UK: Data Protection And Privacy Newsletter - May 2013

ICO provides new guidance on the Freedom of Information Act

The ICO has published a number of new and updated guides relating to the Freedom of Information Act 2000 (FOI Act). These include:

末 Revised guidance explaining to central government departments how to apply the exemption to disclosure contained in section 35 of the FOI Act, which is designed to protect good government and ensure a safe space forpolicymaking and ministerial communications

Guidance on the issues to consider if the requested information (or related information) is already in the public domain, particularly focusing on howthis will affect exemptions and the public interest test

Guidance on how to deal with requests for information which includes the personal data of several different data subjects, one of which is the requester, covering both the FOI Act and the Environmental InformationRegulations 2004 (EIR)

Guidance explaining the impact of regulation 43 of the Public Contract Regulations 2006 (which, subject to certain conditions, protects theconfidentiality of information forwarded to a public authority by a contractorduring a procurement exercise) on the disclosure of information under boththe FOI Act and the EIR

Guidance explaining how to deal with requests for information about deceased persons under both the FOI Act and the EIR

末 Revised guidance on the prejudice test and the public interest test, which are used in certain exemptions in the FOI Act, and how exceptions and the public interest test work in the EIR

末 Revised guidance on the exemption to disclosure contained in section 36 of the FOI Act (which relates to disclosure that would prejudice the effectiveconduct of public affairs), to reflect developments in the ICO's approachto "safe space" and "chilling effect" arguments in line with the section 35guidance referred to above

末 Revised guidance on the exception for internal communications contained in regulation 12(4)(e) of the EIR, to clarify that communications between agovernment department and non-departmental public bodies will not becaught by the exception and to reflect developments in the ICO's approach to"safe space" and "chilling effect" arguments

"The Guide to Freedom of Information"and "The Guide to the Environmental Information Regulations" which have been updated toinclude new guidance on what constitutes a valid request for information,clarifying that this is not a hard test to satisfy. Most requests for informationwill trigger the FOI Act or the EIR, even if they are vague or otherwise difficult to answer

ICO discusses current issues with the EU data protection reforms

The ICO has published a blog post discussing current issues surrounding the EU's proposed data protection law reforms.

The blog post discusses the speech of the Director General of the European Commission's Justice Directorate, Francoise Le Bail, at the ICO's recent annual conference for data protection officers. Ms Le Bail sought to dispel concerns that the new EU data protection legislation will be too prescriptive, and suggested that the European Commission was listening to the feedback received on the data protection law reforms and was willing to adopt a more risk-based approach (as has been suggested). This would mean, for example, less emphasis on a local butcher having to draft a data protection policy before compiling a customer list and greater focus on how health institutions store the personal details of patients.

David Smith, Deputy Information Commissioner and author of the blog post, describes how the ICO has reservations about some of the proposed data protection reforms. In particular, the ICO is concerned about the additional flexibility currently being proposed for the public sector, the increased role of data protection authorities (such as the ICO) in approving arrangements for the protection of personal data when it is being transferred internationally and the potential impact of changes to the way in which data protection authorities will be funded. These concerns are shared by other data protection authorities across Europe.

According to the post, another key issue surrounding the reforms is pseudonymisation. This is suggested as a way forward in the move towards a more risk-based approach. By disguising identities, data relating to individuals may be collected and analysed without the person's identity being revealed. Through this technique, the information would not be readily identifiable and businesses could thereby potentially avoid some of the pressures of the new data protection laws. It is not proposed to change the concept of "personal data" but, rather, the possibility of using pseudonymous data to allow lighter obligations for data controllers is being explored. The ICO is supportive of this approach.

In terms of the timing of the reforms, the ICO reports that the European Commission seems publicly confident that it can do a deal, working with the Irish Presidency of the EU, leading to agreement on the reforms in June 2013. However, the ICO points out that a European Parliament vote on the draft legislation has been rescheduled for 29 May 2013, to allow more time for political compromises on more than 3,000 proposed amendments. The ICO remains hopeful that the EU data protection reforms will be passed towards the end of the year.

Google fined by German data protection authority in connection with Street View data collection

Google has been fined EUR 145,000 by the Hamburg Commissioner for Data Protection and Freedom of Information for the unauthorised capture and storage ofpersonal data in connection with its Street View project.

Between 2008 and 2010, whilst taking photographs from vehicles for its Street View service, Google collected data from unencrypted wireless networks within range of the photographing vehicles. The captured information included large quantities of personal data, including emails, passwords and photos.

The Hamburg Commissioner for Data Protection and Freedom of Information held that Google had, negligently and without authorisation, captured and stored personal data. Google has confirmed that the illegally captured data has, as was instructed by the Commissioner, now been deleted. In the opinion of Johannes Caspar, the Hamburg Commissioner for Data Protection and Freedom of Information, "this is one of the most serious cases of violation of data protection regulations that have come to light so far". The Commissioner suggested that the sanctions provided by the German Federal Data Protection Act (up to EUR 150,000 for negligent and up to EUR 300,000 for intentional breaches) are "totally inadequate for the punishment of such serious breaches of data protection" and unlikely to have a deterrent effect. The Commissioner is therefore supportive of the proposed European Data Protection Regulation, which currently contemplates a maximum fine of 2% of a company's annual turnover for breaches of the Regulation.

GP practice provides undertaking to the ICO following email attack

A GP practice which used a free web-based email account primarily for arranging and reporting on smear tests for female patients between the ages of 25 and 65 had its email account hacked. The practice became aware of the issue when patients reported receiving emails claiming to be from a doctor at the practice, asking them to provide their bank account details. The data stored in the email account, which had been placed at risk as a result of the attack, included a list of names and email addresses of approximately 175 of the practice's patients. This data therefore included both personal data and sensitive personal data as defined in section 2 of the DPA.

Sensitive personal data needs to be treated with greater care than other personal data. In particular, if an entity is processing sensitive personal data it must satisfy one or more of the conditions for processing set out in Schedule 3 of the DPA which apply specifically to sensitive personal data, as well as one of the general conditions which apply in every case which can be found here. The nature of the data is also a factor in deciding what security is appropriate.

As well as the conditions set out in the DPA there are also regulations which set out several other conditions for processing sensitive personal data. A full list of the additional conditions for processing is set out in the Data Protection (Processing of Sensitive Personal Data) Order 2000 and subsequent orders.

The ICO determined that the email service provider used by the practice was inappropriate for communicating the outcome of the smear tests, and the practice had failed to ensure that appropriate measures were in place to provide an adequate level of protection for the personal data and the sensitive personal data. The practice also did not have an adequate data protection training programme in place, and its information security policy and procedures in respect of the protection of personal data were lacking and of sensitive personal data.

As remedial action, the ICO accepted an undertaking from the GP Practice concerned:

(1) to adopt a secure mode of communication to provide test results;

(2) not to send clinical data by email unless the security of such transfers can be assured;

(3) to put in place an adequate security policy to cover the secure transfer of patient data and to make all staff aware of that policy and to train all staff how to follow it;

(4) to require all those whose role involves the processing of personal data on behalf of the practice to undertake relevant training;

(5) to monitor regularly and appropriately compliance with the practice's policies on data protection and IT security issues; and

(6) to implement other appropriate security measures to ensure that personal data is protected against unauthorised and unlawful processing, accidental loss, destruction and/or damage.

ICO announces monitoring of three public authorities over FOI Act responses

According to a news release published by the ICO, the Metropolitan Police Service, the London Borough of Barnet and Manchester City Council are being monitored for a three month period until 30 June 2013 in light of concerns about the timeliness of their responses to freedom of information requests.

Under the FOI Act, public authorities are required to respond to freedom of information requests within 20 working days. The ICO received a "significant" number of complaints about each of the monitored authority's failure to respond to requests within the statutory limit. The ICO states that failure to show signs of improvement during the monitoring period may result in enforcement action being taken.

ICO launches campaign against rogue private investigators

The ICO has announced that it is launching a campaign to "shine a light" on private investigators in a bid to remove criminal elements that breach the DPA. This issuecame to the fore through the Leveson Inquiry and the investigation by the House ofCommons Home Affairs Select Committee into phone hacking.

Unlawfully obtaining or accessing personal data is a criminal offence under section 55 of the DPA. The ICO is also concerned that some private investigators are breaching the DPA in other respects, including by failing to ensure that the personal data they handle is accurate and that it is securely deleted once it is no longer required. The ICO is encouraging members of the public who have evidence of private investigators breaching the DPA to contact it. The ICO has also written a letter to private investigation businesses, public authorities using these services and the police to try to examine the extent of the problem. The ICO plans to report back on its findings in the summer.

Estate agent fined for failing to register to process personal information

Under section 17 of the Data Protection Act 1998 (DPA), organisations processing personal data are required to register with the ICO. Failure to register is a criminal offence and can lead to a fine of up to GBP 5,000 in a Magistrates' Court or unlimited fines in a Crown Court.

According to a news story published by the ICO, a Hertfordshire estate agent has been found guilty of processing personal data without registering with the ICO. The estate agent failed to register with the ICO despite being contacted on three separate occasions and reminded of the need to register. The estate agent was fined GBP 300 and ordered to pay GBP 405 towards prosecution costs, as well as a GBP 30 victims' surcharge.

The ICO began a campaign in September 2010 to encourage estate agents to register as organisations which process personal data under the DPA. According to the article, since the campaign began there has been a 36% increase in the number of estate agents and an 88% increase in the number of letting agents that have registered.

NHS to be subject to compulsory DPA audit

For a number of years, the ICO has expressed concern that it did not have the power to compulsorily audit all Data Controllers. The ICO had been provided with the power to audit Government Departments by the DPA, but the ICO argued that this power should apply to all Data Controllers.

Whilst any Data Controller can at present consent to an audit, the ICO has long been concerned that it had no powers to audit those poor performing organisations which were not compliant with the DPA, and particularly those within the NHS and the wider public sector.

The Government has now announced a proposal to widen the powers of the ICO to grant the ability to carry out a compulsory audit, and issue an "Assessment Notice". The matter has been put out to Consultation with the period for comments ending on 17 May 2013.


The Consultation identifies that the reasons behind the ICO's request for compulsory audits are to assist the NHS in improving their DPA compliance and to seek a "more preventative approach". The NHS is one of the largest processors of Sensitive Personal Data in the UK (if not Europe) and the Consultation acknowledges that "most individuals will have no choice but to interact at some point with their hospital or GP".

There has been a great deal of coverage about the NHS and its data protection compliance since the ICO was given the power to levy fines for breaches of the DPA. The ICO has made it clear that the NHS is a "cause for concern" and the content of the Consultation goes some way to setting out the nature of those concerns. The Consultation details the number of complaints received about the NHS and identifies the main areas of concern raised by Data Subjects in relation to DPA compliance, with the top three relating to subject access requests, inappropriate disclosure of data and information security.

What would happen during an audit?

The ICO has already produced a Code of Practice on Assessment Notices ( Code) which covers both consensual and compulsory audits. The Code confirms that "the primary objective of carrying out a 'compulsory' audit is limited to determining the data controller's compliance with the DPA's data protection principles. This will include the identification of weaknesses and strengths from a risk mitigation perspective". The assessment will take place against the ICO's Codes and guidance which are available on the ICO's website.

The proposals are to provide the ICO with the power to:

末 Access any premises

末 Access, inspect and copy information and documentation held by the Data Controller

末Observe the processing of any personal data taking place on the premises

末 Interview staff

James Cassidy from Clyde & Co advises that NHS Trusts should review the Code now to determine the likely approach of the ICO and the key issues which they will be evaluating should the power to audit be granted. James notes that "Trusts may also wish to take the opportunity to carry out internal audits, particularly in relation to the problem areas identified by the ICO to proactively identify any issues."

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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