UK: Personal Data Security Breaches: Fines from the ICO

Last Updated: 21 March 2011
Article by Calum Murray

In February 2010 we reported on the new powers of the Information Commissioner's Office ("ICO") to impose penalties on data controllers who commit serious contraventions of the data protection principles. See www.kemplittle.com/html/stay-posted/publications/short-lines/personal-data-security-breaches-at-what-cost-february-2010.html

Since 6 April 2010, the ICO has been able to issue monetary penalties up to a maximum of £500,0001 for serious breaches of the Data Protection Act 1998 ("DPA"). These powers were introduced by Criminal Justice and Immigration Act 2008 ("CJIA") which inserted a new section, s55A, into the Data Protection Act 1998. In November 2010, the ICO issued its first two Monetary Penalty Notices utilising these new powers.

Hertfordshire County Council

In June 2010, an employee of the council's childcare litigation unit sent a fax containing sensitive personal data to an incorrect fax number. The faxed documents contained information relating to a child sexual abuse case being heard in the High Court London. The documents were intended to be sent to a barristers' chambers but were in fact received by a member of the public. The fax contained no header sheet informing the recipient who the intended recipient was and what to do in the case of a misdirected fax. Both the council, as data controller, and the member of the public contacted the ICO.

Following this first incident, and while the ICO was investigating this incident, a further incident occurred whereby further documents containing sensitive personal data relating to ongoing care proceedings were faxed by the childcare litigation unit to a barristers' chambers that were not involved in the case, rather than Watford Country Court who were the intended recipient. The council was informed of the error and the ICO was notified of the further inadvertent disclosure.

Following its investigation, in November 2010, the ICO issued the council with a Monetary Penalty Notice of £100,000. It found that there had been serious breaches of the seventh data protection principle in that appropriate technical and organisational measures had not been taken to safeguard against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data. Furthermore the sensitive personal data was of a nature that would cause substantial damage and distress to the data subjects, and could prejudice the court cases to which the data was relevant to.

A4e employment services

A4e Ltd, an employment services company, were contracted by the Legal Services Commission ("LSC") to operate various Community Legal Advice Centres in Hull and Leicester. Under this contract, A4e were obligated to produce certain reports to the LSC, some of which contained personal data and sensitive personal data.

In June 2010, an employee was working from home on such a report on a laptop provided to her by A4e. The laptop was only protected by a password. The employee's house was subsequently burgled and the laptop was stolen. At the time the laptop was stolen, it contained personal data and sensitive personal data of 24,000 clients of the legal advice centres, including names, addresses, date of births, ethnicity, employment status and income level. The laptop was never recovered, and there was evidence that the laptop had been attempted to be accessed after being stolen on at least one occasion, although this was believed to be unsuccessful.

Although A4e were contractually obliged to encrypt the data contained on the laptop, it was not protected in this way. Furthermore, while the employee in question had been provided with A4e's relevant IT policies governing use of this type of data, the employee was not following these nor had the employee undergone any training in relation to such policies.

In November 2010, the ICO issued A4e with a Monetary Penalty notice of £60,000. It found that A4e had failed to take appropriate technical and organisational measures against the accidental loss of personal data held on the laptop computer such as encrypting the laptop computer and providing the employee with appropriate physical security devices for the laptop computer. Furthermore the personal data and sensitive personal data related to a large number of data subjects and the unauthorised disclosure was likely to cause substantial damage and distress. The nature of this data and the fact that A4e had various written policies governing the use of such data meant, meant that A4e was aware of the risk of losing personal data and sensitive personal data, and should not therefore have issued a laptop to an employee which was intended to be used with such data without appropriate encryption measures first being put in place.

Closing thoughts

In considering the actions of A4e, the ICO took the opportunity within the penalty notice to reiterate its guidance issued in November 2007 on the use of laptop computers containing personal data which states

"...There have been a number of reports recently of laptop computers, containing personal information which have been stolen from vehicles, dwellings or left in inappropriate places without being protected adequately. The Information Commissioner has formed the view that in future, where such losses occur and where encryption software has not been used to protect data, enforcement action will be pursued..."

From this statement is difficult to see how data processors cannot regard themselves as being on notice as to the very dim view the ICO will take of data losses where appropriate security measures are not utilised.

Both the Hertfordshire County Council and A4e cases involve inadvertent disclosures of both personal data and sensitive personal data in June 2010. This was only two months after the ICO's new powers became available. It would appear that the ICO intends to use these powers in response to serious breaches of the DPA with little hesitation. Both cases serve as stark reminders that the obligations placed upon data controllers by the DPA are not to be taken lightly. The A4e case in particular highlights that it is insufficient to have written policies in place which seek to pay lip service to the data protection principles. These policies must be implemented with procedures in place to ensure such policies are being adhered to or real fiscal impacts may follow.

Footnote

1. The Data Protection (Monetary Penalties) (Maximum Penalty and Notices) Regulations 2010 (SI 2010/31)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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