Any last requests?

A month ago, the redoubtable information rights expert and blogger Jon Baines wrote about an odd change on the ICO’s website. Just after the EU referendum vote, the ICO published a bold statement, calling for Data Protection standards in the UK to be equivalent to those in the EU. Shortly after, the statement disappeared. Around a week later, it was replaced by something more bland. Jon wondered why the ICO had resiled from their original position. He was, however, fortunate to receive a comment from an ICO spokesman:

“We noted the debates about different options that emerged following the referendum result and we decided to move to a simpler statement to avoid being too closely associated to any one particular position”

I believe that this statement is untrue.

After a conversation with Jon, I made an FOI request to the ICO for “Any recorded information on the decision to remove the statement, including who made the decision to remove it, and why it was removed“. Remarkably, the ICO claims to hold just one email that is relevant to my request (I’m not convinced, so I am following this up), but I think it’s reasonable to conclude that the ICO did not change the statement because they “noted the debates“. They changed the statement because the Department for Culture, Media and Sport, the government department responsible for Data Protection, asked them to.

A DCMS official emailed Christopher Graham, the former Information Commissioner, directly on 28th June:

Screen Shot 2016-08-26 at 09.07.02

The revised version is identical to the statement that you’ll find here on the ICO website.

The DCMS position is understandable – a few days after an unexpected vote, it’s not hard to imagine that they hadn’t reached a final position on GDPR. I’d be surprised if they were certain now, frustrating as that might be for the likes of me. But when the DCMS talks about it being far to early for “us” to be so definitive, they are not talking about the ICO, which is legally separate from and independent of Government. If the former Commissioner and his staff believed that the DPA is out of date and not fit for purpose, they were right to say so. Bear in mind that the statement in question was made after the vote, not when the ICO view could in any way have influenced its outcome (or when such an allegation could be made). DCMS are free to disagree with them, and indeed to ignore them if they so choose. I think GDPR-lite is a terrible idea, but they can pursue if they think it’s right. I’m not even sure I want to criticise the DCMS request – it’s quite clearly not an instruction.

However, for the ICO to change their statement (and by default, their official position on the GDPR) is a significant and worrying step. The ICO’s position can be identical to the DCMS one, but only if that’s because the ICO thinks DCMS is correct. It would be in no-one’s interests for the ICO to challenge and contradict DCMS merely to show that they’re nobody’s poodle. But Wilmslow’s reaction to the Brexit vote was clear, and now it’s not. Was the original position wrong? Is there any reason why the ICO cannot be allied to one particular position if they think it’s the right one?

Equally, if the ICO is going to change its public position, it should be honest with the public about why it is doing so. The statement on the ICO website says

At the annual report launch on 28 June 2016, Information Commissioner Christopher Graham updated the ICO statement

Whereas, what it should say is:

At the request of the DCMS, at the annual report launch on 28 June 2016, Information Commissioner Christopher Graham updated the ICO statement

As embarrassing as this might be, if the ICO is content to follow the debate about the future of the GDPR in the UK rather than leading it, it should be honest enough to admit that this is their position. I’ve already blogged about the bizarre situation that the ICO team that deals with complaints about political parties and councils are managed by a serving Labour Council leader. Here is another situation where the ICO’s ability to make robust, independent decisions appears to be compromised.

This depressing episode happened in the dying days of the previous Commissioner’s tenure; more than ever, I am glad that he is gone. We have a new Commissioner about whom I have seen and heard nothing but encouraging things. I can only hope that when faced with decisions like this in the future, Elizabeth Denham takes an more independent approach.

Caesar’s Wife

In May 2016, the Labour member for Heatons North, Alex Ganotis, became Leader of Stockport Council, having been a councillor for some years. A month or so later, I read a story mentioning him in the Manchester Evening News, and his name rang a bell. Alex Ganotis is also a Group Manager at the Information Commissioner’s Office – I know this because he has signed hundreds of FOI Decision Notices on behalf of the Commissioner.

I made an FOI request to the ICO to find out more about Mr Ganotis’ role – in particular, I wanted to know how likely it was that a professional politician might be involved in complaints to the ICO involving political parties or local government. If Mr Ganotis worked on financial services or health, for example, he would need to maintain a high degree of professionalism and neutrality, but there would be no immediate conflict of interest. So I asked the ICO what team he manages. The answer:

Mr Ganotis manages a team of staff who deal with complaints and concerns about councils and political parties

I had to read this several times before I could take it in.

The ICO’s Policy on party political activities is helpfully published on its website. It makes reassuring reading:

The ICO is an independent body and it is important for it to be free from party political bias, and to be clearly seen and acknowledged as being free from such bias……. It is of paramount importance that the ICO is acknowledged as being free from party political bias and influence. The work that we do can often be of a politically sensitive nature and any substantiated allegations of bias would have serious repercussions for the future of the ICO.

The policy sets out a process through which an ICO employee can gain approval for party political activities. I asked when Ganotis went through this process, and the ICO revealed that he was approved in October 2008, which means that his dual ICO / councillor role went on for nearly eight years before he became Leader – he did not seek re-approval when he became Leader, so it seems that the ICO has not reassessed his role now he is a council leader, nor has he asked for this to happen.

I asked for recorded information about the approval process for his role. The ICO has nothing. I asked for any recorded information about measures taken to ensure, in the Policy’s words, that ‘potential for conflicts of interest’ have been minimised with regard to Mr Ganotis’ role. Nothing is held. The ICO added “Mr Ganotis’ line manager and his peers are responsible for assigning decision notices and make a judgement on a case-by-case basis as to what he is assigned, taking into account whether individual cases could pose a potential conflict of interest.” There are no formal arrangements, no written criteria or parameters, nothing to measure or audit against. The ICO enthusiastically fines organisations hundreds of thousands of pounds for failing to maintain properly documented processes, but in the case of having a professional politician managing a team that deals with hundreds of complaints about political parties and councils, the ICO itself sees no need for rigour. Trust whoever decided that this is OK, Wilmslow says, because we have nothing else to offer.

Mr Ganotis is a Group Manager, answering to a Head of Department, but the ICO’s response makes clear that the former Information Commissioner himself, Richard Thomas, approved of the arrangement: “the Commissioner at that time was made aware of his standing and subsequent election“. When I wrote this blog originally, I assumed it was Christopher Graham who was Commissioner, but he did not take over until 2009. ICO trivia fans may remember that Graham was himself once a councillor (for the Liberal Party) and a twice-unsuccessful parliamentary candidate – one wonders if he knew about Ganotis’ status, and if he did not, why nobody told him.

Anyone who has political beliefs or leanings and works in local or central government knows the awkward but vital requirement to set those beliefs aside and act neutrally in the public interest. As a Labour voter in every election since 1992, I have done it myself. It is not easy, but you don’t need to be a saint to achieve it. I cast no doubt on Mr Ganotis’ personal integrity, or ability to do the same. But anyone who thinks that’s the point just needs to Google the title of this blog.

Mr Ganotis has signed hundreds of FOI decision notices on behalf of the Information Commissioner, exercising the Commissioner’s statutory powers. Those notices include  councils across the UK, and government departments run by ministers who, in his other role, Mr Ganotis publicly opposes, and he has been doing so for years. The ICO disclosed to me a spreadsheet of the cases that Ganotis’ team has dealt with since January 2014 (records before that are routinely destroyed). A quick glance at the organisations concerned give a flavour of the issues that pass across the team’s desk in just one month. In July 2016, I can see the Labour Party (8 times), Momentum, Saving Labour, and Progress. It is hard to imagine any team would be more steeped in politics and arguments about political activity than this one, and the (former) Information Commissioner decided that a professional politician was the right person to manage it.

Over the past few years, the Labour Party has carried out its obnoxious and unfair purge, struggled with allegations of member data misuse on all sides (Corbyn, Momentum and Owen Smith), and demonstrated the traditional party blindness to PECR. I have myself blogged sorrowfully but repeatedly about Labour’s Data Protection and privacy woes for several years. In all of that time, only David Lammy’s doomed automated calls have faced any enforcement action (and he wasn’t even an official Labour candidate in the election concerned). To be clear, I have no evidence of any influence being brought to bear on this. But, as the ICO’s own policy states explicitly, “the organisation does seek to ensure that the potential for conflicts of interest is minimised as is the possibility of the ICO being accused of being politically biased“. In this, Mr Ganotis, his line manager and the former Commissioner have failed, and failed spectacularly. How can anyone in politics have confidence in the ICO’s decisions?

Any FOI decision notice involving a council or a government department signed by Mr Ganotis could be tainted, and there are hundreds of them. The ICO’s failure to take action against the Labour Party for a consistently terrible approach to Data Protection and privacy issues is no longer just over-caution, but potentially something far more objectionable. Every case Mr Ganotis has been involved in could be perfect, but the ICO cannot guarantee this with a straight face; their own policy recognises the problem of perception, but their practice is blind to it. They could have moved Ganotis at any point since 2008 to another job of equal standing, and the problem would have evaporated. He is still in place.

That Mr Ganotis could not see that continuing to manage a team responsible for complaints about political parties and councils was incompatible with his role first as councillor and then as Council Leader raises a question about his judgement. That the ICO’s management was either unwilling or incapable of identifying and remedying the potential conflict of interest is a matter of serious public concern.

I have spent a decade and a half criticising, satirising and annoying the ICO in the hope that for no other reason than to spite me, they will become a more effective, more enthusiastic regulator of Data Protection. But this is too much. This is a genuine failure of governance. It could pollute a host of formal decisions (and indecisions) stretching back for years. It has to be dealt with.

I don’t understand how Mr Ganotis could ever sensibly manage the team responsible for political parties and enjoy the confidence of the public. Richard Thomas and Chris Graham should have stopped it, and I hope that the new Commissioner will ask questions about how her managers and Human Resources team could allow such a shocking situation to occur. But if all this isn’t put right, if this bizarre conflict of interest continues acknowledged but unaddressed, we should all look very closely at every decision that emerges from Wilmslow with a more sceptical eye than even I thought possible.

What do they know?

A few months ago, a dispute arose between the popular / reviled* FOI request website What Do They Know and a landlord in Bournemouth, after his address was inadvertently included in an FOI response. The landlord asked for his address to be removed, and What Do They Know refused. WDTK volunteer Richard Taylor described all this on the site, drawing attention to the fact that the address was still there. I can see no evidence that WDTK informed the landlord that they would publicise the fact that he had complained; my guess is that they did not.

The landlord complained to the ICO. Replying to the ICO on behalf of the charity, Taylor claimed that there was a legitimate interest in continued publication, but hedged his bets by stating that WDTK was exempt under DP’s S32 journalistic purposes exemption. The ICO rejected both arguments and asked WDTK to remove the original spreadsheet. Again, Taylor wrote in detail about this on the site, revealing in the process that the landlord had complained to the ICO. It’s worth noting that the ICO never reveals the identity of those who make complaints to it, and I can find no evidence that the complaint was made public anywhere else. None of my correspondence with the charity has revealed any.

A similar issue arose last year. Another council published the name of a Unison official (apparently in error) and What Do They Know refused to take it down. Again, Taylor revealed the fact that the individual had complained to the ICO, although on this occasion the ICO chose to take no action. Taylor also researched the complainant and published information about his wife on the WDTK page. Though the information Taylor gathered was clearly in the public domain, at best, it suggests an unsympathetic attitude to those who raise concerns when their data gets published on the site.

The first Data Protection principle requires Data Controllers to process data fairly, lawfully and according to a set of conditions. In this case, the data controller is UK Citizens Online Democracy, the charity which runs My Society. Data Protection requires that people must be told how their data will be used, while the only condition available to What Do They Know is legitimate interest, which must be balanced against any prejudice to the rights and freedoms of data subjects. If you complain to What Do They Know, or to the ICO about What Do They Know, they’ll make this public and a volunteer may research your family relationships and publish that too. As Taylor’s comments are always couched in terms of ‘we’ and ‘us’, I believe that that this approach is endorsed by the charity as a whole. This blows the legitimate interest argument out of the water: if a person cannot complain to either What Do They Know or the ICO without the matter being published by What Do They Know, there is clearly prejudice to their rights and freedoms.

The doomed use of S32 piqued my interest, so last month I asked What Do They Know for copies of: “any procedures or guidance available to control how personal data is obtained and published by My Society in the context of the What Do They Know website”. Of course, the charity isn’t covered by the Freedom of Information Act, but for an organisation whose public commitment to FOI and transparency verges on the obsessive, it’s not unreasonable to ask them to apply FOI standards to themselves. A month later, I received a reply:

“Personal data generally comes from users and public bodies and the site, and emails sent by it, contain lots of warnings when material is to be published online. We do our best to ensure our users, including those responding to requests at public bodies, are fully aware of what we do with the information we obtain.

NB: if you’re writing a blog post, please note how we write mySociety.”

That’s right – they didn’t give me the guidance, but Heaven Forbid I get the branding wrong. I persisted, pointing out they’d dodged the request for procedures in favour of a vague narrative answer. This time, I received a reply from Mark Cridge, the Chief Executive, setting out the decision-making process for What Do They Know (there was an opportunity for him to distance the charity from Taylor’s actions here, and he didn’t take it). On the specific request for procedures, despite the fact I’d pointed out that my request had been sidestepped, this was his reply:

We also have policies on our private internal wiki, which volunteers can refer to which provide more detailed guidance on our established policies, specific data protection guidance and key learnings from our experience of running the service for the past eight years

But he didn’t provide them, though this was what I had asked for twice. Yes, the charity is not covered by FOI and can do what it likes when annoying people like me ask them questions. No, this approach is not consistent with the values of an FOI campaigning organisation. In any case, it doesn’t matter, because I already know what the Private Wiki says about Personal Data:

Personal data in general

  1. We only consider takedown requests when we get them. We don’t pre- or post-moderate the site.
  2. The source of personal data is irrelevant, whether it is inadvertent, leaked with intent, or from someone who later develops “Google remorse”. The source of complaint/takedown request is also irrelevant, whether it comes from the data subject or a third party.
  3. Our responsibilities are therefore about deciding whether to continue to publishing or not, in line with our obligations as Data Processors, when a complaint about personal data drawn to our attention, i.e. on a case-by-case basis
  4. We have DPA Section 32 on our side, so we look at the PCC code and weigh up the public interest

The guidance proves that Taylor’s use of S32 isn’t just a randomly clutched straw. S32 is an immense exemption – it removes more or less every Data Protection requirement except security. The fact that it doesn’t apply to What Do They Know (and we know that this is the ICO’s position) isn’t the only problem. The reference to What Do They Know being ‘Data Processors’ is even more stupid. Data Processors have no data protection responsibilities – they are merely agents of someone else. There are two problems here. First, it’s impossible for the charity to be simultaneously a data controller using S32 and a data processor – they’re either one or the other. Second, the subtext of both positions is that the operation of What Do They Know exists in a vacuum – whether it’s because they’re journalists or data processors, they’re not answerable for DP issues.

The absurdity of the charity thinking it’s a data processor is plain as soon as you try to work out on whose behalf they would be operating. They’re definitely not data processors for the public authorities, who have no option but to send data to the website. It’s equally ridiculous for the charity to think that they’re Data Processors for the applicants. If this was true, UKCOD wouldn’t be allowed to remove material from requests without the applicants’ permission, applicants would be the ones dealing with the ICO over complaints, and every What Do They Know user would need a binding legal contract with the charity, or find themselves in breach of the Data Protection Act’s seventh principle.

Guidance like this could easily create a sense of immunity and entitlement – whatever happens, we’re not covered. Worse that that, the volunteer who seems to take the lead on Data Protection issues is Taylor, an anti-privacy zealot who films people without their permission, without properly identifying himself and publishing the results despite their explicit requests for him not to. When I contacted him about this intrusive behaviour earlier this year, he justified his antics with similarly vague S32 arguments. He also compared himself to Channel 4 News and Roger Cook, although I don’t think they ever stood in the rain filming a meeting through a window despite being invited inside. He also told me that he didn’t need to provide a Data Protection notification for his website because he claims the ICO says that ‘personal websites’ are exempt. They’re not, and the ICO doesn’t say so. I can’t prove that Taylor wrote the WDTK guidance, but I think it’s a safe assumption.

Whenever I write a blog like this about people who perceive themselves to be doing the right thing for the right reasons, one of the criticisms that is thrown back at me is that I am being deliberately negative. Why can’t I offer something constructive? Indeed, the last time I criticised What Do They Know, this is exactly what the former Director of My Society Tom Steinberg said. I did write a blog with some helpful suggestions of how What Do They Know could be improved, but none of my suggestions were taken up. This time around, I put my money where my mouth is. Last year, long before I corresponded with UKCOD or Taylor about these matters, I offered free Data Protection training to the volunteers at a time and venue of their convenience. I didn’t want any PR; indeed, I would have asked them to keep it a secret. Of course, I am not a cheerleader for What Do They Know – I think it can be an unhelpfully ideological enterprise, sometimes showcasing the worst aspects of FOI – but the offer was genuine and it fell by the wayside for reasons that were never explained.

So here we are. Cridge told me that the policies and procedures he didn’t want to show me will be reviewed, but how long has the above-quoted nonsense held sway? A What Do They Know volunteers can shame complainants and dig into their backgrounds, while the organisation fails to be transparent over its flawed guidance. Of course, I didn’t tell anyone at What Do They Know that I knew what the guidance said, but if transparency is such an unalloyed positive, why couldn’t I prise it out of them?

It’s impossible to blame UKCOD for the fact that public authorities sometimes inadvertently disclose information in response to FOI requests. It would be unacceptable if data was accidentally sent to a single applicant. Nevertheless, What Do They Know magnifies the problem by publishing all responses and failing to moderate what goes onto the site. I’m not convinced Richard Taylor is qualified to be involved in complex decisions about the publication or removal of personal data on behalf of a charity. I certainly don’t have confidence in a system based on wildly illogical guidance, and which allows volunteers to publish information about complainants and research their backgrounds. Complainants must be treated with respect, even if their complaints fail.

UKCOD’s management and trustees cannot hide behind the volunteer nature of What Do They Know – the website is not a naturally occurring phenomenon, and it needs to be managed and controlled. They created it, they run it, knowing that they lack the resources to proactively moderate it. In the light of this, if it is in the public interest for FOI requests to be broadcast, exactly the same approach should be taken for how What Do They Know is run.

 

(*delete as appropriate)


 

Less than ideal

Last week, Stephen Lee, an academic and former fundraiser was reported as having attacked the Information Commissioner’s Office for their interpretation of direct marketing at a fundraising conference. It was, he said “outrageous” that the Commissioner’s direct marketing guidance stated that any advertising or marketing material that promoted the aims and ideals of a not-for-profit organisation was covered by Data Protection. According to Lee, only fundraising activities should be considered to be marketing.

[NB: Third Sector articles are sometimes open to all and sometimes limited to subscribers. If the links don’t work, please accept my apologies!]

He is quoted as saying “Who says that’s right? Just the ICO. Who did it consult? No one.” and  went on to say “Why and how and in what way should we be compelled to comply with that proposition?”

Who says that’s right? Who did the ICO consult? Well, let me see now.

1) The Council of Europe

In 1985, the Council of Europe issued a Recommendation on the protection of personal data used for the purposes of direct marketing. The definition of direct marketing includes both the offer of goods or services and “any other messages” to a segment of the population. The recommendation predates the guidance Mr Lee disparages by more than 30 years.

2) The 1995 Data Protection Directive

The Directive makes clear that direct marketing rules apply equally to charitable organisations and political parties as they do to commercial organisations, and emphasises the need for people to be able to opt-out of direct marketing. By redrawing the definition, Mr Lee would contradict this fundamental right.

3) The Data Protection Act 1998

Given that Mr Lee feels qualified to make bold statements about the interpretation of the Data Protection Act, it’s odd that he doesn’t seem to have taken the time to read it. Section 11 of the Act states that the definition of Direct Marketing “the communication (by whatever means) of any advertising and marketing material which is directed at particular individuals”. The important word there is “any” – organisations do not get to pick and choose which of their promotional messages are covered and which are not.

4) The Privacy and Electronic Communications Regulations 2003

PECR sets up the rules for consent over electronic direct marketing (consent for automated calls, opt-out and TPS for live calls, consent for emails and texts). It does not define direct marketing, but instead says this “Expressions used in these Regulations that are not defined in paragraph (1) and are defined in the Data Protection Act 1998 shall have the same meaning as in that Act”. Therefore, the DPA definition applies to PECR.

5) The Information Tribunal (now the First Tier Tribunal)

In 2005, the Information Commissioner served an Enforcement Notice on the Scottish National Party after they repeatedly and unrepentantly used automated calls featuring Sean Connery to promote the party in the General Election. The SNP appealed, and in 2006, the Information Tribunal considered the issue. One of the main elements of the SNP appeal was against the ICO’s definition of direct marketing. Although the case is about a political party, the ICO’s submissions are based on the proposition that charities as well as political parties are covered by the definition of direct marketing, and that the definition cannot be restricted to fundraising alone. The Tribunal accepted the ICO’s view in full, and dismissed the appeal.

6) The charity sector and anyone else who wanted to be consulted

The ICO may have issued guidance in the 1980s or 1990s on the definition of direct marketing, but the idea that promoting aims and ideals is part of it has been their view since 1999. In guidance issued on the precursor to PECR, the ICO stated clearly that direct marketing includes “not just to the offer for sale of goods or services, but also the promotion of an organisations aims and ideals”. They specifically mentioned charities, as they have ever since. Virtually every iteration of the ICO’s guidance on PECR and direct marketing has been subject to public consultation – indeed, the very guidance Lee is talking about was subject to a public consultation.

Here’s the problem. Lee is an Honorary Fellow of the Institute of Fundraising, and has a long association with it. The IoF has been the most consistently pernicious influence on the charity sector’s compliance with data protection and privacy law in the past ten years. Their guidance and public utterances on data protection are often misleading, and they recently had to change their own Code of Practice because it was legally incorrect. At best, they haven’t noticed the ICO position on charities and direct marketing for more than 15 years. At worst, they deliberately ignored it in favour of an interpretation that largely suits fundraisers. Lee complained at the conference about the “appalling” communication between the ICO and charity umbrella bodies, but Richard Marbrow of the ICO summed the problem up all too well:

One of the things the sector asked for was clarity, and I will try and bring you that. The trouble is, if you then say ‘we don’t like that clarity, could we have some different clarity please?’, we’re not going to get on very well.”

The most important thing about Lee’s outburst is the subtext – if any form of communication is not covered by the definition of direct marketing, then your consent is not required  in the first place and you have no right to stop receiving it. His interpretation is nonsense, but it is also ethically unsound. At its most basic level, privacy means the right to be left alone, the right to have an area of your life which is yours, which others can’t intrude into. Lee seems to want to erode that right. If his view was correct (it’s not), charities could bombard people with phone calls, texts or emails to tell them how marvellous they are, how important their work is, how vital they are for society. As long as they don’t ask for money, the logic of his argument is that people wouldn’t be able to stop them.

Lee’s other question (“Why and how and in what way should we be compelled to comply with that proposition?”) has an easy answer. Ignore it. Carry on breaching the law, ignoring the rules. I went to the cinema last night and saw adverts for two different charities that plainly breached PECR, so that seems to be the plan. Given that the furore over charities began with an innocent person bombarded with unwanted correspondence, it’s remarkable that senior figures in the charity sector are ready for another go, but if Mr Lee wants to drag charities’ reputations deeper into a swamp that they share with PPI scammers and payday loan merchants, he’s welcome.

But the ICO should not listen to their concerns, or open friendly channels of communication with the sector. They should apply the law firmly and regularly until the charities get the message. If this results in more enforcement against charities than other sectors, that will be only because the big charities are among the worst offenders and they haven’t put their houses in order. If charity giving suffers as a result, even amongst the many charities that have not transgressed, they should stop blaming others and look to their fundraisers, their colleagues and themselves.

A bridge too far

June is a significant time for Data Protection in the UK. At the end the month, we have the EU vote (where a vote to leave will throw at least the timetable for implementation of the new General Data Protection Regulation into disarray) and Christopher Graham steps down as Information Commissioner, to be replaced by Elizabeth Denham. There are several reasons to be optimistic about Denham’s appointment – she is the first Information Commissioner to have previous experience of privacy and FOI work, she has already taken on big corporate interests in Canada, and she isn’t Richard Thomas.

However, Denham inherits a series of headaches as she begins her reign as Elizabeth II, and it’s difficult to know which of them will be the hardest to shake off. There is the GDPR implementation, which would be a challenge even without the uncertainty that Brexit will create. She also has to tackle the ICO’s lack of independence from Government, which results in scandalous outcomes like the admission in an FOI response that Wilmslow takes orders from its sponsor department (see answer 3 here). But perhaps biggest of all is the ICO’s approach to enforcement.

On FOI, the ICO doesn’t approach enforcement – it does pointless monitoring and audits without any evidence of success, and the major government departments use the ICO as their internal review, sometimes not bothering to answer requests unless ordered to do so by an ICO case officer. The sole enforcement notice in the past five years wasn’t even promoted by the office because the now departed Deputy Commissioner Graham Smith didn’t want to draw attention to the failure to tackle Whitehall’s FOI abuses.

On Data Protection, the approach is to enforce against self-reported security breaches. There is nothing wrong with lots of enforcement on security – it’s a significant requirement of the legislation and many people are concerned about it. The problem is that Wilmslow doesn’t enforce on anything else, despite breaches of the other principles being widespread and obvious. Unless I missed one, the ICO has issued 61 Data Protection monetary penalties since getting the power to do so. Two have been for non-security breaches: Pharmacy 2U (1st principle data sharing without consent) and Prudential Insurance (accuracy). The overwhelming majority of enforcement notices (and undertakings, if you count them, which you shouldn’t) are on security matters. This is despite the fact that the UK has a massive culture of unlawful data sharing, over-retention, flouted subject access and perhaps most obvious, rampant, damaging inaccuracy. The ICO does nothing about it.

A classic example is a story reported in the Observer about the Dartford Crossing between Kent and Essex. Automatic Number Plate Recognition is used by Highways England to issue penalty charges to drivers who use the crossings without paying by phone or web within a fixed period of time. The only problem is that drivers who have never used the crossing are getting the penalties, but it is more or less inconceivable that the ICO will take action.

Having used the crossing myself, I can confirm that there are some Data Protection issues with the signage around the bridge / tunnel – the Observer article explains well how the signs can easily be confused with those for the London congestion charge, which works entirely differently. This is, in itself, a potential data protection breach, as personal data needs to be obtained fairly, especially when the data being obtained (the license plate) will not only be used to levy a charge, but because court action may result for non-payment.

One person is quoted in the article as having being charged  because the system misread a ‘C’ as a ‘G’. The Observer also reports that hire car users sometimes find penalties aimed at the wrong person because Highways England don’t specify a date that the charge applies to. In another case, the person receiving the charge had sold the car in question, and had a letter from DVLA to prove it. As with most of these situations, terrible customer service and inflexible processes mean that even when a charge is applied to the wrong person, nobody in the food chain has the authority or the inclination to sort things out. Both of the individuals cited in detail by the Observer were headed for the baliffs until the Observer got involved, and all action was terminated. Research by Auto Express notes that only 1 in 25 people appeal their penalty, but 80% of those that do are successful.

Every time Highways England / Dart Charge issues a penalty against the wrong person, it is a breach of the fourth Data Protection principle, which states that “Personal data shall be accurate, and where necessary, up to date”. Note the lack of any qualification or context here – data is accurate, or it’s a breach. Clearly, this means that most organisations are breach DP every minute of every day simply because of typos, but even adopting a flexible approach, there can be no doubt that demanding money and threatening court action is a situation where the Data Controller must be certain that the data is accurate, and if they get the wrong person, it’s a breach. The security principle talks about “appropriate measures” to prevent incidents, but the fourth principle doesn’t: it’s absolute.

Highways England / Dart Charge have breached the DPA, but would it be possible for the ICO to take action? In order to issue a monetary penalty, the ICO has to meet a series of tests.

1. The breach is serious

Dart Charge are pursuing people for debts they don’t owe. It’s serious.

2. The breach is deliberate

This one is potentially tricky, as we would need evidence that Highways England know that they are operating on the basis of inaccurate information in order for the breach to be deliberate. I can’t prove that Highways England are deliberately pursuing people, knowing that they are the wrong targets, although one of the Observer readers quoted gives clear evidence that they might be: “I spent 20 minutes trying to get through to someone who kept telling me I had to pay, even though he could see the problem”. However, we don’t need deliberate if we have:

3. The Data Controller knew or ought to have known about the risk and failed to take steps to prevent it

This test is clearly met – Highways England know that most of their penalty charges are overturned on appeal, they know that their system misreads licence plate characters, that it fails to properly distinguish dates, and they know that people contact them multiple times with evidence that the charge is wrong, but they ignore this evidence until they are embarrassed into action by a national newspaper. The breaches are still happening.

4. The breach is likely to cause damage or distress

Innocent individuals who have not used the Dartford Crossing are being pursued and threatened with legal action if they do not pay money that they do not owe. The breach is causing damage and distress and is highly likely to do so.

The ICO does not enforce on accuracy and they won’t touch this case. If I tried to report it to them, they would ignore my complaint because I have not been affected (if an affected person complained, they would do an unenforceable assessment). They do not ask Data Controllers to report incidents of damaging inaccuracy, and they do not even advocate investigating incidents of inaccuracy in the way that they do for security. This despite that fact that inaccuracy leads to the wrong medical treatment being given, innocent people’s houses being raided by the police, and old men nearly drowning in canals. The ICO took no enforcement action in any of these cases, despite them being in the public domain. I have dozens of others. Meanwhile, the Commissioner chunters on about a series of accidents and mishaps without any direct evidence of harm (ironically, even the pace of security enforcement has slowed, with only three DP monetary penalties at all so far this year).

Whatever Ms Denham’s priorities might be, she cannot ignore this. The ICO has shirked its responsibilities on the other principles for too long. A quick glance at the articles relevant to enforcement show that the GDPR is specifically designed to give breaches of the principles the higher maximum penalty. It’s a riposte to the ICO’s enforcement priorities since the HMRC lost discs incident in 2007, and it’s a bridge that the new Commissioner must be willing to cross.