Dark times on the Wirral, as confidential memos about web filtering fly around, suggesting skullduggery on the corridors of Council power. The headlines are remarkable: “Confidential memo tells shocked Wirral councillors their emails are being read by town hall bosses“, which would be quite a thing if it was true. Following the receipt of offensive emails about Hillsborough, the Chief Executive of Wirral Council suggested that the Council could filter the emails out so that councillors would not receive them. The opposition members worked themselves up into a lather, with one, Councillor Chris Blakeley, declaring: “I think it is outrageous that the council should determine which emails we should receive”. Another, Councillor Lesley Rennie opined “My colleagues and I are absolutely appalled that there could have even been a suggestion that emails from the public could be considered for filtering“.
At the risk of starting another barney in the comments, I don’t think the Council was suggesting anything inappropriate. Whatever you think of Wirral Council (feel free not to tell me), I think it’s likely that the Council was simply offering to block offensive emails, rather than making decisions about which emails Councillors receive. The Chief Executive stated that he had received complaints about the emails, so clearly felt that some kind of response was required. As feelings across Merseyside are still understandably raw over Hillsborough, even if the Council response was inelegant, I can see why the offer was made.
However, the Councillors’ reaction and some of the comments on the Wirral Globe’s story (the commenter ‘2040TIM’ sounds like he knows what he’s talking about), raise an interesting question that I suspect many councils and most councillors have not considered. If you are not a Data Protection nerd or a dedicated council watcher, look away now.
Councillors wear up to three hats in the normal course of their activities. As participants in Council Committees and decision-making, they are part of the Council. For Data Protection purposes, they are covered by the Council’s DP notification and any incident or breach involving them would be the Council’s problem. Hat number 2 comes with membership of a political party. They may sometimes receive personal data from their party for campaigning purposes. In this scenario, the party is responsible for Data Protection. The strangest hat is the one they wear as constituency representatives. Here, neither the council nor the party is responsible. The Councillor is a Data Controller in their own right.
Much of the controversy about Councillors and Data Protection revolves around the technical issue of notification (still often called ‘registration’, despite that term belonging to the 1984 Act), and in particular who pays for it. Some councillors notify, some don’t. One Wirral blogger was told by a councillor that notification was ‘a load of tosh‘, which is an odd way for an elected representative to describe a legal requirement. Some councils pay for all of their councillor’s notifications, some don’t. However, despite the fact that numerous councillors across the UK remain without a notification, and despite the fact that the ICO has prosecuted estate agents, bar owners, solicitors and hairdressers for non-notification, no councillor in the UK has ever been prosecuted for non-notification.
The reason for this is probably that by prosecuting an errant elected member, the ICO would be crossing Eric Pickles, the Secretary of State for Communities and Local Government and an opponent of the ‘red tape’ that member notification represents. In 2011, Pickles told Conservative Home that notification for members was a ‘tax on volunteering’. In 2013, he proposed amending the DPA to exempt parish and town councillors from notification altogether (which is a good idea) and allowing councils to make a single payment for all Councillors’ notifications, which is unnecessary given that since the middle of the last decade, the ICO has accepted notification forms for all of a council’s members in one go with a single payment. I know this, because I used to do the notifications for my council’s members.
But this is all a red herring. Notification is an administrative tick-box. Under the 1984 Act, if you processed data electronically, you were covered by the Act and you had to register. If you didn’t process data electronically, you didn’t have to register and you didn’t have to comply. Under the 1998 Act, you have to comply regardless of whether you notify. If you’re exempt from notification, you still have to comply with all other aspects of the 1998 Act. If you refuse to notify, you’re committing an offence, but you still have to comply with all other aspects of the 1998 Act.
Just before Christmas, another Northern Council – Craven Council in the Yorkshire Dales – had a councillor / Data Protection controversy. The Council proposed rolling out iPads to its elected members as part of an upgrade to its IT security. Some councillors objected, and one Independent member was reported as offering “to sign up as his own data handler“, in other words, he was offering to notify as a data controller in order to avoid having the iPad. And so we come to the punchline. The Councillor was already a Data Controller whether he liked it or not. All councillors have to ensure that they are compliant with the DPA for the areas not covered by the Council or their party. Notification – and who pays the £35 – is just about the least significant aspect of this process.
For one thing, Councillors are Data Controllers for any equipment, any email account, any electronic system that they use to communicate with their constituents. The Council is their Data Processor in this context. Buried deep in the back of the Data Protection Act are surprisingly specific requirements for the relationship between a Data Controller and Data Processor – there must be a contract made or evidenced in writing, security guarantees given by the processor (the Council) to the Controller (the Councillor), and a reasonable check that the contract is being complied with. In other words, if the Wirral Councillors up in arms about what may or not be happening to their emails have not obtained a written contract from Wirral, ensuring that Wirral will act only on their instructions when handling their constituency correspondence, the Councillors are in breach of the Data Protection Act. The Council – as a data processor – is not.
It goes further. Councillors should clearly inform their constituents about the way in which their data is used. They should respond to subject access requests. The Wirral Councillors are upset about what they believe is happening to their Wirral.gov.uk email addresses, but many Councillors use Hotmail or Yahoo mail for constituency business, or at the very least have all of their Council emails auto-forwarded to an outside account. This carries both security risks that might breach the 7th DP principle, but also raises the spectre of the 8th Principle, which governs how to transfer information outside the European Economic Area (many web-based email providers use servers outside Europe).
Many senior Council officers and IT and DP specialists will weep at the thought, and I can think of one or two who will give me a smack for bringing it up. But Councils cannot dictate to their Councillors. It is clearly logical for Councillors to use systems and kit provided to them by the Council, but ultimately, they are responsible for a big slice of the data that they use as part of their work and it’s their decision. The Council is a processor, a service provider. Sticking with the robust corporate system is a reasonable idea, but they can work outside of it and if they do, Councillors are wholly responsible for what happens. In the meantime, any Councillor planning to kick up a fuss about emails or iPads or anything else should remember that if something goes wrong, the Council has a get-out-of-jail-free card for non-Council business. Perhaps they should be more shocked about that.