The Secret Seven

Last year, I wrote about the fact that Councillor Alex Ganotis, Labour leader of Stockport Council is also a group manager at the Information Commissioner’s Office. After an FOI request, the ICO admitted that he managed the teams responsible for complaints about political parties and local councils. At the time, I argued that this was an unacceptable conflict of interest, and something had to be done about it.

In May this year, shortly after being elected as Manchester’s new Mayor, Andy Burnham appointed Cllr Ganotis as his Environmental Tsar. You can watch a video of the announcement here, and ponder such fascinating questions as why Burnham’s nose is so red, or why throughout the first two minutes, the camera keeps cutting to a wide shot that captures Ganotis’ uncomfortable facial expressions while Burnham is talking. The announcement piqued my interest. If he was organising a grand summit of environmental worthies, would Cllr Ganotis really have time to work at the ICO? And if so, what effect would the review into political activities that Elizabeth Denham announced have on his role?

I made an FOI request to the ICO for the following information:

1) In 2016, the ICO confirmed to me that Alex Ganotis was manager of the team that dealt with complaints about councils and political parties, despite being Leader of Stockport Council at the time. Can you confirm whether Mr Ganotis is still a member of ICO staff, and if so, what is his current job, and what arrangements have been made to avoid any potential conflict of interest?

2) What is the current ICO policy and process for dealing with political party affiliations and potential conflicts of interest?

3) In August 2016, the Information Commissioner announced in an interview with the BBC’s Martin Rosenbaum that she had ordered a review of the involvement of ICO staff in political activities. I would like to see any report or findings arising out of the review, or other summary of the review and its findings, and details of any actions that were taken as a result of it.

4) I would like to receive all current declarations made by any member of staff of involvement in political activities

5) What specific measures have been taken in respect of each staff member who has made a declaration to ensure that there is no conflict of interest?

The response made for fascinating reading. For one thing, Cllr Ganotis remains a Group Manager at Wilmslow and although his group no longer deals with political parties, it still covers issues related to all local authorities in the UK except for those in Greater Manchester, Cheshire or Derbyshire. How politicians and others in every council outside the North West feel about complaints about their authorities still being supervised by the Leader of a Labour Council and a close ally of Andy Burnham is hard to judge. They might be thrilled. Maybe the ICO should ask them.

The report I received under item (3) of my request did contain an option to remove Cllr Ganotis from work involving local authorities altogether, but one of the reasons that this option was not recommended was the fact that “it could be seen to question the professionalism of Alex and other members of staff and their ability to apply the law without bias or political influence“. How Cllr Ganotis’ political career could possibly be seen to reflect on other people is beyond me, but it is jarring that a significant factor in the decision to keep him involved in council work might have been the effect on him, rather than the Commissioner’s ability to operate independently. To be blunt, the ICO as a whole is more important.

UPDATE: I have attached the ICO’s report into the conflict of interest here, so readers can judge whether how objective and balanced it is: Commissioner Information Note – Political Activities.pdf

Unless every team in the ICO handles complaints about local authorities (and to lesser extent, government), Cllr Ganotis should have been moved to one that doesn’t. Having decide to pursue a high-profile political career, asking him to make a sacrifice to avoid conflicts of interest and their perception would not be too much. I am surprised that Cllr Ganotis has not requested such a transfer himself. To risk even the perception of influence over decisions about politically-run organisations, and at the same time pursue a high-profile political career suggests either an enormous amount of faith in one’s ability to compartmentalise, or just old fashioned hubris.

The review identified gaps in the ICO’s Political Activities Policy, with recommended “updates” including a stipulation that staff must avoid party political activities which might impair their ability to perform their duties impartially, a requirement to inform the ICO if their activities or areas of responsibility change, and the scope to remove permission to undertake political activities if an individual’s ICO role or political activity changes. Needless to say, this means that none of this existed before.

The rest of the FOI request suggests a continuing unwillingness to face the issue of political involvement. Including Cllr Ganotis, eight staff members have made declarations of involvement in political activities, but the ICO refused to tell me who the other seven are, or what they do, claiming that the data is sensitive personal data. This is true, but it is not automatically a barrier to disclosure. For one thing, the Secret Seven could be asked for consent, and this is not the only route to disclosure.

There is surely a legitimate interest in knowing whether people working for an independent regulator such as the Commissioner have political affiliations, especially when you consider the ICO’s involvement in political matters. Over the past few years, the ICO has fined Leave.EU, David Lammy MP over his London Mayoral Campaign, the Daily Telegraph for its pro-Tory emails during the 2015 election, and in recent months, they took no action against Virgin Trains following Jeremy Corbyn’s antics in a train vestibule. More importantly, the Commissioner herself announced a formal investigation into the use of data analytics for political purposes with no small amount of fanfare, involving 20 staff. The ICO is knee-deep in politics and transparency over the declared political activities of the staff is in the public interest.

As the data is sensitive personal data, legitimate interests would not be enough; a condition must also be met from Schedule 3 of the Data Protection Act as well. One of the conditions is that the Data Subject has put their sensitive data into the public domain. If, for example, a senior ICO staff member was to mention on their LinkedIn page that they were a Councillor for 9 years, the Campaigns and Communications Officer for an MEP for five years, listed the Liberal Democrats as one of their main interests and was recommended for ‘politics’ and ‘political campaigning’ by dozens of people, I think I can argue that at least this one has manifestly made their political views public. The ICO refusal says “our staff do not have a reasonable expectation that their declarations would be disclosed into the public domain“, but the staff member in question was a candidate for the LibDems in the 2015 General Election, so I humbly suggest that the cat is out of the bag. Either this person is one of the seven, and the ICO’s arguments are false, or they haven’t made a declaration, and the ICO’s claim to me that “the review and policies are sufficient to demonstrate that we avoid conflicts in our work” is nonsense. Again, did they consider this before refusing me?

Every national, local, or internal party election or referendum runs on personal data, and personal data is exploited, analysed, shared, lost, stolen and misused in every single one of them. If you can name a major vote in this decade that hasn’t resulted in a DP snarl-up, you’ve a better memory than me. If there is one word that shines through everything the Commissioner sent me on this topic, last time and this time, it’s  complacency. The policies and procedures that existed before and the ones that have replaced them are built on an obvious assumption that a box needs to be ticked. Of course nobody is actually going to do anything untoward, the managers are on top of it, staff will proactively declare any conflicts of interest and besides, we have a procedure. But they thought it was all fine before. If I had not written my blog last summer, Cllr Ganotis would still be responsible for managing complaints involving his council, his party and his opposition.

I don’t think the Commissioner’s Office takes this seriously. I am amazed that Alex Ganotis is still allowed any influence over the ICO’s decisions about local government, regardless of how objective or benign that influence might be. I am appalled that anyone in the ICO’s senior management could think that this is acceptable. Every time the Commissioner acts or doesn’t act on a political issue, do we always need to ask: who was involved? What bias, conscious or unconscious, did they bring to bear? What other interests do they serve? In a world dominated by fake news and internet froth, the ICO’s independence and objectivity should be their highest priority. It isn’t.

Advertising standards

This week, the great and the good and some other people descend on Cambridge for the 30th Annual Privacy Laws and Business’ three day Data Protection Conference in Cambridge. It’s a big event, with Data Protection regulators, practitioners and a large collective noun of DP lawyers all milling around St John’s College listening to each other talk. I’ve only been once – no employer I’ve ever worked for wanted to pay, so I ended up pitching PLB a talk about crap Data Protection stories so I could get in for nothing. The cheapest possible ticket is a one day option for charities and the public sector at £437.50 +VAT; for 3 days, that goes up to £1242.50 + VAT, while someone working for a company with more than 500 employees will pay £1775 + VAT, plus more for accommodation or the optional Sunday night dinner. The college bars have extended opening hours in case you have more money to burn.

As PLB’s amusingly vulgar marketing makes clear, this is no dry academic event. For attendees with the requisite funds, the conference is an opportunity to ‘take your place at the privacy top table‘ and enjoy ‘Privileged Access‘ to the various Data Protection regulators in attendance. Emails from PLB promise that DP Authorities such as Helen Dixon from Ireland, Isabelle Falque-Pierrotin from France and our very own Elizabeth Denham will be available for ‘priceless informal one-to-one discussions’ and will be ‘pleased to engage you in discussion‘. Imagine that.

The UK’s Information Commissioner is being particularly accommodating this year. As well as being listed on the conference website as a ‘Supporter’ of this commercial event, the Commissioner herself is giving a talk on Tuesday and chairing another session while no fewer than five ICO staff members will be in attendance (a fact advertised by PLB in the ‘top table’ email). Perhaps most generously of all, Mrs Denham is the star of an advert for the conference, happily plugging the relaxed atmosphere and expert PLB staff while exhorting viewers to attend. And this is where I have a problem.

There’s nothing wrong with the ICO appearing at commercial events like this – big conferences are a legitimate way to make the organisation more visible and get messages out. It’s very different if the ICO is endorsing the event in question. The PLB conference is not a charity or public sector event – it is a commercial conference run for profit. The ICO’s speaking engagement policy says explicitly that ICO officers should avoid accepting invitations where ‘our attendance can be interpreted as ICO endorsement of a commercial organisation over those of competitors‘, and yet Denham has gone further than that, by actively promoting the conference and the expertise of PLB’s staff. The same policy states that the ICO logo must not be displayed when labelled as a ‘supporter’ – which is exactly what PLB are doing with the logo on their website.

I made an FOI request to the ICO about Denham’s appearance in the advert, asking for emails and other correspondence about why she agreed to do it. In the initial response, there was no evidence of an invitation, only emails arranging the filming itself. When I queried this, I was told that the original request was made and agreed to verbally last October, and while there may have been some follow-ups by email shortly thereafter, they will have been deleted because the ICO deletes all emails from everyone’s inbox after six months. So Denham, who famously burnishes her records management credentials, didn’t think it was worth keeping a record of why she had decided to endorse a commercial event, despite breaching her own speaking engagement policy and code of conduct by doing so.

The correspondence I did get was nevertheless illuminating. When I made my request, I used the word ‘advert’ because PLB were describing it as a ‘conference video’ and I wanted to underline what it really was. However, the word ‘advert’ is used routinely by ICO staff in their emails – there is no question that Denham and her staff perceived it as being something else. The content of Denham’s turn came directly from Stewart Dresner, PLB’s Chief Executive. Even specific phrases that she uses (the sickly ‘summer school‘ for example, at which she at least has the decency to laugh while saying) come direct from one of his emails to her. After it was filmed, Denham was keen to check that Dresner thought the video was OK, and he replied with a sentence that should have pulled everyone up short: “I greatly appreciate you taking this step and so effectively endorsing several important features of our conference” (my emphasis). The ICO is an independent regulator; endorsing commercial products or events should be beyond the pale. The ICO’s code of conduct is obviously based on the Civil Service Code, but they have adapted it in a key passage. The Civil Service Code says that officers should not use information they have obtained in the course of their work to favour others, but the ICO goes further:

You should not misuse your official position, or information acquired during the course of your duties, to further your private interests or those of others

If you are a member of the senior management team, or a member of staff who is either working on a contract or dealing with issues which could raise matters of substance, you should ensure that any possible conflicts of interest are identified at an early stage and that appropriate action is taken to resolve them.

 

Senior officers like Robert Parker, the ICO’s head of communications, and Steve Wood, recently appointed Deputy Commissioner after Rob Luke’s mysterious cameo appearance, were involved throughout this correspondence. Even if Denham didn’t think an endorsement could be problematic, her staff should have intervened. Most of the ICO’s senior management were at least copied into the emails I’ve received, and none of them identified a problem in the Commissioner personally endorsing a commercial event in breach of her own policies. There is a telling moment in the correspondence where Dresner complains that PLB were not aware of Denham giving evidence to Parliament. Dresner’s expectation is that PLB will be tipped off about such appearances: “we do suggest that you distinguish between your mass media list, who would receive some media releases, and your specialist media list, who would receive all of them“. It’s clear that Dresner expects special treatment – and why wouldn’t he? The Commissioner herself is advertising his conference.

Nobody at the ICO would ever recommend anything that I did or was involved in because I write stuff like this, so you might think this is all just sour grapes. Given that I don’t think the ICO is an effective regulator, I couldn’t seek their approval even if they would give it but in any case, I don’t want Wilmslow’s endorsement. If I have anything going for me as a itinerant jobbing consultant, it’s that I am independent and I encourage the people I deal with to think and act independently. What’s distasteful about this episode is that the Commissioner, for whom independence isn’t a bonus but a necessity, doesn’t seem to act in the same way. Using the regulator’s name to flog conference places should be inconceivable, and yet this is what Denham has done. However prestigious or expert they may appear, the Information Commissioner should not personally or corporately recommend or endorse commercial products and organisations. This shouldn’t have happened, and it must not happen again.

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.

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.