RIPA.

Of course just because RIPA may not apply, it does not mean that the employer can do what it likes. Whatever type of surveillance is conducted, the right to privacy, under Article 8 of the European Convention on Human Rights, protects employees within the work environment.  This means that the surveillance must be carried out in a manner that is in accordance with the law and is necessary and proportionate. There have been a number of cases where employers have been criticised by the courts for failing to take account of the human rights issues when doing surveillance of employees e.g. Copland v UK (3rd April 2007 ECHR) concerning communications surveillance and Jones v Warwick University ((2003) 3 All ER 760) concerning a claim for personal injury. Compliance with the Data Protection Act 1998 (DPA) will be evidence that the surveillance has also been done in compliance with Article 8.

All employers, be they public or private sector, have to comply with the DPA when doing surveillance, as they will be gathering and using personal information about living individuals. The Information Commissioner has published the Data Protection Employment Practices Code, which sets out rules to be followed when dealing with employees’ personal data.

Part 3 of the code covers all types of employee surveillance from video monitoring and vehicle tracking to email and Internet surveillance. Indeed those public authorities who are doing surveillance of their employees which now, in the light of the above Tribunal case, cannot be authorised under RIPA also have to pay special attention to the code. Whilst the code is not law, it can be taken into account by the Information Commissioner and the courts in deciding whether the DPA has been complied with.

One of the other main recommendations of the code is that senior management should normally authorise any covert surveillance of employees. They should satisfy themselves that there are grounds for suspecting criminal activity or equivalent malpractice. They should carry out an impact assessment and consider whether the surveillance is necessary and proportionate to what is sought to be achieved i.e. the same considerations that public sector employers subject to RIPA would have to consider when doing a RIPA authorisation. This assessment is best done in writing using a “Non-RIPA” surveillance form (Our RIPA Policy and Procedures Toolkit contains such a form).

If covert surveillance of an employee results in his/her dismissal, the matter will usually end up before the Employment Tribunal in the form of unfair dismissal proceedings. Here the Tribunal will also have to consider whether evidence has been gathered fairly and lawfully. In City And County Of Swansea v Gayle UKEAT 0501_12_1604 (16 April 2013) Swansea Council conducted covert video surveillance on the claimant, when he was for good reason suspected of playing squash during work time, whilst claiming payment for being at work at the time.  The surveillance confirmed he was seen at the sports centre on a succession of Thursdays when he should have been at work.

The Employment Tribunal upheld a claim for unfair dismissal (though awarding nil compensation, for contributory conduct) because of the Tribunal’s distaste for the employer’s use of covert surveillance. Its view was that Article 8 (right to privacy) was engaged and broken in doing so. It took account of the council’s lack of awareness of its obligations under the DPA and the Code.

These views were rejected on appeal to the Employment Appeal Tribunal. The appeal was allowed with a substituted finding that the dismissal was not unfair. The Tribunal did not accept that here there was any breach of Article 8(1) so as to require the Tribunal to consider the requirements of 8(2) at all.  If, however, the Tribunal had done so it would have been bound to consider the legitimate aim which the Council claimed to have.  Here one of two such aims might have been identified.  The first was the prevention of crime, the second the protection of the rights and freedoms of others, the “others” here being the employers whose money was at stake and who had contractual rights in agreement with the claimant that he would behave in a way in which as it happened he did not.

This is an interesting case for employers. Dismissals will not necessarily be unfair when covert surveillance is used as part of the dismissal process. Employees acting fraudulently on employer’s time cannot expect their actions to be kept private from the employer. However, employers would be well advised to tread with caution. Following the correct procedures and being mindful of their obligations under the DPA (as well as Human Rights) will inevitably put an employer in a better position.

Employee surveillance may not always engage RIPA. However data protection and human rights laws will always have to be carefully considered. In cases of surveillance of staff e-mail and internet usage Section 4 of RIPA and the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 will also need to be considered. For more on the latter please see our online training course (Email and Internet Monitoring: How to do it lawfully).

Act Now can help you get to grips with this difficult area. Please see our full program of surveillance law courses which can also be customised and delivered at your premises. If you want a quick update try our forthcoming webinars.

Listen to Ibrahim Hasan’s interview on BBC File on Four on Secrecy and Surveillance: of http://www.bbc.co.uk/programmes/b03bdsyk

Data Sharing Consultation – Do we need new laws?

The Law Commission has opened a consultation on the law around sharing of personal information between public sector organisations. Law Commissioner Frances Patterson QC says:

“It could be that more data sharing would improve public services but, if that is so, we need to understand why data is not being shared.  Is there a good reason to prevent data sharing?  Or is the law an unnecessary obstacle?  Are there other reasons stopping appropriate data sharing?  These are the questions we want to answer in this consultation.”

The legalitiecanstockphoto1632442s of data sharing is a subject which often confuses public sector officials. Local authorities, in particular, are often stumped by the “To Share or Not to Share” question, even if the sharing is for very good reasons (e.g. child protection or crime prevention). In some cases, even internal departments have felt constrained from updating each other about a change of a service user’s address.

More often than not, the Data Protection Act 1998 (DPA) is made the scapegoat for officials’ failure to fully understand the law. It is wrongly perceived as a barrier to data sharing despite offering a range of justifications (e.g. consent, legal obligation, protecting vital interests etc. (Schedule 2)).

Many attempts have been made to resolve this “problem”. In May 2011, the Information Commissioner published a statutory Code of Practice on data sharing. The code explains how the DPA applies to the sharing of personal data both within and outside an organisation. It provides practical advice to the public, private and third sectors, and covers systematic data sharing arrangements as well as one off requests for information. Under Section 52 of the DPA, the code can be used as evidence in any legal proceedings and can be taken into account by the courts and the Commissioner himself when considering any issue.

Despite the clear guidance in the code, the Government has sometimes toyed with the idea of new laws. Last year, according a story in the Guardian newspaper, proposals were to be published by the Cabinet Office minister, Francis Maude, which would make it “easier” for government and public-sector organisations to share confidential information supplied by the public:

“In May, we will publish proposals that will make data sharing easier – and, in particular, we will revisit the recommendations of the Walport-Thomas Review that would make it easier for legitimate requests for data sharing to be agreed with a view to considering their implementation,” said Maude, adding that current barriers between databases made it difficult for public sector workers to access relevant information.

“It’s clearly wrong to have social workers, doctors, dentists, Job Centres, the police all working in isolation on the same problems.”

The Guardian reported that the proposals are expected to include fast-track procedures for ministers to license the sharing of data in areas where it is currently prohibited, subject to privacy safeguards.  I could not find the proposals on the web. Anybody know whether they were ever published?

Confusion around data sharing continues to reign! The tragic case of Daniel Pelka is one example. The recent report into the four-year-old’s death, published by the independent Coventry Safeguarding Children Board identified a number of missed opportunities where professionals across a number of agencies should have done more to protect Daniel. Amongst other things, it concluded that the sharing of information and communications between all agencies was not robust enough.

Ill informed comments about the current law (especially the DPA) do not help. In a recent Daily Telegraph article by Michael Gove, the Education Minister claimed that, whilst tying to understand the underlying causes of child exploitation, he discovered that OFSTED “was prevented by “data protection” rules, “child protection” concerns and other bewildering regulations from sharing that data with us, or even with the police.” There is nothing in the DPA which prevents this. Don’t just take my word for it. Read the Information Commissioner’s riposte to the learned Mr Gove.

Do we really need new laws on data sharing or a better awareness of the existing ones? My view is that the current law is adequate to regulate yet allow responsible data sharing. The DPA and the Data Sharing Code need to be properly understood. They can be a tool allowing responsible data sharing. Most public sector data sharing will be lawful if organisations comply with the Eight Data Protection Principles; particularly the First Principle which requires information to be processed fairly and lawfully. There are also numerous exemptions in the Act including where sharing is required for the purpose of prevention or detection of crime (section 29).

The Law Commission consultation runs until 16 December 2013 and the paper may be accessed at: http://lawcommission.justice.gov.uk/. Responses can be emailed to data.sharing@lawcommission.gsi.gov.uk or sent by post.

More Information: Read our article for a full explanation of the ICO Data Sharing Code or watch this free webinar. We also run full day Multi Agency Information Sharing workshops.

The 2013 Surveillance Commissioner Report – Key Points

RIPA22The Chief Surveillance Commissioner published his 2013 annual report (covering the period from 1st April 2012 to 31st March 2013) on 18th July 2013. It is important reading for those public authorities who conduct surveillance under Part 2 of the Regulation of Investigatory Powers Act 2000 (RIPA).

The report details statistics relating to the use of Part 2 of RIPA by public authorities and information about how the Office of the Surveillance Commissioner (OSC) conducts its oversight role. Non-law enforcement agencies (including councils) authorised Directed Surveillance on 5,827 occasions. This continues a downward trend over the last few years.

The report highlights a number of important issues some of which are listed below:

  • Common errors by RIPA authorities include miscommunication or failure to communicate the details of an authorisation; failure to conduct thorough reviews, renewals or cancellations; ignorance on the part of officers; or poor administration or processes.
  • The Commissioner says that all public authorities have struggled with the use of the Internet for investigations, particularly social networking sites. At paragraph 5.7 he advises caution on conflating the offline word with the online world. There may be cases where RIPA authorisation is required when doing research about a person on the Internet. He goes on to say, “… it is important to bear in mind that it is not always possible to give a definitive answer as to whether a particular activity requires authorisation: facts are infinitely variable. Where there is doubt authorisation is prudent.”  Act Now has developed a course on E-Crime and Social Networking Sites which examines all the relevant RIPA and wider legal issues.
  • Too many tactics requested by investigating officers are unused. Authorising officers and Senior Responsible Officers should monitor whether applicants are lazily requesting tactics out of habit rather than necessity.
  • Too many cancellations provide an insufficient record of surveillance actually conducted and the details of collateral intrusion. Rarely does guidance on the retention or destruction of product go beyond an inadequate reference to policy. It is vital that surveillance product that does not match the objectives stated in the authorisation is not retained on databases.
  • At paragraph 5.5, the Commissioner reiterates his view that RIPA is permissive legislation and there may be occasions where surveillance outside the scope of RIPA may be required. He points to the recent IPT decision in BA and others v Cleveland Police (IPT/11/129/CH). This is in keeping with Ibrahim Hasan’s view as explained on this blog.
  • Where there is an invasion of privacy and RIPA does not apply, due to all conditions not being met, then the Commissioner recommends use of a similar written authorisation mechanism where Article 8 issues (privacy) are considered.
  • The Commissioner also considers the changes, which took effect on  1st November 2012; namely magistrates’ approval for council surveillance and a new six month threshold test for Directed Surveillance.  On the whole they are working well. There were 142 approval requests made to a Magistrate in the reporting period of which only two were rejected.
  • Finally the Commissioner fires a shot across the bows of those authorities who drag their feet in accepting his recommendations. At paragraph 5.18 he says, “I expect the recommendations of my reports to be followed whether or not individual officers agree with them. Continued failure to do so – especially on the ground that current practices have been unchallenged in court proceedings – may result in publication of my guidance or recommendations to a wider audience.”

Now is the time to consider refresher training for RIPA investigators and authorisers. Please see our full program of RIPA Courses which have been revised to take account of all the latest developments. We can also deliver these courses at your premises, tailored to the audience. Finally, if you want to avoid re inventing the wheel, our RIPA Policy and Procedures Toolkit gives you a standard policy as well as forms (with detailed notes to assist completion) for authorising RIPA and non-RIPA surveillance. Over 200 different organisations have bought this document (available on CD as well).

Disclosure of Staff Names under FOI

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When considering request for information under the Freedom of Information Act 2000(FOI) public authorities often face a dilemma about disclosing names of staff.

Names are generally considered to be personal data, being information relating to living identifiable individuals (as defined by the Data Protection Act 1998 (DPA)). (Although one Information Tribunal (as it was known then) decision, Harcup v Information Commissioner and Yorkshire Forward (EA/2007/0058), ruled they are not. (See episode 11 of my FOI Podcasts for a full discussion of this decision). Therefore the exemption under section 40(2) (third party personal data) will have to be considered.

For this exemption to be engaged a public authority must show that disclosure of the name(s) would breach one of theData Protection Principles. Most cases in this area focus on First Principle and so public authorities have to ask, would disclosure be fair and lawful? They also have to justify the disclosure by reference to one of the conditions in Schedule 2 of the DPA (as well as Schedule 3  in the case of sensitive personal data). In the absence of consent, most authorities end up considering whether disclosure is necessary for the applicant to pursue a legitimate interest and, even if it is, whether the disclosure is unwarranted due to the harm caused to the subject(s) (condition 6 of Schedule 2)?

The seniority of the staff, whose names are being requested, will of course be a key factor in deciding whether disclosure is fair. The first Information Tribunal decision on this issue, back in 2007, (Ministry of Defence v Information Commissioner and Rob Evans (EA/2006/0027)) concerned a request made by a journalist for a staff directory which included the names and contact details of individuals working for the Defence Exports Services Organisation. The MoD refused to disclose the information citing, amongst others, the exemption under section 40(2).

The Tribunal ruled that that the MoD could only withhold names of staff if they are particularly junior (below Civil Service B2 Level), not immediately responsible for the requested information and their name is not already available elsewhere (or would be expected to be through their performing a public-facing duty); or there is a clear and demonstrable threat to that individual’s health and safety if their name is made public.

As is clear from the MoD decision, seniority is just one factor to be taken into account. Public authorities should avoid the blanket non-disclosure of the names of all officers below a certain level of seniority. When it comes to the disclosure of names, what matters is what work the individuals are doing, rather than their seniority or grade. If a person is in a front facing role and his/her name is already in the public domain, then it will be difficult to withhold it.

In 2008 another Tribunal decision (The Department for Business, Enterprise and Regulatory Reform v Information Commissioner and Friend of the Earth (EA/2007/0072) examined whether names of private sector employees attending a meeting should be disclosed as well as those of civil servants. The request was for information about meetings and correspondence between Ministers and senior civil servants in the Department of Business, Enterprise and Regulatory Reform and employees from the Confederation of British Industry. Some of the documents relevant to the request included references to individuals who had attended such meetings as spokespersons or as note takers or bystanders. The Tribunal summarised the position as follows:

a. Senior officials of both the government department and lobbyist attending meetings and communicating with each other can have no expectation of privacy. The officials to whom this principle applies should not be restricted to the senior spokesperson for the organisation. It should also relate to any spokesperson.

b. Recorded comments attributed to such officials at meetings should similarly carry no expectation of privacy.

d. In contrast junior officials, who are not spokespersons for their organisations or merely attend meetings as observers or stand-ins for more senior officials, do have an expectation of privacy. This means that there may be circumstances where junior officials who act as spokespersons for their organisations are unable to rely on an expectation of privacy;

e. The question as to whether a person is acting in a senior or junior capacity or as a spokesperson is one to be determined on the facts of each case.

f. The extent of the disclosure of additional information in relation to a named official will be subject to usual test i.e. is disclosure necessary for the applicant to pursue a legitimate interest, and, even if it is, is the disclosure unwarranted due to the harm caused to the individuals by disclosure? This will largely depend on whether the additional information relates to the person’s business or professional capacity or is of a personal nature unrelated to business.

In January 2011, the First Tier Tribunal (Information Rights) considered disclosure of names in Dun v IC and National Audit Office (EA/2010/0060). The disputed information concerned the NAO’s enquiry into the FCO’s handling of employee grievances of a whistleblowing variety. The Tribunal was clear that no blanket policy should apply, and that fairness depends on the particular responsibilities and information with which the case is concerned. This decision is discussed in detail in episode 21 of my FOI Podcasts.

Where there is a risk to staff safety if their names are disclosed, then the public authority will be right to err on the side of caution. In Wild v IC and Chief Constable of Hampshire Constabulary (EA/2010/0132) the Appellant requested the dates of pre-hunt meetings in the last five years and the names of police officers attending pre-hunt meetings with organisers of the Isle of Wight Hunt. The Police responded, providing dates, but refusing to disclose the names of the officers in attendance.

The Commissioner considered the section 40(2) exemption and concluded that the disclosure would result in a breach of the First Data Protection principle.  He accepted that the disclosure may lead to the harassment of the officers identified and consequently the disclosure would be unfair to those officers. The Tribunal upheld the Commissioner’s decision.

Don’t forget condition 6 of schedule 2 of the DPA. A public authority will have to consider whether disclosure of a name is necessary for the applicant to pursue a legitimate interest, and, even if it is, whether the disclosure is unwarranted due to the harm caused to the individual by the disclosure.

A more recent Tribunal decision (January 2013), McFerran v IC (EA/2012/0030) involved a police search of a property owned by Shropshire County Council. At the police’s request, two junior council officers were present, but they had not been involved in any of the decision-making. The requester wanted the names of the council officers as well as their immediate superior. The council refused, relying on s. 40(2).

The Commissioner ordered disclosure of the name of the more senior officer, but not of the two juniors. The Tribunal agreed with this decision and dismissed the requester’s appeal, observing that:

“although… there is clearly a legitimate public interest in transparency of activity by public authorities, which impinges on the personal freedom of householders, there is insufficient information provided to add significant weight to the general public interest in transparency in public affairs. The Appellant has not satisfied us, either, that his attempts to have the matter investigated are being thwarted by the absence of the names of the individuals in question. If there is sufficient information about the event to interest those responsible for an investigation the absence of names will not deter them.”

This decision illustrates that, when it comes to junior officials, the requestor will have to show that there is legitimate interest in knowing the names of officers where they are junior. A general argument about openness and transparency will not suffice.

In Armit v IC and Home Office (EA/2012/0041) the UKBA redacted the names of the officials in a document entitled ‘Tourist Selection Indicators and Selection Techniques’ which fell within the scope of the request. The Tribunal agreed with this approach, taking account of the requester’s failure to identify a legitimate interest in public disclosure of the names of those officials:

“We do not accept the argument that the officials would not have expected their names within the document to be made public and were not given compelling evidence of this. We were given no information as to their specific grading but they were described in the document as ‘lead contributer’ and ‘lead postholder’. They clearly have some responsibility in relation to the work.  We were given no compelling evidence that disclosing their names would result in victimisation, insult or any form of danger.  However, we do accept that the officials would prefer not to have their names identified and that might in itself represent a certain right and freedom or legitimate interests in itself. In any event, to process personal data, it needs to be necessary to pursue the purposes of legitimate interests pursued by others.  In this case, we do not find that the Appellant has shown any legitimate interest in the names of the officials being disclosed to the public under FOIA. We conclude that the information is therefore exempt from disclosure.”

Another recent Tribunal decision on the disclosure of names is Roberts v IC and Dyfed Powys Police Authority (EA/2012/0032).

The issue of disclosure of names pursuant to an FOI request is a difficult one. As can be seen from this discussion of Tribunal decisions, a number of different factors have to be weighed in the balance. A blanket approach will not work.

Whilst on the subject of names, does an FOI requestor have to give his/her real name? Read the answer here  as well as a really bad joke!

Ibrahim Hasan will be discussing this and other recent FOI decisions in the FOI Update workshop  on 13th March 2013.

Do you want an international recognised qualification in FOI?                           The ISEB Certificate in Freedom of Information  starts in Birmingham on 26th March 2013.

Proposed EU Data Protection Regulation and Research

Man Reading Book and Sitting on Bookshelf in LibraryDavid Erdos believes a bid to tighten European data protection will have a chilling impact on social science and humanities research.  He writes:

Even with the advent of Web 2.0, data protection law is still often seen as technical and only narrowly applicable. Technical abstruseness aside (and data protection’s reputation here is certainly deserved), this understanding could not be more wrong. The existing European data protection framework really is breathtaking in scope. It applies to anything done electronically with any information about an identified or identifiable person – possibly including the dead. According to the European Union, even innocuous details in the public domain are protected (perhaps even the title of an author’s book). Moreover, if the information reveals the particulars of, for example, a person’s ethnic origin, political opinions, religious belief, trade union membership, health or criminality, then it is classed as “sensitive” and subject to even tighter controls. The European data protection framework is not only broad but often onerous. Barring specific exceptions (including a liberal one that can be invoked for journalism, literature and the arts), there is a presumption that individuals will be informed about the processing of data about them and given a right to object, that the processing of “sensitive” personal information will be banned and that no personal information will be transferred outside the European Economic Area without “adequate protection”.

So the popular perception of data protection is woefully inaccurate – which leads to a radical underestimation of the threat these regulations pose to the enjoyment of other fundamental rights and the pursuit of legitimate activities. Nowhere is this more the case than in social science and humanities research. Since the advent of the EU’s framework in the 1990s, researchers have witnessed dramatic restrictions on their freedom to use “sensitive” data and to deploy covert methods. Coupled with the growth of sometimes intrusive “ethical review” policies, the barriers and burdens placed in the way of even ordinary, innocuous, yet socially beneficial research and on researchers have become considerable.

It might have been hoped that the proposed EU Data Protection Regulation would provide an opportunity to reverse this. But if the European Parliament’s recently published draft amendments are anything to go by, the converse is true.

Contunue reading here.

This article was originally published in the 14-20 February 2013 edition of Times Higher Education and is published with the author’s permission. You can also read it on the Constitutional Law website.

The draft EU DP Regulation will be examined in our forthcoming 1 hour Data Protection Update Webinar : http://www.actnow.org.uk/courses/930

Leveson: What future for Data Protection?

LevesonThe 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?

Privacy Conference – Call for Papers

The Fifth Northumbria Information Rights Conference will take place on Wednesday 1 May 2013 at the Centre for Life, Newcastle Upon Tyne, UK.   The theme of the conference will be “Changing notions of privacy”.

The aim of the conference is both to explore developing understandings of privacy, and the tensions that exist between privacy, openness and freedom of expression. The following topics will be explored within the overall theme, and papers will be grouped for presentation accordingly:

  • What is privacy?
  • Privacy v freedom of expression
  • Technology and the challenges of protecting privacy
  • Privacy in a commercial context
  • Privacy and the Freedom of Information Act 2000
  • Privacy or openness
  • Privacy and the Data Protection Act 1998

The university will also consider abstracts which do not fall within these themes but which are nonetheless relevant to the overall theme.

This call is open to academics, postgraduate students and practitioners from all disciplines, but particularly law, politics, information science and records management. Ibrahim Hasan presented a paper to this conference last year examining the Government’s proposals to change RIPA and whether they were a sledgehammer to crack a nut. We would urge our readers to get involved.

Those interested in presenting a paper are invited to submit abstracts to the conference administrator Maureen Cooke: email maureen.cooke@northumbria.ac.uk. Abstracts should be submitted by 7th December 2012. They should not exceed 300 words. Submission must be by Word document e-mail attachment at the email address shown above and should include, in addition to the abstract, your title, name and organisation/institutional affiliation and your email address for correspondence.

All proposals will be reviewed, and successful applicants will be notified at the latest by 21st December 2012. Please contact maureen.cooke@northumbria.ac.uk for any general enquiries about the conference or telephone 0191 243 7597.