The Red Menace

Just before New Year, the pro-Brexit, anti-single market pressure group Change Britain published a report about the possible savings that could accrue to the UK if we cut all ties with the EU. Keen observers of current politics will be astonished to learn that the amount is in the multiple billions. One of the top savings is from repealing the Data Protection Act 1998, which Change Britain claims costs the economy a whopping £1,058,830,000, while (if I am reading the table right), giving a benefit of precisely nothing. It’s a prime example of ‘harmful EU red tape‘ that Change Britain is very much against.

Curiously, the report doesn’t include any mention the General Data Protection Regulation, despite the fact that the Government announced several months before its publication that GDPR will apply in the UK, reflecting the reality that it will come into force before we leave. The report does not hint at any cost in repealing the DPA and replacing it with something else, or the wasted effort currently being expended by organisations large and small in preparing for GDPR, all of which they want to cancel out. The economic benefit of being able to share data across EU borders isn’t priced in at all, even if we accept the £1 billion cost at face value. Inevitably, Change Britain’s report has the mindset of an Oscar Wilde cynic, knowing the price of everything and the value of nothing. Although the DPA is clunky and badly enforced, the benefits of saying that personal data should be obtained fairly, used transparently, kept in good order and processed securely are enormous.

I emailed Change Britain just before New Year asking the questions outlined below. I would like to express my gratitude to the Change Britain staff member who took the time to give me two courteous replies when many people were probably on holiday or hung-over.

Can you confirm that Change Britain believes that the GDPR should not be implemented, as well as advocating the repeal of the Data Protection Act? Can I ask what analysis you have done into the effects of repealing DP, in terms of its effects on the security and quality of personal data, and the rights of UK citizens to know how their data is used, and to get access to it on request?
Can you also provide me with any proposals Change Britain have for replacing the Data Protection Act / GDPR, or is the idea to remove any controls or protections on the way personal data is used in the UK post-Brexit?
Finally, can you give me any analysis on the effect of repealing the DPA / not implementing GDPR on the ability of UK companies to exchange personal data with EU countries, and how this would affect the UK’s adequacy for Data Protection purposes? As I am sure you already know, not having adequate data protection provisions would make it virtually impossible for EU and UK companies to do business with each other, because no personal data could be shared outside the EU.

In their reply, Change Britain didn’t explain why they hadn’t mentioned GDPR in the first place, but noted that the Coalition Government said in 2013 that the GDPR could ‘impose unnecessary additional costs on current businesses‘, a comment made on a version of the GDPR which is quite different to the one we’re actually getting. The emphasis was on ensuring that “expensive red tape is cut so that the burden on business is reduced“.

They didn’t really answer the questions, but the thrust of their preferred approach seemed to come here: “We believe that it is possible to secure a new relationship that allows ongoing data sharing between the UK and the EU and gives UK policy makers an opportunity to deal with the issues they have identified with EU laws and – in so doing – reduce the burden of red tape on British businesses“. They didn’t mention the fact that the current government has announced that the GDPR will apply or what the implications of that might be for their proposal. Crucially, while they clearly wanted to “reduce the burdens”, they did not explain to me what these burdens were.

It seemed to me that Change Britain were describing the Mother of Worst Case Scenarios: repeal of the DPA with a UK only replacement instead of adopting the GDPR, some kind of negotiated deal over EU data sharing with all the fragility that entails in the world of Max Schrems, a situation which could well mean UK businesses with EU customers separately adopting GDPR for their customers. Of course, there are many who think that an adequacy finding for the UK post-Brexit is going to hard to achieve, and so some kind of UK Privacy Shield arrangement (AKA Daragh O Brien‘s Privacy Brolly) is the likely outcome. But I’m not aware of anyone in the DP world who thinks this is a good idea – it’s just what we might end up with.

I emailed them again. I asked whether they were proposing what I thought they were proposing (making it sound as complicated and horrendous as I did just now). I wondered whether they had a list of the specific burdens that they objected to. I also asked if they had an analysis of the costs of reversing the current position on GDPR, given all the time and money that is currently going into preparing for it precisely because the government has said that we should. Finally, I asked whether a Privacy Shield arrangement was should be the aim, given the fiery death of Safe Harbor and the fact that the prognosis for Privacy Shield is somewhat toasty (to paraphrase).

They were kind enough to reply again, but with a striking lack of detail. “Brexit is an opportunity to repeal laws that don’t work and introduce better versions” they told me. They did not dispute my interpretation of what they want, which is astonishing. They are “aware of the legitimate issues that you have raised, however we also believe that the concerns raised about the impact of the EU’s data protection regime on small businesses should also be given equal weight when the Government considers the opportunities that come from Brexit”. They didn’t explain how reversing current government policy and forcing UK businesses to operate at least two different DP systems, no matter how large or small they might be was in the interests of anyone, and especially, how this would save a billion pounds. There is no reason why a small business wouldn’t be one of the enterprises running Change Britain’s UK DP at home, and the GDPR abroad, notwithstanding the *increase* in red tape that their proposal would involve. Change Britain want two laws in place of one, after all.

Despite claiming that Data Protection doesn’t work, Change Britain have not carried out any analysis on the burdens associated with it to underpin their demand that it should be abolished. They have not calculated the cost of abolishing it and replacing it with something else – indeed, I would go as far as to say that they showed no evidence of having thought about it. They could only point me to the previous government’s (now outdated) view of GDPR, and reports produced by the British Chambers of Commerce in 2005 and 2010. It seems to be a case of UK good, EU bad, even as the GDPR is being scrutinised around the world as a model to emulate, or at least react to.

Change Britain’s abolition of the DPA and the abandonment of the GDPR is an economically illiterate idea on a par with Vote Leave’s NHS Bus Promise. It makes no sense except as a sound-bite in a press release designed solely for headlines and incapable of surviving serious analysis. Change Britain’s idea is the opposite of what the Government has told UK businesses to prepare for. It is a recipe for confusion and uncertainty. It is utterly irresponsible.

Whatever you think of Brexit, it has wiped the future clean. Anyone who confidently predicts what the UK will look like in 2020 or 2025 is a fool or a liar. I think it will be a disaster, but other opinions are equally valid. The UK Government’s confirmation that GDPR will apply is a small strand of certainty. Even though the Secretary of State left the door open for change at some stage (which she has every right to do), we know what’s coming next for Data Protection, despite Brexit. In their antipathy towards the EU and all its works, Change Britain want to murder even this tiny certainty. They have no original thoughts on why they think it’s a good idea beyond money-saving that they cannot possibly stand up. They cannot offer any hint of what they want to replace DPA / GDPR with, except that it must be homegrown. It cannot be European in origin. I very much hope that their proposal gets the shortest shrift that the DCMS has in stock.

Make no mistake, compliance with GDPR will be difficult for some, but I suspect that many of the organisations most keen to decry the GDPR would struggle equally to comply with the 1984 Data Protection Act, produced by the Thatcher Government, which even now has parallels with both our current DP Act and the GDPR. The GDPR is clearer, less technical and more understandable than the DPA. It is in most ways an improvement. Change Britain’s proposal is vandalism, and we should wash it away.

FULL DISCLOSURE: I voted Remain, I wholly accept that the UK is going to leave the EU as a result of the referendum, I am more convinced than I was before that it is a stupid idea, and in a free country, you should defend my right to say so.

Fair Cop

The bedrock of Data Protection is fairness. You cannot gain consent without fairness. Your interests are not legitimate interests if they are secret interests. Unless you have an exemption or you claim that telling the person represents disproportionate effort (i.e. the effort of telling outweighs the actual impact), you have to tell the person whose data you are using the purposes for which their data will be used, and any other information necessary to make the processing fair.

The ICO’s Privacy Notices Code of Practice is not ambiguous, nor was its predecessor. It is impossible to read the ICO’s published guidance on fair processing without taking away the key message, consistently repeated for more than a decade: if something is surprising or objectionable, especially if it involves some kind of impact or sharing outside the organisation, it should be spelt out. New-ish Information Commissioner Elizabeth Denham seems to have chosen to reverse the ICO’s previously timid, unimaginative approach to the first principle with a pair of civil monetary penalties against charities. We have one each for the Royal Society for the Prevention of Cruelty to Animals, and the British Heart Foundation, with the promise of more to come. You might say it was unfortunate that charities are first in line rather than, say, credit reference agencies or list brokers (to be a touch tautological). It was the charity sector’s misfortune to fall under the Daily Mail’s Basilisk gaze, and they have to accept that we are where we are.

To issue a civil monetary penalty, there are three hurdles for the ICO to clear. Firstly, there must be a serious breach. Both charities used commercial companies to profile thousands (and in one case, millions) of donors, buying up data from publicly available sources* to assess their wealth and resources, they shared data with other charities whose identity they did not know via a commercial company, and in the case of the RSPCA, they bought contact details to fill in data that donors had provided. The average donor did not have any idea that this was happening. I can see there’s a problem that when everyone in the charity sector knows that wealth screening goes on, it seems normal. But I’ve been using it as an example on my training courses ever since the Mail revealed it, and bear in mind that these are often seasoned data protection professionals who know about data sharing and disclosure, attendees are invariably shocked and some cases revolted by what I tell them.

There is no doubt in my mind that this processing needed to be spelt out, and there is no doubt from the notices that it was not. Carefully selected third parties or partners has been a stupid lie in marketing for years, but not even knowing where the data goes is much worse than the usual flogging it to all comers. At least the list broker knows who he’s flogging it to, even though the only careful selection is the ability to pay.

The second hurdle is the need to show that the breach is likely to cause damage or distress to the affected data subjects. It’s been known for quite some time that the ICO was planning to take enforcement action over the Mail stories, and the gossip I heard from charities was that fines were likely. I’ll be honest, I wasn’t convinced. The Information Commissioner lost a Data Protection Tribunal appeal from Scottish Borders Council because they bungled the damage / distress element of a £250000 CMP over pension records found in recycling bins. ICO made a flawed claim that the loss of paper pension records was likely to result in identity theft, but Borders had an expert witness who could argue convincingly that this was not true. The link between the breach (the absence of a contract with the company processing the data) and the damage was broken, and the ICO lost.

But this case is different. The ICO does not need to make a link between an incident and a breach, because they are bound up together here. Both notices show that the ICO has given considerable thought to the distress angle. There is no question that the charities breached the first principle, and their only hope for an appeal is to convince the Tribunal that people would not be caused substantial distress by secret profiling and data sharing after an act of generosity. This is not science, and all I can say is that I am persuaded. But for an appeal to be successful, the charities will need to persuade a Tribunal with strong experience and knowledge of DP and PECR from the numerous (and almost exclusively doomed) marketing appeals.

The third element requires the breach to be deliberate or a situation where the charities ought reasonably to have known about the breach. As I have already said, the ICO’s position on fair processing is well known in my sector and available to anyone who can type the ICO’s web address. I think it’s possible that the charities didn’t know what they were doing was a breach, but in my opinion, this is because the Institute of Fundraising and the Fundraising Standards Board effectively acted as a firewall between charities and reality. The advice (often inaccurate and out of date) came from the IoF, and complaints about charities went to the FRSB and no further. When your code of practice is written by the people who earn their living from fundraising and most in your sector are doing the same thing as you are, it’s not hard to fool yourself into thinking it’s OK. But ‘everybody does it’ will cut no ice with the Tribunal. The RSPCA and the BHF are not tiny charities flailing in the dark – they are massive, multi-million pound operations with vastly greater resources than many of my clients.

Daniel Fluskey, head of Policy for the Institute of Fundraising, whose apparent lack of experience or qualifications in Data Protection does not prevent him from writing inaccurate articles for the charity sector on GDPR, has already weighed in, saying that the ICO should be providing the specific wording that charities require: “Charities need more detail on the ICO’s view of what lawful practice looks like: what form of words would have passed the test?” The Information Commissioner is the regulator for every organisation, of every size and shape, that processes personal data. If they start writing tailored wording for charities, they will have to do it for everyone else as well. It is a ridiculous demand. I think the ICO should move on to the data pools, wealth screeners and list brokers, but if she could find the time to issue an enforcement notice on the Institute of Fundraising, forbidding them ever to speak or write on Data Protection matters again, the third sector would have a fighting chance of complying.

Besides, how hard is it to find compliant wording? Nobody – especially not the trade association for fundraisers – should be allowed to present this as a byzantine and complex task. The individual doesn’t need to know what software you’re using, or whether cookies are involved. They need to understand the purpose – what are you collecting, what are you going to do with it, who are you going to give it to? This should be presented without euphemism or waffle, but it’s when you strip out the legalistic nonsense, you see the problem. It isn’t that the poor charities were labouring under the burden of complex data protection rules. They could not comply with the Data Protection Act because what they were doing (and in RSPCA’s case, are apparently still doing) is so unattractive:

  • We will share your details with unspecified charities via a commercial company. We don’t know who they are.
  • We will buy your phone number, postal or email address from a commercial company if you have not given it to us.
  • We will use commercial companies to compile a profile of your wealth and property to work out whether to ask you for further donations. If you are likely to be worth a lot when you die, we will use this information to ask you for a bequest.

When Reactiv Media appealed their PECR penalty, the Tribunal rejected their appeal and increased the penalty. Like a lot of the spammers, they put themselves into administration to avoid paying up, but this option is not available to household name charities. If either the RSPCA or BHF appeal, they are dragging themselves deeper into the mud, and very possibly spending thousands more of donors’ money to do so. If they say that what they did wasn’t a breach, or that they couldn’t have been expected to know that it was, their officers, advice and business model will be scrutinised to a doubtlessly painful extent. The claims management company Quigley and Carter found themselves described as “feckless” and “most unimpressive” in the course of being filleted during a recent failed appeal. Do charities really want that? Even if they decide to roll the dice solely on distress, does either charity really want to acknowledge a serious breach that they knew or ought to have know about in the hope of getting the fine overturned on a technicality? Do they want ICO to call donors as witnesses?

The business model of pressure selling, TPS-busting, heavy texting, data sharing and donor-swapping adopted by some of the UK’s most celebrated charities resembles nothing so much as the activities of the claims management, PPI spammers (i.e. the scum of the earth). For all the noise and bluster on Twitter and in the charity press this week, there is an uncomfortable truth that has to be faced. The hated Daily Mail unearthed it, and the ICO has rightly acted on it. Some big charities have run an end-justifies-the-means approach to marketing and they have got away with it for a decade. Fundraisers ruled the roost, and compliance has been sidelined or ignored. Given how much money the RSPCA and the BHF have raised from fundamentally unlawful practices, they should pull back and rethink how they get donations in the future. They should ignore the Institute of Fundraising’s every word on Data Protection and PECR, and like every other charity, concentrate on reading and applying the ICO’s Code on Privacy Notices and guidance on Direct Marketing.

And right now, if there is a fundraiser sitting with the two CMP notices working out how to at the same time devise a method to raise loads of cash for their cause while complying with Data Protection and PECR, I hope they wipe the floor with everyone else.

*citation needed

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.

Brand new key

Parents at schools in Suffolk recently received an interesting piece of correspondence about an exciting initiative called ‘Suffolk SAFEKey‘, offered by Suffolk Police. For as little as £1 a month, subscribers to the service receive a special key fob with a reference number on it. Once registered, if the keys are lost, the person can use the reference number to contact Suffolk Police’s commercial partner (Keycare Limited) to get keys and owner reunited, incentivised by a £10 reward.

Alerted to this by a concerned citizen, I made an FOI request to Suffolk Police to find out more about the scheme, the arrangement with Keycare Limited, and how the email came to be sent. Suffolk Police told me that they contacted all 18 secondary schools in the county (by phone, so I don’t know how the request was couched), and of those, 8 forwarded the invitation to join SAFEKey to all parents. The force were unhelpfully vague about who else had been approached. I asked who they had contacted, and their answer conflated those they approached and those they claim had approached them. This means I know that those involved are charities (Suffolk Community Foundation / Age UK), “advocacy groups” (whatever that means), Neighbourhood Watch, the University of Suffolk and “lunch clubs and other such groups”, but I don’t know who contacted who.

On one issue, Suffolk Police were admirably clear. I asked them how they had obtained consent to send the email. This was their reply:

The parentmail service is not controlled by the Constabulary and the information provided is not personal data and as such, there is no requirement for us to obtain consent from those third party recipients.

Regulation 22 of the Privacy and Electronic Communications Regulations 2003 (AKA PECR)  applies to emails and texts, and it is remarkably unambiguous, despite all the dodgy marketers and list brokers who purport not to understand it.

a person shall neither transmit, nor instigate the transmission of, unsolicited communications for the purposes of direct marketing by means of electronic mail unless the recipient of the electronic mail has previously notified the sender that he consents for the time being to such communications being sent by, or at the instigation of, the sender

Suffolk Police instigated the sending of the email to parents by making an unsolicited approach to schools, asking them to send it. The email would not have been sent unless they had asked for it to be sent. Regulation 22 does not require them to be the sender. Should there be any doubt about this, the ICO asked Better Together to sign an undertaking following their misbegotten texts during the Scottish Independence campaign. Better Together used an agency – they never held the data and they didn’t send the texts. This is exactly the same situation. There are only two ways that marketing emails could be sent in this way: either parents would have to give consent direct to Suffolk Police, or give consent to the school to receive marketing from the force. This second possibility is one the ICO is keen to play down, as their Direct Marketing Guidance makes clear:

Indirect consent may therefore be valid if that organisation was specifically named. But if the consent was more general (eg marketing ‘from selected third parties’) this will not demonstrate valid consent to marketing calls, texts or emails.

Of course, as the senders of the emails, the schools have also breached PECR. And taking it one stage further, you could argue that Suffolk Police have also breached the Data Protection Act by processing personal data unfairly and unlawfully. If they don’t have a data processor contract with the schools, they may even have breached the seventh principle.

Many public bodies and charities struggle with PECR because they perceive ‘marketing’ as a purely commercial activity. This means that they think the messages they send are somehow not marketing, and are surprised when PECR bites. Suffolk Police can be under no such illusion. SAFEKey is not a policing activity, it is a wholly commercial venture, with the income split 50/50 between the force and Keycare Ltd. Moreover, there is an argument that the force is exploiting its position as a law enforcement body to promote its commercial activities – it’s unlikely that secondary schools would forward information about double glazing or PPI. The force might want this to seem like an aspect of their crime prevention work, but it isn’t – it’s a purely commercial venture. No public body, but especially not the police, should exploit their position as partners with other, smaller public bodies to plug their commercial activities.

There are other concerns. The force didn’t carry out a Privacy Impact Assessment before launching the SAFEKey scheme, which is surprising, as the project involves the force gathering personal data it does not need to carry out its legal functions, purely for the purpose of a commercial venture, using a variety of unrelated bodies as a conduit for the data and transmitting it to a commercial partner. At the very least, you would expect them to consider the risks. Moreover, although the extract I received from the contract between Keycare and Suffolk Police does make it clear that Keycare cannot use or share the personal data they receive for their own purposes, the security demands made by the police are relentlessly generic.

I don’t think the police should exploit the significant position of trust they enjoy to flog commercial services at all. But even if you disagree, there can be no question than when they do, the police should at all times obey the law. They haven’t done so here, and the ICO should investigate. As I did not receive one of the emails, they would ignore any complaint that I made, but they should intervene to make clear to all public bodies how PECR works.

 

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)