Regulating the FOIA into obscurity?

This is a guest post from the redoubtable John Slater, whose tireless efforts to hold DWP to account are a lesson in how FOI should be used. John has had real success in wrestling information out of a stubborn and secretive system, but the post describes the hurdles in the way of the applicant, and the shameful way in which the ICO makes things worse. It’s not a quick read but there’s a lot to say. I think anyone with an interest in how the benefits system operates, or how healthy the FOI system is at the moment should give it the time it deserves. I’m very grateful to John for writing it and letting me host it.

I suspect that most people reading this have experience of submitting a request for information (“RFI”) under the FOIA and all the frustrations that can come with it. Some people may have complained to the office of the Information Commissioner (“ICO”) while others may have just given up when their RFI was refused. I suspect that a smaller number of people, who had the time, appealed ICO decisions to the First-Tier and Upper Tribunals.

Via my involvement with the FOIA I have been dealing with the ICO for approximately 6 years. My interaction has ranged from normal FOIA complaints through to appeals to the First-Tier and Upper Tribunals.

Setting aside the minor issues one typically experiences with any large organization I have to say that my experience of dealing with the ICO has been very positive. Even when a decision notice (“DN”) went against me I could understand why and how that decision was reached. In respect of appeals to the First-Tier and Upper Tribunals I have nothing but praise for the people involved, even when I was appealing an ICO decision.

However, approximately 18 months ago things started to change for the worse. The time taken to respond to complaints seems to be inexorably increasing and the quality of the case work is deteriorating. I’ll use 3 of my current complaints to illustrate the problems that I and others are experiencing on a regular basis.

Case 1 – Universal Credit Programme Board Information Packs

In July 2017 I asked the DWP for the 3 most recent packs of information that were given to the Universal Credit (“UC”) Programme Board members at each monthly meeting. Given how controversial UC is and the history of the DWP being less than honest about it, this seemed to be a good route to try to find out what the senior people responsible for UC actually know and what they are doing about it.

For those not familiar with programme management terminology the programme board consists of senior people who are accountable and responsible for the UC programme, defining the direction of the programme and establishing frameworks to achieve its objectives. So apart from Neil Couling (senior responsible owner) and the secretary of state they are about as senior as it gets. The membership of the programme board can be found here:

https://www.whatdotheyknow.com/request/419990/response/1090823/attach/html/2/3044%20IR%20516%20IR%20604%20reply.pdf.html

Unsurprisingly the DWP refused my RFI on 16 August 2017 citing S.36. However it explained that it needed an extension to carry out the public interest test (“PIT”). On 14 September 2017 the DWP did exactly the same thing. This is a tactic that the DWP uses regularly and often issues monthly PIT extensions until the ICO becomes involved.

I complained to the ICO on 14 September 2017. On 22 November a DN was issued giving the DWP 35 calendar days to issue its response. On 3 January 2018 the DWP finally confirmed that it was engaging S.36 and that the public interest did not favour disclosure (I’ve yet to see a public interest test from the DWP that does favour disclosure). I submitted a revised complaint to the ICO on 9 January 2018 challenging S.36 and the public interest decision.

Despite the 5 month delay by the DWP the ICO bizarrely told me that I still had to exhaust the DWP internal review procedure before my complaint could be investigated. I had submitted 4 internal review requests (“IRR”) during the 5 months that the DWP treated the FOIA with such contempt. I know from previous experience that the DWP would use the same PIT ‘trick’ to delay answering my IRR. I explained this to the ICO and asserted that it has the authority to proceed without me having to submit another IRR. On 30 January the ICO accepted my complaint. I know about this from experience but I assume most people would have followed the ICO instruction and been stuck in another loop of 5 months until the DWP was told to issue its response to the IRR.

On 26 April my case was assigned to a case officer, just 3 months short of a year since I submitted my request to the DWP. Despite the DWP clearly citing S.36 the ICO allowed the DWP to get away with numerous delaying tactics and nothing happened for many months. Despite chasing the ICO on a number of occasions there appeared to be no progress. My patience ran out in October 2018 and I complained to the ICO about this and two other cases. On the face of it this appeared to have got things moving.

However, on 18 October 2018 I was told by the ICO that an information notice had been served on the DWP to obtain copies of the information I had requested. The DWP has 30 days to respond to these notices.

Whilst I’m not surprised by this (in fact I even suggested this was the case in my complaint) I struggle to understand how any organisation can investigate a complaint for almost 6 months without having a copy of the requested information. I can only hope that the DN I have been seeking for so long will appear at some point in 2018!

The delay has been so long that I have actually submitted another request for more current programme board packs. At the time of writing the DWP hasn’t provided a response within 20 days so that’s another complaint that I need to send to the ICO!

Case 2 – Aggregation of various RFIs

Between 4 February and 23 April 2018 the DWP aggregated 9 of my requests for information claiming that they were for the “same or similar” information. Well, what it actually said was:

We consider each of the seven requests to be of a similar nature as they all relate to either decision making or performance delivery of disability assessments on behalf of the Department for Work and Pensions.  In particular, all of the requests would be allocated to the same team for response as it falls within their specialised area. 

Under Section 12 of the FOI Act the Department is not therefore obliged to comply with your request and we will not be processing it further.

This seems to suggest that the DWP believes the requested information is the same or similar because they relate to activities it carries out and the teams that do them. This is a crude attempt to rely on the discredited concept of ‘overarching themes’ that was attempted in Benson v IC and the Governing Body of Buckinghamshire New University (EA20110016).  At [29] the Tribunal stated:

Whilst the Tribunal understood the Commissioner’s analysis the Tribunal felt that it was not compelling and relied on concepts that were not actually within the legislation – e.g. ‘overarching theme’. The Tribunal felt that any consequent uncertainty should, on balance, be resolved in the Appellant’s favour.

On 30 March I submitted a complaint to the ICO. My complaint involves 9 requests and deals with an important area of the FOIA, where there is very little precedent. A reasonable person might conclude that the ICO would be keen to act swiftly. On 27 April 2018 my complaint was assigned to a case officer so things were looking good. It is now coming towards the end of October and I have not had a single piece of correspondence from the ICO.

The requests that have been aggregated cover management information about how the DWP runs large controversial contracts that assess the eligibility for employment support allowance and personal independence payment (“PIP”). A previous RFI uncovered numerous problems with the quality of medical reports being produced for PIP assessments. This might explain why the DWP is so keen not to let me have the current information but not why there has been no progress by the ICO.

Case 3 – Datasets & Type of Data Held for Various Benefits About Claimants

On 26 February 2018 I asked the DWP to disclose the datasets and type of data it holds about various social security benefits. I am not asking for the actual data just the type of data and the “groups” or “sets” of data that it holds.

On 17 April 2018 the DWP refused my request citing S.31 (it eventually confirmed it meant section 31(1)(a))  and  S.24. After a further IRR the DWP reconfirmed its position and I complained to the ICO on 15 July. Some 3 months later on 11 October I was finally told that my case had been assigned to a case officer. Does this now mean I wait for a further 6 months before anything actually happens?

Conclusion

I know the ICO is very busy, partially due to the new Data Protection legislation, but the problems that I and others are experiencing can’t just be explained by “being busy”. Based on my previous experience of dealing with them I also don’t believe it is the fault of the case officers. These problems are due to serious organisational failings within the ICO. There doesn’t seem to be the type of business processes / workflow that one would expect to see in an organisation of this size. The line management oversight of case officers appears to be absent. Based on my own experience it seems to be that the line managers focus solely on protecting case officers while actually making matters worse for them as their workloads probably grow faster than they can cope with.

The ICO should have a small set of metrics about how it is dealing with cases. Surely line managers should be looking at cases where nothing has actually happened for 6 months and do something about it? The idea of management by exception has been around for a long time and yet I’m left with the impression that there are no exceptions set within the ICO and senior management have no impartial way of knowing what is actually going on at the case level.

People might wonder why this matters and that in these times of constrained budgets we should expect cases to take longer. I can’t accept this as one of the key drivers for the FOIA is that we get a chance to hold public authorities to account for their actions. For that to happen we need access to information while it is still relatively current.

It is generally known that there are certain large government departments that have very poor history in respect of FOIA. If someone requests information that these departments suspect will be embarrassing they will deliberately play the system to delay disclosure. From personal experience it’s all far too easy to do:

  1. Ignore the request completely until the ICO tells the department to respond (3+ months).
  2. Use the public interest test with impunity to introduce a 5 to 6 month delay before the requester can complain to the ICO about the exemption cited.
  3. 3 months before a case officer is assigned.
  4. At least 3 to 6 months before a DN is issued.

Total possible delay = 14 to 18 months.

The department can then appeal the DN to the First-Tier Tribunal (“FTT”), even if there is little chance of success. I’ve had 2 cases recently that have been appealed and then withdrawn just before the FTT hearing was due to take place. This added another 6 month delay let alone the cost to the public purse. If the DWP had actually gone through with the appeals and lost then that delay would probably be closer to 9 to 12 months.

This means that “playing the system” allows disreputable government departments to delay disclosure of embarrassing information by at least 2 years. Any media interest in the information can then be met with the claim that it is now ‘historical’ and things are better now.

A good example of this is the Project Assessment Review Reports (“PARs”) for the Universal Credit programme. I asked the DWP for these in April 2016 (see URL below):

https://www.whatdotheyknow.com/request/universal_credit_programme_proje#comment-82746

Using the delaying tactics described above and making the ICO issue an information notice to compel the DWP to release the PARs to them, they weren’t disclosed until March 2018. That’s a 2 year delay.

The ICO needs to sort out the internal delays that these government departments seem to be relying on. They also need to make sure there are meaningful consequences for public authorities that “play the system”. Writing strongly worded DNs telling public authorities off for abusing the system is meaningless. The ICO was highly critical of the DWP in its DN for the PARs case. A link to the DN is given below and the criticisms start at [62].

https://ico.org.uk/media/action-weve-taken/decision-notices/2017/2014762/fs50640285.pdf

The criticism has had absolutely no impact on the DWP.  It still regularly doesn’t reply in time and still produces “boilerplate” responses that have little bearing on the case in question.

As a result of the new GDPR and Facebook the Information Commissioner regularly seems to be in the media and was recently named as the most influential person in data-driven business in the updated DataIQ 100 list. I hear talk of the Commissioner being able to issue huge fines for data breaches and serving enforcement notices on organisations that are not complying with the FOIA.

The original white paper “your right to know” stated at [1.1]:

Unnecessary secrecy in Government leads to arrogance in government and defective decision-making. The perception of excess secrecy has become a corrosive influence in the decline of public confidence. Moreover, the climate of public opinion has changed; people expect much greater openness and accountability from government than they used to.”

If public authorities continue to be allowed to easily introduce delays of 2 years before disclosure then the regulator of the FOIA is failing in her role.  Before the FOIA we only had the thirty-year rule (now moving to the twenty-year rule) controlling when information was released to the public.

I suggest that we are rapidly approaching the situation where by default we have the “two-year rule” for information government departments do not want released. Unless the Commissioner does something about it that will slowly increase to the “three-year rule” and then the “four-year rule”. From my perspective its time the Commissioner stopped boasting about all the powers she has and started using them.

Live and Let Dai

To say that anything connected with GDPR is the worst example of its kind is a foolhardy business. I’ve read so many terrible articles, LinkedIn posts and Tweets about GDPR, to single any one of them out and say ‘THIS ONE IS THE WORST’ seems pointless. Most of them are bad. However, after watching 33 minutes of waffle, padding and gleefully misinformed bullshit, I am reckless enough to say that the intellectual property lawyer Dai Davis’ talk here is the worst presentation or talk I have seen about the GDPR in any format.

Admittedly, the trainer in me hated it because of the incompetence – Davis has to keep going back to the podium to change slides because he hasn’t brought a remote, and he pads the talk out with protracted questions to the audience that don’t add anything to what he is saying. When someone intelligent-sounding in the audience takes him on by asking a proper question, he runs a mile.

More seriously, a good chunk of the talk is taken up with an attempt to create a formula for how much you should spend on data protection compliance based on the likelihood of being fined. It’s an eye-catching and controversial thing to throw out in a conference, but I don’t believe even Davis knows what point he’s making. Is he really saying that a every organisation should spend a meaningless, averaged-out €2000 to comply with GDPR, or is that just a flourish? Every organisation is different to another, and will have radically different priorities and appetites for risk, so trying to create a standardised methodology is so random and unhelpful, I don’t think it’s a serious point.  Given the number of basic mistakes and baseless assertions he makes in such a short time, however, the only thing I can add to his calculations is that however much you spend on GDPR, you should probably not spend it on advice from him.

I may not have got them all, but here is as full a collection of all the blunders as I could manage:

  • Davis cannot remember how many deputies the Commissioner has, but he knows that it’s between 11 and 13. There are 3 deputies (James Dipple-Johnstone, Paul Arnold and Steve Wood); there have never been more than 3.
  • Davis consistently gets the name of the ICO wrong – it’s almost always the ‘Information Commission Office’, although he varies it at least once with ‘Information Commission Data Protection Officer’ (he wasn’t talking about their DPO). To be charitable, it might be because he’s talking quickly, but the errors are relentless. He clearly thinks that Elizabeth Denham’s job title is ‘ICO’. because he calls her this repeatedly, and talks about what he would do if he was “the ICO“.
  • He asserts that the GDPR is not a ‘step change’ from the old legislation solely because it has lots of words, even though many of those words are very similar to words in the same order in the old version
  • He notes that there has not been a GDPR fine yet. Davis was speaking on May 30th, two days after the first 72 hours to *report* a relevant breach would have elapsed.
  • He asserts several times that in theory “every single breach” has to be reported to the ICO. This is completely false. There is a specific definition of a breach in the GDPR and incidents that do not meet a certain threshold of risk do not have to be reported.
  • He says that telecoms companies had to report breaches to the ICO since 2012. Communications providers have had this duty since 2011, not just telecoms companies.
  • Davis claims that public sector bodies self-report breaches to the ICO because they have no idea about how to take a commercial risk. There is the problem that public sector bodies are not commercial organisations by and large, so that argument makes no sense, but it’s also factually incorrect. To take one example, NHS bodies (the example shouted out by an audience member) have been obliged by the operation of the Information Governance Toolkit to report breaches to the ICO since at least 1st June 2013 (I think it was actually earlier than this, but that’s the one given in a Toolkit document that Davis could have found with a single Google search if facts were something he had any curiosity about).
  • Davis claims that the ICO is not really responsible for prosecutions for S55 offences, despite talking exclusively about prosecutions that the ICO carried out.
  • He includes the prosecutions in his calculations for the risk of being fined by the ICO, seemingly unaware that fines and prosecutions are two entirely distinct activities, with S55 prosecutions being against individuals rather than organisations. Throughout, Davis talks about the ICO enforcing on ‘people’, so I don’t know if he knows that the penalties were issued against data controllers.
  • He says that there were 18000 complaints in 2016 and the ICO has done nothing about nearly all of them. As someone who thinks the ICO is crap, even I have to acknowledge that most of these complaints were resolved informally and the absence of a fine does not mean that nothing happened. In quite a few cases, the complaint would not have been valid, and so no action would be appropriate.
  • He twice says that the maximum penalty for a breach under the DPA 1998 was £5,000,000; it was £500,000.
  • He quotes the head of the ICO’s ‘Breach Notification Division’, which does not exist.
  • He claims that the GDPR contains more loopholes that requires the ICO to hire criminal lawyers. The standard of evidence for a GDPR breach is balance of probabilities, and GDPR removes the requirement to prove damage or distress for a monetary penalty.
  • He says the ICO has 700 staff – they haven’t recruited these staff yet.
  • He tells a story of how he tells his hotel clients (who, if they exist, have my pity) that they cannot claim to be GDPR compliant because they use “mobile telephones” and allow their staff to send text messages. According to Davis, it is impossible to use mobile phones securely.

At the point where Davis says “smart lawyers like me“, my jaw did not drop, it fell off.

Leaving aside how garbled and smug Davis’ performance is, you might wish to charitable and take on his central thesis – that you probably won’t get a GDPR fine. He’s right. There have been relatively few penalties under Data Protection thus far and so the risk of getting one is relatively small. I cannot disagree with this banal point because I have made it myself any times. However, I can’t tell if his conclusion is simply that nobody should bother complying or whether there would have been a ‘however, you should comply because…’ moment, because there isn’t a conclusion. Presumably because he has run out of time, Davis just stops. So what, Dai? What’s your point? What should the audience do with this information? Should they just ignore GDPR?  There’s definitely a sense of this when he says that 10 years from now, the owner of a B&B will not know what GDPR is.

If Davis had the guts or the discipline to get to a conclusion that GDPR doesn’t matter, that would have been something. His contempt for detail would still be an impediment, but ‘Ignore GDPR’ is an assertion worth tackling. I could counter by arguing that the threat of a fine isn’t a good reason to comply, but respecting human dignity and avoiding harm to real people though inaccuracy, intrusion and insecurity is, but Davis never stops circling the airport, so I don’t even know if that’s what he’s saying.

If his contention that organisations don’t have the ability to measure risk effectively and need to get GDPR in perspective, that’s actually a good point, but he makes it so incompetently that again I’m not motivated to take him on. I have grudging sympathy for the idea that reputational damage is an overhyped risk (again, it’s not a point he makes clearly), but I know that many in the Data Protection world would passionately disagree, and I suspect that they could use Facebook’s current woes as evidence that public perception over data misuse isn’t something that boardrooms can ignore.

In the end, I think Davis is a clever man pontificating about a subject he neither cares for or understands, but the danger is that people will watch the talk and be contaminated by it. You could argue that I am making it worse by drawing attention to it solely so I can take the piss. All I can say is, the talk is out there. People will see it. As this is the case, if you find his argument (such as it is) attractive, it’s worth pointing out how sloppy and ill-informed his thinking is. It’s worth asking if this is the ‘Ignore GDPR’ guy, why would you listen to him?

Cop out

On May 3rd 2018, Elizabeth Denham appeared on Channel 4 News as part of her long running commitment to generating headlines. Denham’s track record on the programme is not great – it was on the same programme in March that she adopted the interesting tactic (uniquely, as far as I can see) of informing an organisation in public and in advance that she planned to apply for a warrant to raid them, losing what might be a useful element of surprise in order to look tough in front of Jon Snow.

In the more recent interview, the Commissioner claimed that she had the power to fine directors and had done so. I made an FOI request about this, and the ICO admitted that “we do not have the power to directly fine directors“, directly contradicting what Denham said. You can tell me that ICO has the power to go after directors in limited circumstances that can result in a court issuing a fine and that must be what she meant (ICO did) but that’s not good enough. The DP regulator went on the telly and claimed to have a power she doesn’t have – it’s surely part of Denham’s job to increase understanding of Data Protection, not to muddy the waters.

In the same interview, Denham cheerily announced that she saw herself as a Sheriff of the internet. Arguably, she should be a Mountie but let’s leave that to one side. I assumed that the statement was a throwaway, not a serious statement of how Denham sees herself and her office. I was wrong. There’s a pattern. In a fawning profile by the Observer’s Carole Cadwalladr a few weeks ago, the Commissioner delivered a soundbite that I suspect is intended to epitomise the Denham Era: “Data crimes are real crimes“. And in the recently leaked DCMS Committee report into Fake News, she was at it again:

For the public, we need to be able to understand why an individual sees a certain ad. Why does an individual see a message in their newsfeed that somebody else does not see? We are really the data cops here. We are doing a data audit to be able to understand and to pull back the curtain on the advertising model around political campaigning and election

I think the misleading impression being created here could attract the label ‘fake news’ just as much as any of the internet nonsense Denham and her fanbase are supposedly against. Data crimes are usually not real crimes, and in most cases, the ICO are not the cops. The GDPR doesn’t make anything a criminal offence, and the offences under the Data Protection Act 2018, like those in its predecessor the 1998 Act, are specific. It’s a criminal offence to take, procure or sell personal data without the permission of the data controller; it’s an offence to re-identify depersonalised data (in circumstances so tightly defined I doubt there will be a successful prosecution), and it can be an offence to oblige someone to make a subject access request. Admittedly, the DPA 2018 is stricter in this area – offences under the DPA 1998 were not recordable so you wouldn’t get a criminal record if you committed them, a position that is sensibly reversed in the new version.

However, in some circumstances, the DPA 2018 is less oriented towards offences than the  DPA 1998. A breach of an Enforcement or Information Notice is no longer subject to prosecution, being punishable by a penalty instead. That might result in stricter punishments, but that depends on Wilmslow showing a willingness to use the powers, and in any case, it’s not a criminal sanction. The much-vaunted criminal prosecution of SCL by the Commissioner over David Carroll’s subject access request is doomed in my opinion, but if it goes ahead, it will almost certainly be the last prosecution for a breach of a notice. None of the DP offences are punishable with prison, and for all Denham’s bluster about being a data cop, she never publicly applies the pressure for custodial sentences. For all his faults, her predecessor Christopher Graham never missed an opportunity to do so.

If Facebook willingly shared its customers personal data with Cambridge Analytica, it would not be a criminal offence. If they reused their customers’ data and sold it to list brokers, it would not be a criminal offence. As drafted, the ‘victim’ of most data protection offences would be the data controller, not the person whose data is misappropriated, sold or misused. Denham wants to conjure up images of cops and robbers, but she’s misleading the public. Who knows, maybe she doesn’t want people to realise that the only sanction for the majority of data transgressions are monetary penalty that she has the power to approve. Maybe she means ‘data crimes should be real crimes‘, but if that’s the case, that what she should say instead of giving the wrong impression.

There’s another problem. By setting herself up as the Internet Sheriff, Denham is creating expectations I don’t believe she’s prepared to meet. In all her public appearances, the Commissioner is clearly trying to mark out the internet and new technology as her manor. Supporters like Cadwalladr are only too happy to play along. The Observer piece contains a brief but devastating verdict on thirty or so years of ICO work and four previous Commissioners: “a somewhat dusty regulator dealing in a niche topic“. I’m the last person to defend the ICO, but this writes off Wilmslow’s endeavours on phone hacking, union blacklisting, the lost HMRC data disks and many DP and PECR fines which even I can’t deny have changed behaviour for the better in many sectors. I can’t say that Denham endorses this trashing of her predecessors’ efforts, but she hasn’t repudiated it either. What must her staff think of it?

Strip away the recent headlines for prosecutions and £500,000 fines that haven’t actually happened yet, and Denham’s record is hardly the Data Protection equivalent of Wyatt Earp taking on the Clantons. When dealing with the misuse of 1.6 million people’s data by the Royal Free Hospital and the AI company owned by Google (exactly the kind of tech territory we’re supposed to believe she wants to police), Denham’s ICO asked the Royal Free to sign an undertaking. There is no automatic sanction if they go back on it. Faced with multiple instances of charities profiling potential donors in secret (not a million miles away from the kind of surreptitious data gathering that attracts her current ire), Denham’s response was reportedly to cut the originally proposed fines, such that Oxfam was fined just £6000. Late in 2017, Sheriff Denham issued an enforcement notice against the Ministry of Justice over shameful and long-running subject access backlogs that doubtlessly affected many people in desperate legal circumstances. She gave them eight months to comply and sneaked the notice out on the last working day before Christmas without a press release.

You can tell me that the ICO has consistently issued monetary penalties on Denham’s watch but so did Graham, though the double whammy of £400,000 CMPs on both TalkTalk and Carphone Warehouse weigh against my argument to some extent. But beyond those, Denham has done nothing revolutionary or interesting in enforcement. There has been no action on accuracy or retention, and little on the vital first principle beyond the charity cases that were obviously started under Graham.

Outwardly, Denham seems poised and plausible. Fate has dealt her the biggest data protection story in a decade and some overly sympathetic press coverage, so maybe she’s right to milk it and build up her part. There’s no question that she has a higher public profile than any of the Commissioners who have gone before her, and I know a lot of people in the DP world who think that this is automatically a good thing. I’m not convinced. I think ‘data crimes are real crimes’ could become as unhelpful a distraction as the pervasive ‘GDPR = consent’ myth, and nothing about the past two years convinces me that Denham really has what it takes to round up the internet’s outlaws. As always, I will delighted to be proved wrong; some eyecatching monster scalps is what I have spent years of blogging asking for, and it will make my job easier for the next few years. But unless she really pulls out the big guns, the Commissioner’s legacy may be less Gunfight at the IT Corral, and more Denham’s Last Stand.

 

Checks and balances

A while ago, I was asked by a prospective client to provide a criminal records check before getting a big piece of work. Given that I wouldn’t be handling any personal data or getting access to children or other vulnerable people, it seemed like overkill. The awkward part of me wanted to suggest that the requirement was close to being an enforced subject access request, which would be a criminal breach of Data Protection law. Enforced subject access requests occur where a person is obliged to provide a data controller with the result of a subject access request for criminal records in return for employment or a service.

Then I looked at the number of days’ work they were offering and the pragmatic part of me kicked in. I don’t have a criminal record, so I applied for and sent them a disclosure certificate saying so. It occurred to me that if I tried to make an issue of principle out of it, it might look like I had something to hide. I imagine it’s a terrible situation to be in if you have got a record and are trying to move on, but to be selfish, I don’t and it seemed odd to create the impression that I might have. And I wanted the work.

Last week, a prosecution by the Information Commissioner against the insurance company Hiscox for the enforced subject access offence collapsed. A customer, Irfan Hussain, was attempting to claim on a £30,000 watch he had lost, and Hiscox wanted to see his criminal record before paying out. He refused, and complained to the ICO. The case collapsed when the unlucky horologist was too unwell to give evidence.

I can’t help thinking that this was an odd choice for a prosecution. Even if Hiscox tried to force their customer to provide his information, was this unreasonable? He had already stated that he had no criminal record (according to the FT), so all Hiscox were apparently asking him to do was prove that what he had said was true in the light of his claim. The means by which they proposed to do it might technically have been an enforced subject access request, but there’s surely a difference between something technically being an offence and it being worth mounting a prosecution on it. The provisions contain a public interest defence, and Hiscox’s public comments after the trial suggest that this was their strategy. I suspect it might have worked. Especially as this seems to be the ICO’s first attempt at an enforced subject access case, was this really the best place to start?

The business of criminal records checks overall works in mysterious ways. Hiscox are reported to have asked Mr Hussain to make a subject access request to the Criminal Records Office, which is run by the National Police Chief’s Council. This is not the same as applying to the Disclosure and Barring Service or Disclosure Scotland for a certificate or a disclosure, but having been through the process, I have to admit that I am somewhat confused at the difference.

To get my disclosure, I made a written application, proved my identity and then paid a fee to receive a copy of personal data that related to me, or confirmation that no such information was held. The basic check comes through faster than a subject access request (about 2 weeks, although mine came in matter of a few days) but it’s also more expensive (£25). In my case, nothing was held but that’s neither here or there. There is statutory provision for access to this information via the Criminal Records Bureau set out in the Police Act 1997, replaced by the Disclosure and Barring Service in 2006 via the Safeguarding Vulnerable Groups Act 2006. Someone is going to tell me that applying for a certificate is different to applying for subject access, but that raises some questions. If Hiscox had told Mr Hussain to apply for a certificate like I did, it’s exactly the same outcome – a person is obliged by a data controller to obtain information about their criminal history and then cough it up – but if it’s not subject access, no prosecution could be possible.

An individual can obtain a basic check that shows their unspent convictions and cautions, both of which are listed as a relevant record in the DPA section that creates enforced subject access. The ICO’s guidance doesn’t explain the position if a person was forced to ask for a basic check. That check might not give everything that a data controller might want, but it’s full information about a person’s recent criminal history. If obliging someone to ask for a basic check isn’t enforced subject access, it’s a loophole. But if a basic check is essentially a subject access request by another name, it shouldn’t be £25 now, and it should be free after May 25th.

It’s clear that the DBS doesn’t think that forcing an individual to ask for a basic check would be enforced subject access or illegal in some other way because their website says this:

You can’t carry out a basic check as an organisation – you must ask the person to request their own basic DBS check. A basic check shows unspent convictions and cautions.

This implies that asking a person to carry out a basic check when you can’t make an application yourself is acceptable, even though these are very likely to be circumstances where a person can’t meaningfully refuse. There are no warnings about compulsion during the application process via the DBS website. So why is a subject access request to ACRO magic, acceptable only when uncontaminated by duress, but a basic check isn’t? The amount of data disclosed isn’t exactly the same, but the outcome – being forced to disclose your criminal history when it might be unnecessary or excessive to do so – might be identical.

It took a long time (from 1998 to 2015) for enforced subject access to be fully enacted. Now it’s in force, the Hiscox case doesn’t give cause for optimism that anything will change. I have doubts about whether it was a good idea to prosecute Hiscox, but I have heard first hand terrible stories over the years about data being demanded when it should not have been. Having used the system, the way in which criminal records are made available gives me little confidence that such unnecessary and unfair demands for personal data are properly prevented. After the failure of the Hiscox case, even if only because of an ill-timed illness, the ICO needs to go in again and draw a line somewhere.

Summit to hide?

On at least three occasions in the past year, a member of staff from the Information Commissioner’s Office has spoken at conferences organised under the banner of GDPR Conference or GDPR Summit. Garreth Cameron has appeared twice, and Lisa Atkinson was at the latest event on October 9th. Nothing odd about this, you would think – the ICO clearly wants to spread its message (such as it is) to a wide audience, and conferences are a way to do it. They should be wary about showing favouritism and they’re not very good at avoiding it – a certain Assistant Commissioner often appears at a certain training company’s courses, and appearing three times at one company’s commercial events comes close to being an endorsement.

But even if such regular support for a conference would otherwise be justified, in this case, I don’t think it is. It’s not easy to find out from the GDPR Summit website who is actually organises the conferences. A little bit of digging suggests that it is a company called Amplified Business Content. Amplified Business Content is also responsible for ‘GDPR Report’, which used to publish articles for free but has now gone to a subscriber model. Having an opaque company structure isn’t compliant with Data Protection because it’s not clear who the Data Controller is. Moreover, some of the material on their website is garbage – they have published quizzes with wrong answers, and harvested information without a privacy policy (though I noticed that after people on Twitter made a fuss of it, they stopped demanding email addresses to get scores on the quiz). Via GDPR Report, the organisation has pumped out reams of vague, badly-written stories including one titled ‘The Data Protection Apocalypse’ that claimed that organisations need consent for all processing – it was so bad that after a morning of criticism via Twitter and other sites, they had to delete it. Worst of all, Amplified Business Content has not notified the ICO under Data Protection – unless they are exempt (which for a conference organisation is hard to believe), this is a criminal offence.

Given that the ICO have given Amplified Business Content so much support, I wondered whether they had done any due diligence on the organisation before agreeing to speak at their events. Under FOI, I asked for the following:

Any information about due diligence carried out by the ICO before accepting invitations to speak at these events, including whether ICO staff checked if the company had a notification, and whether their materials and publications were accurate and reflected the ICO’s approach to the GDPR

Any procedure that requires ICO staff to carry out due diligence before accepting speaking engagements

The answer was that no information was held. The best they could offer was “We apply our speaking engagement policy here when making a decision whether or not to accept a request for a speaker“. Needless to say, the speaking engagement policy does not include any requirement to carry out due diligence. In other words, the fact that Amplified Business Content has not notified and has spread misleading and unhelpful information about a Data Protection apocalypse is irrelevant to Wilmslow. They’re not even expected to check whether the organisation has taken the most basic steps to comply with Data Protection law. This is remarkable, especially at a time when so many dodgy people have flooded into the Data Protection market.

Their answer to the first part of my request was more interesting, and more worrying. I asked for:

All correspondence between the ICO and Amplified Business Content or those purporting to represent GDPR Conference or GDPR Summit or GDPR Summit Europe (or other variations on the theme of GDPR Summit).

I’ve done this before, both with the Privacy Laws and Business Conference (which led to this blog) and True Swift, another organisation for whom the ICO has done several online courses. Both times, the ICO gave me detailed correspondence between themselves and the organisation, which allowed me to see, among other things, Stewart Dresner of PLB complaining that he doesn’t have special access to news about ICO activities. This time, however, the ICO has refused to give me any of the correspondence. The exemption they used is a prohibition on disclosure that applies when organisations supply data to the Commissioner when information “has been obtained by or furnished to the Commissioner under or for the purposes of the Information Acts”. In other words, ICO claims that when arranging their spots at the GDPR events, they were exercising their functions under the Data Protection Act. Needless to say, the refusal doesn’t say which function they were exercising – presumably I am expected to guess. I think the only function that could apply is the duty to promote the following of good practice under Section 51, but the idea that Parliament intended conference arrangements to be secret is a fairly bizarre idea.

Only two possibilities present themselves. The first is that the ICO’s policy is only to release material such as this with the consent of the organisation (which the prohibition allows), so PLB and TrueSwift consented to the disclosure and Amplified Business Content refused, which begs the question of what ABC have to hide. Their internal business arrangements are nobody’s business but theirs, but when dealing with the regulator, they should expect to be more open. I’ve made fun of Dresner following the disclosures, but the emails I received didn’t show him or his company doing anything inappropriate – the only criticism I’ve got is that the ICO should hold all organisations at arms length.

The other possibility is that the ICO is being inconsistent. They didn’t use this exemption before, but there is something awkward or embarrassing about their relationship with ABC that they want to cover up. Either way, it isn’t a good look for the transparency regulator to be hiding information about its dealings with a private company. The prohibition allows data controllers and public authorities being investigated for DP and FOI breaches to provide secret business information to the Commissioner with the confidence that it won’t be disclosed. This is entirely justifiable – otherwise, no organisation would ever give the ICO information they had withheld from an FOI or subject access applicant in case the applicant then tried to use FOI or DP to get it from Wilmslow.

This case is very different. The ICO has scant resources, and yet has regularly provided speakers to a commercial company with a spotty approach to Data Protection and is using the prohibition on disclosure to prevent legitimate scrutiny of their relationship. The prohibition does allow disclosures that are ‘necessary in the public interest’ – given ABC’s dissemination of scaremongering articles and possibly illegitimate non-notification, I am convinced that the public interest does support transparency here. Of course, the ICO might argue that if they disclose, this will deter conference organisers and others from approaching them – but who cares? This is far from a core activity for the Commissioner. If you’re not willing to be open in these circumstances, what has anyone involved in this got to hide?