Tag Archives: Information Commissioner

Non-payment of Data Protection Fees: The ICO announces first steps in enforcement

Under the Data Protection Act 1998 it was an offence to process personal data without notifying with the Information Commissioner (and paying the required notification fee) unless you were exempt from having to notify. The position changed in May when the GDPR and Data Protection Act 2018 entered into force. The requirement to notify, which had its origin in the 1995 Data Protection Directive, was done away with. This left the UK with a particular problem: the Information Commissioner’s work in relation to the enforcement of data protection was funded entirely by the notification fees paid by data controllers. The solution was to introduce a system of fees which data controllers are required to pay to the Information Commissioner unless they are exempt from having to do so.

The law was also changed so that non payment of the data protection fee by a controller required to pay it is no longer a criminal offence. There are duplicate provisions in law which allow the Information Commissioner to charge these fees. The duplicate provisions are section 137 of the Data Protection Act 2018 and section 108 of the Digital Economy Act 2017. The fees payable are current specified within The Data Protection (Charges and Information) Regulations 2018, which were made exercising the powers under section 108 of the Digital Economy Act (the Regulations being made prior to the enactment of the Data Protection Act 2018 in May). There are, however, no provisions within the Digital Economy Act 2017 in respect of penalties for non-payment of these fees; the only provision which provides for non-payment of these fees is section 158 of the Data Protection Act 2018, which applies to fees made under section 137 of the Data Protection Act 2018.

In terms of section 158 of the Data Protection Act 2018, the maximum penalty for non-payment of the fee is 150% of the highest charge payable in accordance with the fees regulations, disregarding any discount available under the fees regulations.

It seems that a number of data controllers, who the Commissioner believes should be paying a fee, have not paid their fee. Earlier this week it was announced that the Information Commissioner’s Office had started to take enforcement action against 34 such organisations. The enforcement regime in section 158 of the Data protection Act 2018 applies to regulations made under section 108 of the Digital Economy Act 2017 by virtue of a provision within Schedule 20 to the Data Protection Act 2018 which provides that Regulations made under section 108 of the Digital Economy Act 2017 are to have effect as if they were Regulations made under section 137 of the Data Protection Act 2018 after the coming into force of section 137 of the Data Protection act 2018 (which happened on 25 May 2018).

The Notices of Intent, according to the ICO press release, have been issued to a range of controllers across the public and private sectors and that there are others in the process of being about to be issued. They act as a final warning by the ICO they if organisations don’t pay then they will be the recipient of a fixed penalty. It seems that the ICO is taking a relatively strong stance against non-payers from the outset and data controllers should therefore ensure that they pay their registration fees (where applicable) as and when their notification under the Data Protection Act 1998 comes to an end; or immediately where they were did not notify under the Data Protection Act 1998.

Alistair Sloan

If you would like advice on a data protection or privacy matter than contact Alistair on 0141 229 0880 or you can E-mail him directly. You can also follow our twitter account dedicated to the field of Information law

Facebook, Fines and Enforcement: ICO investigation into political campaigning

In March the Commissioner executed a warrant under the Data Protection Act 1998, to much fanfare and press coverage, on Cambridge Analytica – the data analytics firm who had been involved in the election campaign by US President Donald Trump and who had allegedly undertaken work for Leave.EU in the 2016 referendum on whether the UL should remain a member of the European Union or not. At the same time the Information commissioner announced a much wider investigation into compliance with data protection and privacy laws in political campaigning.

The Information Commissioner has today published a report giving an update on that wider investigation [pdf]. There has been much fanfare around this report and in particular a suggestion that Facebook has been served with a Monetary Penalty Notice in the amount of £500,000. This would be big news; it may not be a large sum of money to Facebook, but £500,000 is the maximum that the Information commissioner can serve a Monetary Penalty Notice for under the Data Protection Act 1998.

However, it has become clear that Facebook has not been served with a Monetary Penalty Notice in the amount of £500,000. The first thing to note here is that the Data Protection Act 1998 still applies; the alleged breaches of data protection law that the Commissioner is concerned with pre-dated 25 May 2018 and therefore the powers under the General Data Protection Regulation (GDPR) do not apply. What has happened is that the Information Commissioner has served a “Notice of Intent” on Facebook indicating that the Commissioner intends on serving Facebook with a Monetary Penalty Notice in the amount of £500,000. This is the first stage in the process of serving a Monetary Penalty Notice, but it is by no means guaranteed that (a) a Monetary Penalty Notice will be issued; and (b) that it will be in the amount of £500,000.

Facebook will have the opportunity to make written representations to the Information Commissioner on various matters, including whether the statutory tests for serving a Monetary Penalty Notice have been met and on the amount of the Penalty. The Commissioner must take account of these representations when making a final decision on serving the Monetary Penalty Notice: not to do so would likely result in an appeal against the Notice to the First-Tier Tribunal (Information Rights), which could ultimately result in the Monetary Penalty Notice being reduced in amount or quashed altogether. If Facebook brings forward evidence to the Commissioner that means she can no longer make certain findings in fact that will have an impact on both her ability to serve the Monetary Penalty Notice and the amount of that notice.

It could be many more weeks, if not months before we know whether a Monetary Penalty Notice is in fact being served on Facebook and how much it is for. The Commissioner must serve the Monetary Penalty Notice on Facebook within six month of serving the Notice of Intent.

There are some other aspects of the Commissioner’s report that are worthy of some brief consideration. The Commissioner has announced that she is intending on prosecuting SCL Elections Limited. The information given by the Commissioner suggests that this prosecution is to be limited to one very specific issue: their failure to comply with an Enforcement Notice previously served on the company. The Enforcement Notice was served on the company after they failed to comply with a subject access request received by them from a US academic. The company was in administration when the Enforcement Notice was served and remains in administration today. The Information Commissioner is able to prosecute offences under the legislation it is responsible for enforcing in its own right; except in Scotland where it requires to report the matter to the Procurator Fiscal in the same way as every other law enforcement agency is required. How successful that prosecution will be and what benefit it will bring remains to be seen given that the company is in administration. Even if the company is successfully

We have also seen what appears to be the first piece of enforcement action taken under the Data Protection Act 2018 and the General data Protection Regulation.  The Commissioner has served an Enforcement Notice on the Canadian company, Aggregate IQ [pdf]. This amounts to what could be termed as a “stop processing notice” and it requires Aggregate IQ to, within 30 days, “cease processing any personal data of UK or EU citizens obtained from UK political organisations or otherwise for the purposes of data analytics, political campaigning, or any other advertising.”

Failure to comply with an Enforcement Notice under the Data Protection Act 2018 and the GDPR is not (unlike under the Data Protection Act 1998) a criminal offence; however, a failure to comply can result in an administrative fine of up to €20 million or 4% of global turnover (whichever is the greater). How successful the ICO will be at enforcing this enforcement notice, given that the company is located in Canada and appears to have no established base in the UK, or any other EU member state, remains to be seen.

Other investigations are still ongoing. The Commissioner appears to be continuing to investigate whether there was any unlawful data sharing between Leave.EU and Eldon Insurance. Investigations are also being undertaken into the main ‘Remain’ campaign in the EU referendum and also into all of the UK’s main political parties. It remains to be seen what will happen there.

The Commissioner’s report also informs us that the appeal by the United Kingdom Independence Party (UKIP) against an Information Notice previously served upon them has been dismissed. The First-Tier Tribunal (Information Rights) has not yet published a decision in that case on its website, but should it do so I shall endeavour to blog on that decision (especially given that there has never to my knowledge been an appeal to the Tribunal against an Information Notice). Failure to comply with an Information Notice is a criminal offence, and a company was recently fined £2,000 at Telford Magistrates’ Court for that very offence.

Alistair Sloan

If you require advice or assistance on a matter relating to data protection or privacy law then you can contact Alistair Sloan on 0141 229 0880 or send him an E-mail. You can also follow our twitter account dedicated to information law matters.

Crossroads: where data protection and freedom of information intersect

The laws relating to freedom of information and those relating to privacy and data protection often come into conflict with one another.  One issue which arises often for those who are responsible for answering freedom of information requests is whether or not to disclose personal data of third parties which is caught up within the information that has been requested.  This is an area that has been the subject of much litigation both under the Scottish and UK FOI laws; indeed, cases have gone from Scotland all the way to the UK Supreme Court (this might be because there are fewer levels of appeal to go through in Scotland and until very recently Scottish litigants did not need the permission of the Court of Session or the Supreme Court to take an appeal there).

One area which is perhaps the most contentious of all is where the personal data in question relations to civil servants.  The generally accepted position has been that in most cases the personal data of junior civil servants will be redacted while personal data relating to senior civil servants is more likley to be disclosed.  This position, however, is one that has never really had any scrutiny from the superior courts; that is until now.  On 6th April the Upper Tribunal (Administrative Appeals Chamber) made its decision in Cox v Information Commissioner and Home Office [2018] UKUT 119 (AAC).  Judge Wikeley records that to the best of his knowledge Cox was “the first occasion on which the Upper Tribunal has had to consider in any depth the issue of the principles governing the disclosure of the names of individual civil servants in response to a request under FOIA.” [32]

In this appeal the Appellant, Mr Cox, is concerned with the development of Government policy and its application in relation to migration from the Horn of Africa.  The Appellant made a request for information to the Home Office pursuant to his right of access to information within the Freedom of Information Act 2000.  His request for information sought details concerning meetings between civil servants from the Home Office and government officials from countries within the region.  In particular, the Appellant sought the dates of the meetings, names of all those who were present at the meetings and also the notes of such meetings.

There were two issues in the appeal, but this blog post only focuses on the first of those issues; that being the disclosure of the names of civil servants.  The Home Office had refused to disclose the names of three civil servants who had formed part of the UK’s delegation to Eritrea in December 2014 (they were referred to as J, L and N during the course of the proceedings before the First-Tier Tribunal).  The Information Commissioner had agreed with the Home Office and found that the Home Office had complied with the requirements of the Freedom of Information Act 2000 in withholding the names under section 40(2) of the Act.

The UK and Scottish provisions in respect of personal data are the same (although, in the Scottish Act the exemption can be found within section 38 of the Freedom of Information (Scotland) Act 2002).  Personal data of third parties is exempt under FOI law where to release the personal data would amount to a breach of the data protection principles.  When third party personal data is involved in an FOI request the sixth condition in Schedule 2 to the Data Protection Act 1998 comes into play.  This condition requires there to be a balancing exercise undertaken between the rights of the data subject and the rights of the person who is seeking disclosure of the personal data.

In South Lanarkshire Council v Scottish Information Commissioner [2013] UKSC 55 (a case which involved the disclosure of pay scales within the Council in connection with matters concerning equal pay), Lady Hale observed that the sixth condition in Schedule 2 required that three discrete questions are asked and answered:

  1. Is the data controller or the third party or parties who whom the data are disclosed pursuing a legitimate interest of interests?
  2. Is the processing involved necessary for the purpose of those interests?
  3. Is the processing unwarranted in the circumstances by reason of prejudice to the rights and freedoms or legitimate interests of the data subject?

The first hurdle for a requester to get across in seeking to have third party personal data, including the names of civil servants, disclosed under FOI laws is that they are pursuing a legitimate interest. It is clear from the authorities that there is no inherent interest in the release of civil servants’ names: “[t]here is no reason why the general transparency values underpinning FOIA should automatically create a legitimate interest in disclosure under the DPA.” [42] (see also Department of Health v Information Commissioner and Lewis [2017] EWCA Civ 374)  What needs to be assessed is “the legitimate interests of the individual requester, and not the more abstract legitimate interests of the public at large”. [43]  If the decision-maker, whether that be the public authority, commissioner or courts/tribunals, is not satisfied that there is no legitimate interest being pursued by the requester, then they do not need to go any further as the sixth condition would not apply (see the comments of Judge Jacobs giving the decision of the Upper Tribunal in Information Commissioner v (1) CF and (2) Nursing and Midwifery Council [2015] UKUT 449 (AAC) at paragraph 19 in particular).

When the personal data exemptions are in play they represent an exception to the general proposition that the FOI process is applicant blind (i.e. that the applicant doesn’t play a part in determining whether information ought to be released or not); other exceptions include, for example, the vexatious provisions and the aggregation provisions within the appropriate limit regulations.  Judge Jacobs, at paragraph 30, in IC v CF & NMC (above) said that it “is impossible to apply paragraph 6(1) without having regard to the identity of the applicant, the interest pursued by the request and the extent to which information is already potentially available to the public.”

Each case will, of course, turn on its own facts.  Many of the factors which go into determining whether third party personal data ought to be released is specific to the facts and context. However, I suggest that we can draw some clear principles from the case law to date:

  1. When determining the legitimate interests part of the test; there is no public benefit legitimate interest – reference must be had to who is making the request and why they are making the request;
  2. The balancing exercise required to be undertaken when applying condition 6 of Schedule 2 is not the same balancing exercise that is completed when undertaking the public interest balancing exercise;
  3. FOI rights do not take precedence over privacy and data protection rights;
  4. When it comes to the personal data of civil servants; there is no hard rule that the personal data (including names) of senior civil servants will always be disclosed and likewise there is no hard rule that the personal data (including names) of junior civil servants will always be redacted; it is a decision that is both fact-specific and context-specific

The decision in Cox is of course one that is not binding on the Scottish Information Commissioner, but it is binding upon the First-Tier Tribunal and the UK Information Commissioner.  It essentially approves of the way in which public authorities and both commissioners have been handling these issues to date and so we’re unlikely to see anything change as to how the tension between FOI laws and the data protection laws is resolved.

The Data Protection Bill will (when it is finally passed and eneacted) amend both the Freedom of Information Act 2000 and the Freedom of Information (Scotland) Act 2002 to reflect the General Data Protection Regulation; the provisions look a bit unwieldy, but in reality they are unlikely to change very little in terms of day-to-day practice.

Alistair Sloan

If you require advice and assistance on any aspect of freedom of information or data protection and privacy law then you can contact Alistair Sloan on 0141 229 0880; alternatively you can contact him directly be E-mail.  We have a Twitter account dedicated to information law issues , which you are welcome to follow.

The Information Commissioner’s power to compel information

The Information Commissioner is presently undertaking an investigation into the possible unlawful use of personal data, in particular, data analytics, by political parties and political campaigning organisations.  The most high profile activity that the Commissioner has undertaken in respect of that investigation has to be the obtaining and execution of a warrant to search the offices of Cambridge Analytica.  As part of that investigation it has been reported that a number of persons and organisations involved in politics have been served with Information Notices by the Information Commissioner, including the United Kingdom Independence Party (UKIP), Leave.EU and Arron Banks.

An Information Notice is a formal investigative tool which the Information Commissioner can use in order to gather information.  Her power to issue such notices, in respect of the processing of personal data, is to be found in section 43 of the Data Protection Act 1998.  There are two circumstances in which the Commissioner can issue an Information Notice:  (1) when conducting an assessment pursuant to section 42 of the Data Protection Act 1998; and (2) where the Commissioner reasonably requires any information for the purpose of determining whether the data controller has complied or is complying with the data protection principles.  Broadly speaking this means that the Commissioner can issue an Information Notice either when her office is conducting an investigation at the request of a data subject or an investigation undertaken by her office which has been instigated by the Commissioner herself.

An Information Notice is simply a document which requires the data controller concerned to provide the Commissioner with information specified within the notice relating to the section 42 request or the controller’s compliance with the data protection principles.  However, its simplicity obscures its formality.  The issuing of an Information Notice is a formal step, and is a serious one for the recipient of the notice.  There is an automatic right of appeal against the notice or any part of the notice to the First-Tier Tribunal (Information Rights).  The right of appeal exists precisely because of its formality and the consequences for not complying with the notice.  It has been reported that UKIP has appealed the Information Notice served on it to the Tribunal.

An Information Notice is more than a polite request for information; it is a formal demand for information which is baked up by the threat of sanctions.  It is a criminal offence to fail to comply with an information notice which can result, if convicted, in a fine.  Furthermore, it is a criminal offence  to (i) make a statement in response to an information notice which is known to be false; or (ii) recklessly make a false statement in response to an information notice.

When serving an Information Notice, the Commissioner can specify or describe the information required by her or can be broader and instead specify or describe categories of information that she requires from the data controller.  There are some restrictions though on the information that the Commissioner can require a data controller to provide her with.  A data controller is not required to furnish the Commissioner with (a) “any communication between a professional legal adviser and his client in connection with the giving of legal advice to the client with respect to the person’s obligations, liabilities or rights under [the Data Protection Act 1998]”, or (b) “any communication between a professional legal adviser and his client, or between such an adviser or his client and any other person, made in connection with or in contemplation of proceedings under or arising out of [the Data Protection Act 1998] (including proceedings before the Tribunal) and for the purposes of such proceedings.”

A data controller can also refuse to provide information which would reveal evidence of the commission of any offence.  However, there are some exceptions to this general exception; if the offence is an offence under the Data Protection Act 1998 or offences under certain statutory provisions concerning the giving of false evidence, then the data controller may still be required to provide the Commissioner with that information.

The serving of an Information Notice on a data controller is a significant step by the Commissioner and it is one that data controllers should not take lightly.  The consequences for failing to comply with the notice or for deliberately or recklessly misleading the Commissioner through the provision of false information can see the data controller facing criminal charges.  The Notice can be challenged through the First-Tier Tribunal (Information Rights) which could see part or all of the notice reduced/quashed.  The Data Protection Bill contains provisions in relation to Information Notices which are for the most part identical to the powers found within the Data Protection Act 1998 and so the Commissioner will continue to possess this potentially powerful took once the GDPR becomes a reality next month (subject, of course, to the Data Protection Bill completing is passage through parliament and receiving Royal Assent in time).

Alistair Sloan

If you are facing an investigation by the Information Commissioner in respect of alleged failures to comply with privacy and data protection law, or if you require advice on any other information law matter you can contact Alistair Sloan on 0141 229 0880.  Alternatively you can contact him directly by E-mail.  We also have a dedicated information law twitter account which you can follow.

The Information Commissioner’s Powers of Entry and Inspection

Yesterday I wrote a blog post looking at data subject’s rights and lessons for controllers arising out of the Cambridge Analytica and Facebook privacy matter.  In that blog post I mentioned briefly about the Information Commissioner’s powers of entry and search after the Commissioner announced that she was seeking a warrant to enter and search Cambridge Analytica’s premises.   In this blog post I will look at the Commissioner’s powers of entry and search in a bit more detail.

As noted yesterday, the Commissioner’s powers of entry and search are contained in Schedule 9 to the Data Protection Act 1998.  Schedule 9 sets out the circumstances in which a judge can grant a warrant to the Information Commissioner.  The judge considering the application must be satisfied, based on statements made on oath, that the there are reasonable grounds of suspecting that (a) a data controller has contravened or is contravening any of the data protection principles, or (b) that an offence under the Data Protection Act has been or is being committed, and that evidence of the contravention or of the commission of the offence is to be found on any premises specified in the information supplied by the Commissioner.

The Commissioner is generally required, by the terms of Schedule 9 to the Data Protection Act 1998, to jump through some hoops before the judge considering the warrant application can grant the warrant to the Commissioner.  Paragraph 2 of Schedule 9 requires that the judge considering the application be satisfied of a number of other things:

  1. that the Commissioner has given seven days’ notice in writing to the occupier of the premises in question demanding access to the premises, and
  2. that either (i) access was demanded at a reasonable hour and was unreasonably refused, or (ii) although entry to the premises was granted, the occupier unreasonably refused to comply with a request by the Commissioner or any of the Commissioner’s officers or staff to permit the Commissioner or the officer or member of staff to do any of the things she would be entitled to do if she had a warrant (see below); and
  3. that the occupier, has, after the refusal, been notified by the Commissioner of the application for the warrant and has had an opportunity of being heard by the judge on the question whether or not it should be issued.

Where the judge is satisfied that the case is one of urgency or that compliance with those provisions would defeat the object of the entry, the judge does not need to be satisfied of the three things listed above.  In this case, given that the Commissioner announced her intention to apply for a warrant on national television, it is likely that a judge will require to be satisfied of the three conditions listed above.

Who considers an application by the Commissioner for a warrant depends upon the jurisdiction in which the warrant is being applied for.  In England and Wales a District Judge (Magistrates’ Court) or a Circuit Judge has the power to grant the warrant; in Scotland it is the Sheriff and in Northern Ireland it is a Country Court Judge.

A warrant granted under Schedule 9 of the Data Protection Act 1998 gives the Commissioner the power to do a number of things; these things can be found in paragraph 1(3) of the Schedule and are:

  1. to enter the premises
  2. to search the premises
  3. to inspect, examine, operate and test any equipment found on the premises which is used or intended to be used for the processing of personal data;
  4. to inspect and seize any relevant documents or other material found on the premises;
  5. to require any person on the premises to provide an explanation of any document or other material found on the premises;
  6. to require any person on the premises to provide such other information as may reasonably be required for the purpose of determining whether the data controller has contravened, or is contravening, the data protection principles.

The warrant must be executed at a reasonable hour, unless it appears to the person executing it that there are grounds for suspecting that the object of the warrant would be defeated if it were so executed, and within 7 days of the date of issue.  It allows the Commissioner, her officers and staff to use reasonable force to execute the warrant.

There are lots of other, really boring and technical requirements, which I won’t go into; the last thing I will mention is the terms of paragraph 12 of Schedule 9 which makes it an offence to: (i) intentionally obstruct a person in the execution of a warrant issued under Schedule 9; (ii) fail, without reasonable excuse, to give any person executing such a warrant such assistance as he may reasonably require for the execution of the warrant; (iii) makes a statement in response to a requirement  to provide information (see 5 and 6 in the list of powers the warrant gives the Commissioner) which that person knows to be false in a material respect; and (iv) recklessly makes a statement in response to such a requirement which is false in a material respect.

The Commissioner does get warrants from time to time; for example, earlier this month the ICO executed search warrants in relation to two properties in Greater Manchester as part of an investigation into companies suspected of sending text messages in contravention of the Privacy and Electronic Communications (EC Directive) Regulations 2003 (PECR).  The provisions of Schedule 9 to the Data Protection Act 1998 apply to PECR by virtue of Regulation 31 of PECR.

Alistair Sloan

If you are a data controller or an individual who is looking for advice and assistance with any aspect of data protection or privacy law, then you can contact Alistair Sloan on 0345 450 0123 or 0141 229 0880.  Alternatively, you can send him an E-mail.

Data Protection, Facebook and Cambridge Analytica

We know that the Information Commissioner is investigating the circumstances surrounding the obtaining of personal data of a considerable number of individuals by Cambridge Analytica.  Cambridge Analytica is a data analytics company that is in the midst of what can only be described as a data protection and privacy scandal.

There are a number of significant allegations being made against Cambridge Analytica about how it obtains and processes personal data.  The Information Commissioner has also revealed that Cambridge Analytica is not cooperating with her investigation to the extent that she is going to apply for a warrant to enter and search their premises.  This means that, in all probability, the Commissioner has already sought access and it has been refused.  Schedule 9 to Data Protection Act 1998 sets out the Information Commissioner’s powers of entry and inspection; it permits the Commissioner to obtain a warrant from the court where the court is satisfied that a data controller has contravened or is contravening any of the data protection principles, or that an offence under this Act has been or is being committed, and that evidence of the contravention or of the commission of the offence is to be found on any premises specified.

This story is moving at quite a pace and is constantly changing with new revelations coming to light; it’s also the subject of an investigation by the Information Commissioner and there is the possibility that the company might face prosecution for offences under Section 55 of the Data Protection Act 1998 depending upon what the Commissioner finds during the course of her investigation.  I am therefore going to try and keep this blog post broad and theoretical rather than trample upon the toes of a live regulatory investigation.

A data controller has a duty to comply with the data protection principles in relation to all of the personal data for which they are the controller, subject to certain specified exemptions set out in statute.  The First data protection principle requires that personal data be “processed fairly and lawfully”; this requires the data controller to meet one or more of the conditions set out in Schedule 2 to the Data Protection Act 1998 (and, in respect of sensitive personal data, a condition in Schedule 3 also requires to be satisfied).

What can individuals do if they are concerned about whether Cambridge Analytica has any personal data concerning them and what they’ve been doing with it?  Data Subjects have a number of rights under the Data Protection Act 1998 and the cornerstone of those rights is the right of subject access.  This is currently given effect to in section 7 of the Data Protection Act 1998 and is not simply about getting copies of the personal data being processed by a data controller:  it consists of a whole suite or rights, of which getting a copy of the personal data is only one aspect.  Under the current law, data controllers are entitled to charge a fee up to a prescribed maximum for dealing with such requests; a request of this nature would attract a fee of £10, but many individuals might well think that this is a price worth paying to know if and how they have been affected by this issue.  Data Controllers have up to 40 days in which to comply with a subject access request.  Some key changes to the right of subject access will come into effect on 25th May 2018, but for now the law contained within the Data Protection Act 1998 is still applicable.

Once you have the response to your subject access request your rights do not end there; once you’ve established what a data controller is processing about you, what they’re doing with it and where they got it from there are a number of other steps that you might be able to take, such as requiring them to cease processing your personal data, complaining to the Information Commissioner or making a claim for compensation.

For data controllers, what is currently unfolding should be seen as an important lesson.  Data can be a useful tool to a business; whether it is being used for targeted marketing campaigns or to work out what consumers want from products and services in your market.  However, there are laws governing data protection and privacy and at the heart of those laws are the principles of fairness and transparency.  Controllers need to be careful as to how they obtain personal data, where they obtain it from, what they do with it and be certain that they have a lawful basis for processing that personal data in the ways that they want to do so; that may be because you have the consent of the data subject, because you have a legitimate interest in the processing or some other lawful ground for processing.  Don’t forget the Privacy and Electronic Communications (EC Directive) Regulations 2003 when conducting direct marketing by electronic means.

Simply because a person has made their personal data available, for example through social media, does not mean that is free to be used by whomever and for whatever they want.  The principles of the Data Protection Act 1998 still apply and the reputational damage that can be suffered may well vastly outweigh any regulatory action taken by the Information Commissioner or by data subjects themselves.

Alistair Sloan

If you are a data controller or an individual who is looking for advice and assistance with any aspect of data protection or privacy law, then you can contact Alistair Sloan on 0345 450 0123 or 0141 229 08800.  Alternatively, you can send him an E-mail.

Data Protection and Privacy Enforcement: February 2018

February is a short month, and did not see the same level of publicity by the Information Commissioner’s Office in respect of enforcement action taken to enforce privacy and data protection laws as was seen in January.

Key points 

  • Failing to comply with an Enforcement Notice is a criminal offence (see section 47 of the Data Protection Act 1998); there is a right of appeal to the First-Tier Tribunal (Information Rights) against the terms of an Enforcement Notice and so if you do not agree with the terms of the notice you should seek legal advice about the possibility of making such an appeal.
  • Employees should be careful what they do with personal data; in most cases the enforcement liability will lie with the employer (although, your employer might take disciplinary action against you for failing to comply with company policies and procedures).  However, there are circumstances when employees can be held personally, and indeed criminally, liable for breaches of the Data Protection act 1998.
  • The right of subject access is a fundamental right of data subjects and data controllers must ensure that they comply with their obligations in respect of a subject access request made by a data subject.  The right of subject access remains a key feature of the new European data protection framework and the GDPR strengthens the right of subject access for data subjects.

Enforcement action published by the ICO during February 2018

Pennine Care NHS Foundation Trust
The ICO has conducted a follow-up assessment [pdf] with Pennine Care NHS Foundation Trust finding that the Trust had complied with the terms of the undertaking which it had previously given [pdf] following a consensual audit [pdf] by the Commissioner’s staff.

Gain Credit LLC
Gain Credit LLC was served with an Enforcement Notice [pdf] by the Information Commissioner for failing to comply with a subject access request made to it.  This came to light after the data subject in question made a request to the Information Commissioner that she carry out an assessment pursuant to section 42 of the Data Protection Act 1998 into whether it was likely or unlikely that the processing by Gain Credit LLC was in accordance with the provisions of the Act.

Direct Choice Home Improvements Limited
In March 2016 Direct Choice Home Improvements Limited was served with a Monetary Penalty Notice in the amount of £50,000 [pdf] and also an Enforcement Notice [pdf] for breaching Regulation 21 of the Privacy and Electronic Communications (EC) Directive Regulations 2003 (PECR).  The company continued to breach Regulation 21 of PECR and the Commissioner prosecuted it for breaching the Enforcement Notice.  The company was not represented at Swansea Magistrates’ Court and was convicted in absence.  The company was fined £400 as well as being ordered to pay £364.08 in prosecution costs and a victim surcharge of £40. (Don’t forget that PECR remains part of the privacy and data protection law landscape when the GDPR becomes applicable in May.)

Other Prosecutions
A former employee of Nationwide Accident Repair Services Limited was prosecuted by the Information Commissioner for unlawfully obtaining personal data contrary to section 55 of the Data Protection Act 1998.  The defendant had sold the personal data of his employers’ customers to a third party who then made use of the personal data to contact some of those customers concerning their accident.  The defendant was convicted and fined £500 as well as being ordered to pay costs of £364 and a victim surcharge of £50.  An offence of unlawfully disclosing personal data was admitted to and taken into consideration by the Court.

A former local authority education worker was prosecuted after she unlawfully disclosed personal data contrary to section 55 of the Data Protection Act 1998.  The defendant had taken a screenshot of a council spreadsheet which concerned the eligibility of named children to free school meals and then sent it onto an estranged parent of one of the children.  She pled guilty to three offences and was fined £850 by Westminster Magistrates’ Court as well as being ordered to pay £713 in costs.

Alistair Sloan

If you require advice or assistance in respect of a data protection or privacy law matter, or any other Information Law matter; then contact Alistair Sloan on 0345 450 0123, or send him and E-mail.

Data Protection/Privacy Enforcement: January 2018

It has been a busy start to the year for the Information Commissioner’s Office (ICO).  The start of 2018 also saw the highest ever sentences imposed on those in breach of Data Protection and Privacy laws in the United Kingdom.  It is time to have a closer look at the Data Protection and Privacy Enforcement action published by the ICO during January 2018 as part of our regular monthly review.  You can read our review of the privacy and data protection enfrocement from December 2017 here.

Key Points

  • If you have access to personal data as part of your employment, ensure that you only access it where there is a genuine professional need for you to do so; even if the reason you are looking for information could be considered harmless.
  • As far as the Information Commissioner is concerned, ‘ignorance is not bliss’; Data Controllers must have adequate and up to date procedures, technology and policies in place to ensure that they are not in breach of any data protection laws or regulations.
  • Organisations can’t generally send advertising or marketing emails unless the recipient has informed the sender that they consent to such emails being sent by, or at the instigation of, that sender.  Any consent must be freely given, explicit and informed but also involve a positive indication signifying the individual’s agreement. In order for consent to be informed by an individual, the individual must know exactly what it is they are consenting to (for more information see Alistair Sloan’s blog post PECR:  The forgotten relative).
  • Failure to notify the Information Commissioner of any personal data breach in accordance with the Notification Regulations will not be tolerated.  If it has come to your attention that there has been a breach, you must come clean and put your hands up. A much wider requirement to notify the ICO of personal data breaches becomes applicable with the GDPR later this year, for more on that see our blog post on Personal Data Breaches under the GDPR.
  • It goes without saying, meticulous attention to detail must be taken when you are sending any correspondence containing personal data, you must ensure that it is sent to the correct person.

Enforcement action published by the ICO in January 2018

The Carphone Warehouse Ltd
The Carphone Warehouse Ltd was served with a Monetary Penalty Notice in the sum of £400,000 after serious failures and inadequate software placed customer and employee data at risk.

Newday Limited
Newday Ltd were served a Monetary Penalty Notice in the sum of £230,000 after approximately 48,096,988 emails were sent to individuals who had not consented to receive marketing, contrary to regulation 22 of the Privacy and Electronic Communications (EC Directive) Regulations 2003.  The Commissioner decided that the consent relied on by Newday Limited was not sufficiently informed and therefore it did not amount to valid consent.

TFLI Ltd
TFLI Ltd received a Monetary Penalty Notice of £80,000.  This penalty was also in relation to contravention of regulation 22 of the Privacy and Electronic Communications (EC Directive) Regulations 2003.  TFLI Limited sent approximately 1,218,436 unsolicited marketing texts promoting a loan website.

Barrington Claims Ltd
Barrington Claims Ltd were issued a Monetary Penalty Notice in the sum £250,000 after they failed to ensure automated marketing calls were made only to individuals who had consented to receive them. The Commissioner decided to issue a Monetary Penalty under section 55A of the Data Protection Act 1998, in relation to contravention of regulations 19 and 24 of the Privacy and Electronic Communications (EC Directive) Regulations 2003.  The company were unable to provide evidence that it had the consent of individuals to whom it had instigated the calls.

Goody Market UK Ltd
Goody Market UK Ltd were issued a Monetary Penalty Notice in the sum of £40,000 after they failed to ensure that text messages containing marketing material were only sent to individuals who had consented to receive them.  They were also served an Enforcement Notice. The texts were sent on the basis of data sourced from a third party, and purchased on behalf of Goody Market UK Ltd by a data broker.  Goody Market UK Ltd were unable to provide the Commissioner with any evidence that the recipients consented to the marketing messages, having relied on verbal assurance from the data broker.  The Commissioner found that Goody Market UK Ltd had contravened Regulation 22 of PECR.

West Midlands Police
West Midlands Police have signed an Undertaking to comply with the Data Protection Act after the Information Commissioner was informed that a data breach had occurred in relation a Criminal Behaviour Order.  The order was imposed on two individuals, but in a leaflet distributed to publicise the order, the names of the witnesses were revealed.

Miss-sold Products UK Ltd
Miss-sold Products UK Ltd were served a Monetary Penalty Notice in the sum of £350,000 after they failed to ensure that marketing calls were only made to individuals who had consented to receive marketing. The penalty was in relation to contravention of Regulation 19 of the Privacy and Electronic Communications (EC Directive) Regulations 2003.

SSE Energy Supply Ltd
SSE Energy Supply Ltd was issued a Monetary Penalty Notice of £1,000 after they sent an email to an individual in error.   The penalty was issued because of contravention of Regulation 5A of the Privacy and Electronic Communications (EC Directive) Regulations 2003.  This Regulation requires that a provider of a public electronic communications service must notify the Information Commissioner of a personal data breach without undue delay.  SSE Energy Supply Ltd sent an email to the wrong email address, disclosing the name of a customer and their account number.  After they became aware of the breach, SSE Energy Supply Limited did not follow its policies and procedures that were in place and as a consequence there was a delay in reporting the personal data breach to the Information Commissioner.

Prosecutions
There were a number of successful prosecutions reported by the ICO during January 2018:

  1. An investigation by the ICO, which began in 2013, resulted in record fines for Woodgate and Clark Ltd, the company director and private investigators who were involved in the illegal trade of personal information.  A claim had been made on an insurance policy in relation to a fire at business premises which the claimant owned.  Private investigators unlawfully obtained confidential financial information and disclosed it to Woodgate and Clark Ltd, which then disclosed it to an insurer client.  The defendants were all prosecuted under s55 of the Data Protection Act 1998.  Woodgate and Clark Ltd were fined £50,000 in addition to being ordered to pay £20,000 in costs.  The company director was fined £75,000 and was ordered to pay £20,000 in costs; while both private investigators were fined £10,000 and ordered to pay £2,500 in costs.
  2. A director of an accident claims company invented a car crash so that he could trace and get in touch with the owner of a private number plate he wanted to buy.  He was prosecuted at Bristol Magistrates’ Court for a breach of S55 of the Data Protection Act 1998 for the offence of unlawfully obtaining personal data.  He was convicted and received a fine of £335.00.  The defendant was also ordered to pay prosecution costs of £364.08 and a victim surcharge of £33.00.
  3. An individual was charged with two offences of unlawfully disclosing personal data.  The defendant had come into possession of a USB stick and published sensitive police information from it on Twitter.  He was sentenced to a 12 month conditional discharg,e in part because he had been placed on a stringent bail conditions including wearing an electronic tag before the hearing.  He had to pay £150 in cost and £15 victim charge.

Vicki Macleod Folan

If you require advice and assistance in connection with any of the issues above, or any other Information Law matter, please do contact Alistair Sloan on 0345 450 0123 or by completing the form on the contact page of this blog.  Alternatively, you can send him an E-mail directly.

Data Protection/Privacy Enforcement: December 2017

Our monthly look at the enforcement action taking by the Information Commissioner in respect of Privacy and Data Protection matters continues with a review of the enforcement action published by the ICO in December 2017.  You can view last month’s review of the November 2017 enforcement action here.  December 2017 was not an overly busy month for the ICO; they published just one Enforcement Notice.

Key Points

  • Ensure that you have in place adequate procedures to ensure that you handle Subject Access requests within the time allowed by the law.

Enforcement Action

Secretary of State for Justice
The Secretary of State for Justice was served with an Enforcement Notice [pdf] requiring him to deal with his department’s backlog of delayed Subject Access Requests.  As at 10 November 2017 the Ministry of Justice had 793 Subject Access Requests which were over 40 days old; some of this backlog was made up of Subject Access Requests made in 2014.  This was a reduction from the 919 requests more than 40 days old as at 28 July 2017 (which included requests going back to 2012).  The Data Protection Act 1998 requires that Subject Access Requests be responded to within 40 calendar days (this will be reduced to 30 calendar days under the GDPR – you can find out more about this change, and others to the right of subject access requests, in my blog post on Subject Access Requests under the GDPR).

Alistair Sloan

If you require advice or assistance with Subject Access Requests, or any other Information Law matter then contact Alistair Sloan on 0345 450 0123 or send him and E-mail

The National Security Blanket has been Shrunk

On 2nd January 2018 the Upper Tribunal (Administrative Appeals Chamber) (consisting of Charles J, Lane J and Anne Chafer)  published an important decision [pdf], dated 14th December 2017, on the application of the exemption in section 23 of the Freedom of Information Act 2000.

The exemption in section 23 relates to information supplied by, or relating to, bodies dealing with security matters.  Subsection (3) provides a list of 15 bodies to which the exemption applies; including the Security Service (MI5), the Secret Intelligence Service (MI6), the National Crime Agency (NCA) and the Government Communications Headquarters (GCHQ).  The actual exemption is contained in Section 23(1) and provides that:

Information held by a public authority is exempt information if it was directly or indirectly supplied to the public authority by, or relates to, any of the bodies specified in subsection (3).

Background

The decision is worth reading in full, but the essential background to the decision is as follows.  On 21st August 2015 the Royal Air Force carried out a precision air strike in Syria utilising a remotely piloted aircraft (commonly referred to as a ‘drone strike’).  The strike took place in the Syrian city of Raqqa and the target was 21 year-old Reyaad Khan, who was born in Cardiff, and had featured in a ‘recruitment video’ produced by ISIS (also known as IS, Dahesh or ISIL).  The strike killed the intended target along with two other ISIS fighters, one of whom was also British.

On 7th September 2015 the then Prime Minister, David Cameron, made a statement to the House of Commons.  In his statement to the House, Mr. Cameron provided details on the operation which had taken place in August 2015 in Raqqa.  The Upper Tribunal’s written reasons for its decision quote extensively, at paragraph 10, from Mr. Cameron’s statement to the House.  It also quotes an exchange between Mr. Cameron and the then acting leader of the Labour Party, Harriet Harman MP (paragraphs 11 and 12).

In compliance with the United Kingdom’s obligations in terms of Article 51 of the UN Charter, the UK’s Permanent Representative to the United Nations wrote to the President of the Security Council informing the President that the UK had undertaken the 25th August 2015 operation and that this was in “exercise of the inherent right of individual and collective self-defence.”  The Upper Tribunal have quoted further from that letter in paragraph 13 of its decision.

There is much more to the background which can be dealt with in this blog post; however, it is comprehensively set out in the Upper Tribunal’s decision.  It is suffice to say that Freedom of Information requests were made by the appellants to the Attorney General’s Office (AGO) and to the Cabinet Office.  These requests were refused by the public authorities and, in three decisions dated 30 August 2016, the Information Commissioner upheld the decisions of the AGO and the Cabinet Office.  The appellants appealed to the First-Tier Tribunal (Information Rights) and the appeals were transferred to the Upper Tribunal in terms of Rule 19 of The Tribunal Procedure (First-Tier Tribunal) (general regulatory Chamber) Rules 2009 – which allows appeals to the First-Tier Tribunal against decisions of the Information Commissioner’s office, amongst others, to be transferred to and be determined by the Upper Tribunal instead of the First-Tier Tribunal; essentially the appeal ‘leap-frogs’ the First-Tier Tribunal.

Section 23 of FOIA

Section 23 of FOIA is an absolute exemption, which means that it is not necessary for the public authority to consider where the public interest rests between maintaining the exemption and disclosure.  It was designed to ensure that there was no backdoor route to gaining access to information held by the security services under FOIA.  The security services are not public authorities for the purposes of FOIA and this exemption ensures that information which is supplied by, or relates to, one of the security bodies in section 23 cannot be obtained from a public body which is a public authority for the purposes of FOIA.  A similar exemption, but not identical, can be found at Section 31 of the Freedom of Information (Scotland) Act 2002.

The Upper Tribunal’s decision

The Tribunal’s starting position seems to have been that FOIA provides a right of access to information rather than documents.  When responding to an FOI request, a public authority does not need to supply a copy of the document which contains the requested information (although, in practice an authority will provide the document – redacted where necessary).  The request can be complied with by extracting the information from the document or other records held by the authority (APPGER v ICO and FCO [2015] UKUT 0377 (AAC)).  This seems to be a key pillar of the Upper Tribunal’s decision in Corderoy and another v The Information Commissioner and others.

The Upper Tribunal has in this case qualified a statement that was made in the decision of the Upper Tribunal in the APPGER case.  In the APPGER case, the Upper Tribunal stated that “…information, in a record supplied to one or more of the section 23 bodies for the purpose of the discharge of their statutory functions, is highly likely to be information which relates to an intelligence or security body and so exempt under section 23.”  The Respondents in the present case appear to have relied upon this position to argue for a very broad interpretation of section 23.  The Appellants however argued that the absolute exemption in section 23 would prevent disclosure under FOISA unless:  (a) the legal analysis to found the view that he policy decision was lawful can be disaggregated and provided in an intelligible form; and (b) any such disaggregated information falls outside the scope of section 23.

The Appellants were interested in the legal advice which underpinned the Government’s policy decision.  They argued that if this information could property be removed from the documents supplied to the section 23 bodies, and that information itself was not provided by, or related to, a section 23 body, then section 23 did not preclude disclosure and the information instead had to be considered under the qualified exemptions in sections 35(2) and 42 of FOIA (relating to the formulation of government policy and legal advice).

The Upper Tribunal eventually concluded that, while the information in question was clearly of interest to the section 23 bodies; Parliament did not intend, when enacting Section 23(1), for the exemption to apply to information simply because it might be of interest to the section 23 bodies.  The information in question in the present case was concerned with, and confined to, the question as to whether the Government’s policy was lawful.

The Upper Tribunal then went on to consider the public interest arguments, deciding that the public interest rested in maintaining the alternative qualified exemptions rather than in disclosure.  The Upper Tribunal held that it was not necessary for the Government’s legal advice to be shared in order to enable a debate on the lawfulness of the Government’s position to take place; indeed, a considerable debate had already taken place on the issue without the information.

Criticism of the Information Commissioner’s Investigations

The Upper Tribunal also took issue with the way in which the Information Commissioner had conducted her investigations into the complaints made by each of the appellants.  The Information Commissioner had proceeded on the basis of assurances given by the AGO and the Cabinet Office that the information was exempt under section 23(1) of FOIA rather then exercise her statutory powers to require the AGO and Cabinet Office to provide her with the information in question for her consideration.

The Upper Tribunal was extremely critical of this approach by the Commissioner.  The Commissioner did modify her position before the Upper Tribunal; however, the Upper Tribunal remained extremely critical.  At paragraph 95 of its decision, the Upper Tribunal stated:

We acknowledge the resource difficulties of the Information Commissioner but we consider that the course adopted here of effectively permitting the other tow Respondents to be the decision-maker on the challenge to their stance of the application of the absolute exemption in section 23 is unfair.

The Upper Tribunal went on to state in paragraph 97 of its decision that:

If the relevant public authority wishes to avoid a consideration of the relevant documents and so information and disaggregation issues, we have not thought of any circumstances in which it could rely on an assurance rather than a certificate given pursuant to s. 23(2) that can be appealed under section 60.

A certificate under section 23(2) is signed by a Minister of the Crown certifying that the information to which the certificate applies was directly or indirectly supplied by, or relates to, any of the bodies specified in section 23(3) is conclusive evidence of that fact.  The conclusiveness of the certificate is, however, subject to section 60 of FOIA which allows the Commissioner or any requester who is affected by the certificate to appeal the certificate to the First-Tier Tribunal.  The Tribunal can, if it decides that the information in question is not covered by section 23(1), quash the certificate.

Such a certificate may not ultimately prevent the First-tier Tribunal from carrying out the exercise that the Upper Tribunal ultimately carried out in this case, but it does prevent the Commissioner from doing so as the Commissioner is bound to rely upon such a certificate as being conclusive evidence of the application of section 23(1).

Comment

This was an important decision of the Upper Tribunal which clarifies the scope of Section 23(1) of FOIA and which also makes it clear how the Commissioner should conduct her investigations where a requester is challenging the application of section 23(1) of FOIA, but where no Minister of the Crown has signed a certificate pursuant to Section 23(2) of FOIA.

The Upper Tribunal has provided for a more defined exemption rather than for the blanket approach that was being taken by the Respondents.  What can be taken from this case is that information which may be of interest to those bodies listed in section 23(3) of FOIA, and thereby relate to them, will not automatically engage the exemption in section 23.

The Upper Tribunal’s comments on the way in which the Information Commissioner conducted her investigations in relation to these complaints are also of note, and indeed of wider importance.  It is clear that the Upper Tribunal expects the independent regulator to be independent (perhaps not an unsurprising conclusion); in this case it appears that she did not act as independently as she should have.  It was not appropriate for the Commissioner to rely on assurances given by the public bodies concerned and she ought to have required that a copy of the disputed information be provided to her for her consideration or a certificate issued pursuant to section 23(2) of FOIA.  While sympathetic to the pressure on resources that the Commissioner was experiencing, this did not provide an excuse to her for failing to properly investigate an area of contention between the requesters and the public authorities (and indeed between the public authorities themselves, who arrived at the same conclusion but for different reasons).

Alistair Sloan

We have experience of appeals against decisions of the UK Information Commissioner to the First-Tier and Upper Tribunals and also of handling appeals against decisions of the Scottish Information Commissioner.  If you would like to discuss a Freedom of Information matter with Alistair Sloan then you can contact him on 0345 450 0123 or send him an E-mail.