Examination of witnesses (Questions 250 - 259)
TUESDAY 3 FEBRUARY 1998
MRS E FRANCE,
and MR F ALDHOUSE
250. Would there not be a case for strengthening the
requirements on bodies so that you do understand what categories
are held? It seems to me that would be extremely helpful.
(Mrs France) One of the objectives of the present
Bill is to reduce the burden on those who use data in notifying
my office about their processing. One of the criticisms of the
1984 Act has been the overburdensome registration requirement.
What the Bill does is actually take away that requirement, or
at least gives the Government the opportunity, and they are going
to take it, of releasing a large number of processors of personal
information from the requirement to inform my office at all. What
it does at the same time is say that notification is required
for some categories and there is something called a prior checking
category, which applies to extremely sensitive information and
the processing thereof. I am sure this would fall into that sort
of category. I am sorry, this is very technical. It is likely
to be processing under way at the time the new Bill comes into
force because I do not imagine it is something that Ministry of
Defence are starting to do for the first time and therefore would
be covered by transitional provisions. It is very difficult to
do what you are asking because it is asking for a detailed statement
of what is held. Unless it were an actual copy of data there would
still be scope for anybody who chose to do so to amend or delete.
In a sense data protection legislation encourages the deletion
of some information because we encourage people to look very carefully
at their retention policy and not to hold data for longer than
is necessary or useful for their business purposes. We would not
be surprised to find that a government department had a policy
of weeding its records. What we would be alarmed about is if they
suddenly invented that policy when an application was made.
251. Surely there is a distinction between holding information
in the public interest and deleting information in the public
interest?
(Mrs France) Yes. The difficulty is how you establish
that has taken place.
252. The thrust of the Freedom of Information White Paper
and the legislation which will follow is that there should be
a presumption to disclose, whereas in the past too often there
has been a presumption to conceal or to withhold. That confers
on individuals a right to know that they have not had before.
Does it then not follow that bodies which hold information which
ought to be accessible to the public have a responsibility to
disclose the information when it is sought, irrespective of what
Act it comes under? Why then should the citizen need to know or
bother about whether it is freedom of information or data protection
under which he or she is enquiring?
(Mrs France) No; I accept that entirely. My worry
is that the two pieces of legislation, if they do not sit comfortably
together, will lead to problems in cases of difficulty, in cases
where there is a refusal, in cases where there is a difference
of view with the individual.
253. On the assumption that these issues are resolved,
would you expect the individual to be able to apply for information
without having to name the Act or define his or her right?
(Mrs France) Yes. We are not happy when we find
currently that people are refused information simply because they
have not mentioned the Data Protection Act. That is not the approach
we would expect to see public sector bodies taking to FOI or data
protection.
254. When we have been discussing freedom of information
we have talked about the burgeoning business of brokerage that
there will be in helping to identify where information is. Will
the new legislation, the Data Protection Bill, give any additional
protection to individuals? For example, I have had a letter from
a constituent recently, who resents very much being woken up at
twenty past three in the morning when his fax at home rings and
somebody deposits on his fax paper at his expense - -
(Mrs France) Do ask him to write to us because
we are dealing with cases of that kind.
255. Is that within the new legislation or are there
existing rights?
(Mrs France) There are existing rights. May I
pick up the point you are making there? It seems to me that what
we have to be clear about is that the rights are slightly different
in relation to personal information. As you say, your constituent
actually wants to keep his personal information to himself. He
does not want somebody to process it. Currently he has a right
to ask for his information to be suppressed and then it is unfair
processing if the processor continues. It is stronger under the
new law where he has a right to object to direct marketing.
256. Through the letterbox or through ...?
(Mrs France) Any means.
Mr Campbell
257. What we have heard here this morning has been very
interesting. I have taken it all in. How many requests have you
had refused under the blanket ban you were talking about? How
many requests where Jo public has come along and said he wanted
something and could not get it because of a blanket ban?
(Mrs France) I am not aware of very many cases
where there is a blanket ban. We only hear about subject access
requests which go wrong. Where they go smoothly the individual
deals with what we call the data user and that is the end of the
matter. We now process approaching 4,000 complaints a year. Last
year eight per cent related to difficulties with subject access;
that is overall. Some of those difficulties are misunderstandings
with the data user, or quite often a problem we have is that somebody
believes they have not been given the whole story. We get quite
a lot of cases of that kind and that is where we hope our new
information notice power will help, where we can insist on seeing
the information. At the moment we go along and most data users
will cooperate and show it to us. A particularly good example
of that is the police. People make subject access requests to
the police, the police are not required to give any information
which would prejudice the prevention or detection of crime, but
it has to be on a case by case basis. They do give a lot of information.
In cases where individuals have felt they are not being given
all they should be, then we have normally found the police very
cooperative in showing to a senior member of my staff what they
hold. They are not required to do that. We find we can normally
resolve the problem and I am afraid I cannot give you any number
for cases which have simply been faced with a stonewall, as it
were. It will be very small.
258. What sort of advertising do you do to attract the
attention of Joe Soap out there to come and complain, if he has
a complaint? If he hits a brick wall he walks away.
(Mrs France) Am I allowed to say as much as my
grant-in-aid allows?
259. That is not very much.
(Mrs France) We are in a Catch 22 because we know
from past experience that advertising generates an enormous volume
of complaints, complaints about potential breaches of the Act,
to my office. We are a small office. We do have to look at resources
available to us. We did advertising, before my time, I believe
in 1990, which led to a huge increase in complaints in that year.
We have gone back to some advertising this year and it has been
very successful. What we have tried to do is target individuals,
to tell them their rights and encourage them to exercise them
direct. We actually told the advertising agency that what we wanted
them to do was to raise the profile of data protection without
raising our case load. I know that sounds a funny thing to say
but to try to encourage individuals to use their rights, to use
them direct and then come to us if it went wrong. We have run
a campaign now in two television regions, the North and the Midlands,
where we have had a very short television advertisement telling
people that they have a right to see what is held on them and
that it might be wrong and need to be corrected. We have had a
response mechanism, which is to invite requests for a booklet,
and we have been very impressed with the response to that. A large
number of booklets have gone out. In addition to that we try to
make information available to individuals, for example, through
our web site, or through speaking at conferences. Nearly always
when we speak at conferences, we are speaking to data users, to
the people who process. We always point out to them that they
are also citizens and they should be aware of their rights and
spread the word. It is difficult to do. We accept that we have
not got universal knowledge of rights in the United Kingdom. We
have a plan to raise the profile quite considerably in the new
year, which we think will be when the new rights of the Bill are
on the statute book. We are working at the moment with our professional
advisers on putting an advertising programme together.
Chairman: Thank you very much, that is a very good
note on which to end the first part of the hearing this morning.
Thank you very much for your very comprehensive answers. I am
sorry we could not have had longer with you.
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