Examination of witnesses (Questions 210 - 229)
TUESDAY 3 FEBRUARY 1998
MRS E FRANCE,
and MR F ALDHOUSE
Miss Johnson
210. In your opening remarks you mentioned a conflict
between Chapters 3 and 4 of the White Paper. You said your main
concern was what it said in Chapter 3 rather than Chapter 4. I
might be missing it, but I am missing the comfort in Chapter 4
as well in terms of the conflict you talked about. I am looking
at page 24 of the White Paper and section 4.8 where it does say
that the Act will be drafted so it is compatible with the data
protection principles set out in data protection legislation.
Then the list of what those include does not refer to the point
you are really making which is this point about not having a harm
or substantial harm issue attached to individual privacy, that
obviously we ought to have a right, a presumption for privacy
rather than a presumption for information where it comes down
to the individual except for the personal access issue.
(Mrs France) My broad reading of Chapter 4 was
that the underlying assumption was that in relation to personal
information the data protection legislation had precedence. Indeed
I think it probably has to have in that the United Kingdom has
adopted the EC Directive and there would be recourse to the European
courts directly if we were to deny people the rights which were
contained in the Data Protection Bill.
211. Would the result of that be that the freedom of
information legislation would have to be drafted in such a way
that ultimately it is compatible even on the point about which
you have concerns?
(Mrs France) My belief is that if it were not
so drafted, the courts would make it clear if challenged that
in the case of an individual the Data Protection Bill's requirements
would be the ones which took precedence.
212. May I raise a related but slightly different issue?
We have had some discussion about the way in which information
has been denied on request, for example in the last Parliament
somebody tabled a question about the salary payments to the Chief
Executives of TECs. This information was refused on the grounds
that it was personal information and was not relevant to be released.
I am of the view that we should set some kind of line, above which
people can expect certain kinds of information to be made publicly
available, even though it might perhaps be construed as of a personal
kind, because of their role in public life. Do you have any views
about whether we should have such a line and if so how it should
be arrived at?
(Mrs France) As an official whose salary to the
last pound is contained in a resolution before the House of Commons,
I have no difficulty accepting that the salaries of public officials
would in my terms fall within the freedom of information requirements.
Clearly you are right, that it depends what sort of official we
are talking about. One would give ranges for junior staff. You
would not home in on a member of junior staff and try to find
out exactly what their performance pay was. If you are talking
about the heads of public bodies and you are talking about senior
staff, then that falls into my definition of somebody whose personal
information in that case is in his public persona. I do not have
any difficulty with disclosure of information relating to an individual
as head of a public body, or a senior official within a department.
I do not have any difficulty with the disclosure of the names
of officials within papers where their decisions are relevant
to the information to be disclosed.
213. How do you think the line should be drawn, the area
above which would be those for whom it is clear that that information
would be, if requested, a matter of availability to any member
of the public who wanted it and those below, where it might be
a matter of debate or never accessible to the public?
(Mrs France) Where you are a member of staff within
an accepted grade band - we do not talk about those in quite the
way we used to - you would just accept that. We are only talking
about people who have personal salaries which are set. These are
points of detail. It seems to me the essence of the thing is that
if the information is actually about the post and there happens
to be a named postholder, then it would not for me be difficult
to say that was not personal information within the terms of the
data protection legislation.
214. Would you think that the salaries of chief executives
of TECs would have fallen into this category?
(Mrs France) You are asking me a specific question
and there might be some inwardness to it of which I am not aware.
As far as I am concerned, anybody who takes a public position
of that kind would expect that sort of information to be in the
public domain.
Chairman
215. The definition of what exactly is a public official
is the difficulty. You have raised some points yourself just now,
such as performance-related components which are extremely interesting
because you would want to know on what basis they had been given.
Secondly, there is the hoary old chestnut of merit awards for
consultants in the NHS which are the source of perpetual fascination
for everybody. Thirdly, as to whether a Chief Executive of a Training
and Enterprise Council really is a public official or not is a
very fascinating question.
(Mrs France) The whole definition of public bodies
and public officials will presumably be clearer once we see the
Bill. We got a very broad feeling from the White Paper that it
was going to be a generous interpretation. In the case of salaries,
you have to decide perhaps the source of the remuneration.
216. If it is the taxpayer.
(Mrs France) If the taxpayer has an interest,
then ...
Dr Clark
217. I am left rather confused with your last line of
answers. My understanding is that in a sense it does not really
matter what you as an individual think of these, or even in your
position as a commissioner. Is this not all covered by what the
European Directive 95/46/EC states? We must find these issues
as to what is regarded as covered by the legislation which we
are obliged to implement in there. If we do not put it into the
Bill in a proper way then it will be open to challenge.
(Mrs France) It will be open to challenge. What
I am suggesting is that how we define the public interest exemption
to the rights in the Data Protection Bill will be crucial to how
these two pieces of legislation work together. If, in looking
at freedom of information legislation, Parliament decides that
it is in the public interest that that sort of information is
made available then I would have thought a case could be made
for doing that.
218. Will that still fit all right with the protections?
As I understand it, the protections in the Directive are very
much aimed at protecting individual personal information.
(Mr Aldhouse) The Directive does set out a set
of rules. It sets out principles which you find in existing data
protection legislation and adds some further restrictions, mostly
aimed at sensitive information, things like medical data, religion,
race. The data protection principles are not absolute. There are
rules in the Directive about when it is proper to process data
and there are some balancing tests there. It is proper also to
process data if it is necessary for a public function. There is
scope for Parliament to decide, for a Member State to decide in
a proper formal way, where the public interest lies in some of
these difficult marginal cases.
219. It would still, theoretically at least, be open
to an individual to disagree with the view taken by Parliament
and challenge the legislation on the basis that it was contrary
to the Directive.
(Mr Aldhouse) That must always be the case. Member
States try to avoid that risk of challenge.
220. I was slightly concerned also about what you said
about the dispute which appears to be going on about definition
of manual records. One of the problems at the moment is that so
much personal information is not actually available to people
under the existing Data Protection Act. For example, one of the
things I see in my work as a lawyer is that people want access
to their social work records. That is often denied them because
they are manual, they are paper records. What is your understanding
of the dispute which is going on at the moment about the definition?
(Mrs France) I am not sure I would go so far as
to call it a dispute. What we have is a Directive which says that
the rights which previously applied to automated records will
be extended to what it calls structured filing systems. It then
goes on to define structured filing systems and I can with pleasure
read it to you if you would like me to. Really it is a matter
then of each of us deciding what that means. I am sorry, it says
"relevant filing systems" in the UK Bill. The definition
which the Government has proposed in the Bill says that means:
"any set of information relating to individuals to the extent
that although the information is not processed by means of equipment
operating automatically in response to instructions given for
that purpose, the set is structured either by reference to individuals
or by reference to criteria relating to individuals and in such
a way that particular information relating to a particular individual
is readily accessible". I have done a one-page note on my
interpretation of those words in the Bill. My interpretation of
them is that it covers almost any personal case file that in my
experience I have seen. The debate originally was about whether
the contents were included at all or whether you simply disclosed
the fact that you had a file with somebody's name on the front.
Clearly card indexes are covered, clearly proforma are covered,
clearly microfiche indexes are covered. Our view, having read
those words, is that the sort of standard case work file with
which I am familiar, which might deal with a social work case,
an immigration case, a Prison Department case, is a personal file
and is about a particular individual and is about a particular
issue and must be covered. My understanding of the Home Office
view is that a personnel file would not be covered because, although
about a particular individual, it covers a range of types of information.
That is a degree of interpretation which is not justified by the
words. The view that I have expressed is that this will in fact
extend the responsibilities, duties of data users and the rights
of individuals to any manual record which is filed by reference
to that individual, either his NI number or his name and where
it is clear that every paper on that file relates to that individual.
221. Is it clearly your view that the individual, if
you are correct, would get access not only to the fact that a
file exists but the contents of the file?
(Mrs France) Yes; with the exemptions and exceptions
which would apply in other circumstances, law and order and so
on.
Mr Shepherd
222. I am trying to get the legal regime clear in my
mind. I take it that you said data protection legislation would
take precedence over freedom of information legislation, if I
understood you correctly.
(Mrs France) Yes, in relation to personal information.
223. It is because its source or authority, should there
be a conflict, is that of an EC Directive. Where there is a conflict,
freedom of information legislation is only domestic legislation
and is therefore subordinate to external legislation of this nature.
The European Court of Human Rights is being introduced into domestic
legislation and therefore we will have an appeal system to a Treaty
based law which will take precedence and therefore you can have
a conflict between FOI, presumably, in these areas and data protection.
Is this not a very muddled and confused overarching legal structure?
(Mrs France) It could be. All we can say is that
we can minimise those differences. You could argue, but it is
not the route the Government has taken, that in relation to personal
information the law should leave it to the Data Protection Act
and that FOI should concentrate on non-personal information. That
would be cleaner. The downside of it is that you are not clearly
giving a full range of FOI coverage which the Government is committed
to and which other jurisdictions have. I would argue that the
extension of data protection legislation into manual records could
provide a suitably broad definition. There is a long transition
period, but it is up to member states whether they take advantage
of that long transition period or not. Manual records need not
be fully covered until 2007 according to the Directive. The Government
has said that they are keen to give the broadest possible interpretation
of the transition time because of the burden on bodies who have
to comply. That is its position. There is no doubt that if you
were to say that FOI related to information which you defined
as non-personal (and you could extend that definition to cover
the sorts of cases we have just talked about), and that personal
data, as defined in the Data Protection Bill, dealt with access
to personal files, then certainly there would be less room for
conflict. If we are going to have the two regimes then our determination
must be to see that definitions coincide as well as possible and
that resolution mechanisms are thought through.
224. Most other regimes one looks at, say the United
States of America or Canada, have no outside arbitrary overhanging
law over them; presumably it is all settled at a domestic level.
I do not want to overstate it, but I do envisage the possibility
that a constituent of mine, for instance, just does not accept
the process and therefore takes another route. So you stand off
until it is explored by this other route. That strikes me as a
flaw in our system of arranging the relationship between these
important subject matters.
(Mrs France) You are right that the developing
thinking on freedom of information has happened in parallel to
the decision to have the Human Rights Bill and it may be that
it is appropriate to look again at the balance and the way we
approach these issues. Most of the regimes which the Chancellor
of the Duchy quotes are regimes outwith Europe. That is not the
case with Ireland or France which are both quoted there. Ireland
has not yet drafted its Data Protection Bill to take account of
the EC Directive but is the newest recruit to an FOI regime. They
are beginning to look at doing it the opposite way round from
us, having gone in that direction. I am not sure, I have no experience,
I do not know whether my deputy does, of any clash within the
French system between FOI and data protection.
(Mr Aldhouse) No, we are not aware of anything
there. We are aware of Canadian examples.
225. I know, and out of the seven, three are European
and one is not Sweden which has a long track record in this. It
is the comparison. Can we learn from other people's experience
is really what I am looking to? France, and Ireland with a very
new regime, but Sweden with a long established one with clear
patterns, as we were reminded just now, such as taxpayers - -
(Mrs France) Sweden is now having some considerable
difficulties because of the extent of openness and beginning to
have to look again carefully at that in the light of data protection
regimes and attitudes to privacy.
Mr Shepherd: That is what worries me about an overreaching
internationalist view of what these rights are. In Sweden apparently,
if we were a Swedish citizen, our tax returns would be a matter
of public knowledge or public right to view them. That is clearly
a cultural and national response to this. I am really just probing
because I am very uncertain about the balance of the argument
and where it lies in this matter. Maybe I should leave it there.
Chairman
226. You made some slightly critical comments about the
Government's choice in the White Paper. You said that the data
protection regime we already have could have been used for coverage
of all personal information and you could have made freedom of
information simply not apply to personal information, if I understood
you correctly.
(Mrs France) That is certainly an option.
227. Would I be right in assuming that if the Government
had chosen that option, the first criticism which would have been
made would have been: what about the Gulf War veterans? Would
they not then have been denied the sorts of rights that we assume
they would have got if freedom of information had applied, or
am I misunderstanding the point you are making?
(Mrs France) I do not think I am quite understanding
the point. I am not suggesting anything should be lost in the
process. I am simply suggesting that one possibility would be
to look at personal information as defined in the Data Protection
Bill, that is information which directly or indirectly identifies
an individual, and say that you use that legislation to give people
access to their own information.
228. Why is it that Gulf War veterans are always complaining
that they have to use the American freedom of information legislation
now because we have not until now and still do not have the legislation,
just a White Paper. They are always saying they have to go and
use the American freedom of information legislation. Presumably
if they could have used data protection legislation, for subject
access purposes, they could have used it already, if your point
is right, or am I misunderstanding the point you are making about
this being an option?
(Mr Aldhouse) It depends what information the
Gulf War veterans are seeking. If it is information about their
own medical condition then under the current UK law if it is held
on computer they can obtain it. In future, if it is held manually
they will be able to obtain it as well. If what they are seeking
is information about the general practice which was followed in
the Gulf, then that does not relate to them personally and an
FOI regime would apply. In the UK we only have the code of access.
Mr Hancock
229. Unfortunately they will not get it under this legislation
either. If I were a Gulf War veteran and I were trying to find
out what was actually given to me and why, there is nothing in
here which would say that the Ministry of Defence would have to
release that information because they would claim an exemption,
would they not?
(Mrs France) On what basis would they claim an
exemption?
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