Information Compliance:FoI, Data Protection and libraries

Terry O’Brien, tpobrien@wit.ie Information Compliance Officer

Waterford Institute of Technology

E/IIIUG June 2009Institute of Technology Blanchardstown

• Freedom of information

•Data Protection

Context of information compliance

• What is information compliance – primarily compliance with legal obligations and responsibilities under FoI and DP

• Responsibilities in maintaining the confidentiality, integrity and availability of information (City University London)

• Privacy, ethics, copyright, ownership, censorship, connectivity, intellectual property, re-use of public sector information, harvesting, data mining, blogging, IM, social networks, email policy, internet usage, surveillance, PII (Personally Identifiable Information), liability, obligations, legal requirements, plagiarism, information ethics,

Freedom of information

• Sweden 1766, Finland 1951,• Irish background – Government reform, Ethics in

Public Office Act 1995, Public Service Management Act 1997, Strategic Management Initiative – delivery of better government

• Counterpoint to Official Secrets Act 1963 – government openness, accountability, public participation in government

• Beef Tribunal – disconnect between government and public access to information

• 1966 US FOI Act context of failure of govt to account to Congress re; Vietnam War

Freedom of Information 101• Legislation –FoI Act

1997, FoI (Amendment) Act 2003

• Regulations (Statutory Instruments) 1998-2006

• Dept. of Finance CPU Guidelines

• Establishment of OIC

• Principles – openness, transparency, accountability

• FoI Act imposes duty to assist requestor

• Role of FoI officer – honest broker, facilitator, encouraged to answer requests outside of FoI

•Statutory Rights

• A right to obtain reasons for decisions

affecting the person

• A right to access records held by

public bodies

• A right to have personal

information amended

• Personal requests – no

fee• OR

• Non-personal requests -

€15.00

• Decision-maker [20 working

days]

• Appeal to OIC – legally binding (only 3 or 4%)

• High Court [on point of law]

• Internal review [15 days]

• Supreme Court – section 42

FoI – what is a record• A record is defined as including any memorandum,

book, plan, map, drawing, diagram, pictorial or graphic work or other documents, any photograph, film or recording, or any form in which data are held

This includes paper or electronic diaries, e-mails (not stored on a back-up system), draft records, electronic records, x-rays even

post-it notes etc.

This includes paper or electronic diaries, e-mails (not stored on a back-up system), draft records, electronic records, x-rays even

post-it notes etc.

Freedom of Information

• FoI give power a face, i.e. about who makes the decisions and why – accountability

• Power without a face as represented by Kafka in ‘The Trial’

Freedom of information - current

• Current FOI requests in 2008 up to 12,672 (+18%), Depts. of Taoiseach, Finance, Enterprise

• HSE receives most requests• Journalists represent 15% of all requests (+100%) e.g.

FAS expense accounts• Increase a by-product of downturn, “holding

institutions to account”• State bodies outside scope,– VECs, CAO, State

Examinations Commission, An Garda, FSRAI, NTMA, Pensions Reserve Commission

FoI - statistics

1999 2000 2001 2002 2003 2004 2005 2006 2007 2008

11531 13705 15428 17196 18443 12597 14616 11804 10704 12672

Requests to Public Bodies under FOI Act 1999 -2008

Freedom of information

• 140,000 requests since introduced 70% + granted• 85,000 personal information • 304 appealed to OIC• 73% members of public or representative bodies,

15% journalists, 6% business, staff of public bodies 5%, others, members of Oireachtas 1%

• Release patterns: civil service lagging behind – 36%, 54% local authorities, HSE 70%, 3rd level 48% but trend very much downward

Freedom of information• “Every person has a right to and must be

offered access to any record held by a public body. The right has been broadly interpreted and the exceptions have been narrowly interpreted”

• Reasons or motivation for seeking access are irrelevant

• Not limited to ‘interested’ parties (except in cases of personal information, but there are exemptions

FoI – key elements

• S28.5(a) Public interest test (harm test)“on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld”

• “Public interest” is a vague concept- does not mean interesting to the public!

• S18 – right for reasons for decisions – if affected, material interest

FoI - types of requests• Sample requests – tenders, financial information,

travel claims / requests for access to personal records (interview feedback), shortlisting criteria, model answers, and scripts, medical records, reasons for decisions made etc.

• FoI exposed – 700m Bertie Bowl, Industrial schools, TD and Cllr expenses, Public funds – tendering, public procurement, interview notes and marks, references (potentially), inspection of nursing homes, crèches, schools inspection reports

FoI exemptions• Section 10 – Records do not exist• Section 11 – Deferral of access to records• Section 12 – Manner of access to records• Section 19 – Meetings of government• Section 20 – Deliberations of public bodies• Section 21 – Functions and negotiations of public bodies

• Section 24 – Security, defence, IR• Section 26 – Information obtained in confidence• Section 27 – Commercially sensitive• Section 28 – Personal information• Section 29 – 3rd party consultation• Section 32 – Non-disclosure

FoI – ‘letting in the light?’

FOI – a brief review• FoI amendments seen as a retrograde step,

2003 – “put genie back in the bottle”, rushed through, OIC resigns, no consultation

• Charging schedule seen in negative terms (up front fees etc.), Cabinet records – 10 years

• Many bodies still remain outside FoI• Sign of a mature liberal democracy

FoI - summary• Rationale in 70 countries essentially the same –

empowerment of the public• FoI role in “changing social contract between public

service and the public”• Ongoing tensions between governments and FoI in

Ireland and internationally • Reflects a rights-based approach – right to know

what is being done by government in people’s name• “governmental hygiene measure” – keep government

honest, discourage corruption(FoI, The First Decade, OIC 2008)

FoI - International• ALA annual event 16/3 James Madison • US FOI 1966 (74, 76, 78) – federal agencies access to all

federal records 9 specific exemptions• “with a deep sense of pride that the United States is an

open society in which the peoples right to know is cherished and guarded” (LBJ, 1966)

• UK / Scotland – separate legislation. Scottish is seen as more progressive – more positive approach to access for children and those with disability - “ a person who requests information .. Is entitled to receive it”, “as much about culture as it is about legislation” (2004)

• “we have clearly got the balance wrong when online business have higher standards of transparency than the public services” (Gordon Brown)

FoI - the future

• “economic downturn will increase dependence of public on the state and government agencies” – state will be collecting, processing, maintaining more information about individuals

(OIC Annual Report 2008)• Comply with legal obligations in face of

fewer resources, yet increased demand

FoI – some references• Role of FoI office www.foi.gov.ie/• Office of Information Commissioner OIC www.oic.ie • Central Policy Unit Section 23 notice• Re-use of public sector information

http://www.psi.gov.ie/• FoI Annual Report 2008• OIC decisions• http://www.psi.gov.ie/• Bodies covered by FoI

http://www.foi.gov.ie/bodies-covered-by-foi • DCU FAQs http://www.dcu.ie/foi/faq.shtml#6

Barack Obama on 1st day in office

“ A democracy requires accountability, and accountability requires transparency. As Justice Louis Brandeis wrote, "sunlight is said to be the best of disinfectants." In our democracy, the Freedom of Information Act (FOIA), which encourages accountability through transparency, is the most prominent expression of a profound national commitment to ensuring an open Government. At the heart of that commitment is the idea that accountability is in the interest of the Government and the citizenry alike. The Freedom of Information Act should be administered with a clear presumption: In the face of doubt, openness prevails. All agencies should adopt a presumption in favor of disclosure”

Data Protection• Human right• Personal privacy, affects every day life• Not absolute - tension with freedom of

expression, rights of others • LRC (1998) “..basic human right ..

Fundamental in a civilised legal system..”• Constitution implicit right to personal privacy• ECHR article 8 explicit right “right to respect

for private and family life”

Data Protection and the law• Data Protection legislation – rights based 1988

Data Protection Act & 2003 Data Protection (amendment) Acts,

• DPC office est. 1989• Data Protection directive 95/46/EC• EC Electronic privacy regulations• Disability Act 2005

• Good Friday Agreement

• Bunreacht na hEireann

• Convention on Human Rights

• Council of Europe DP convention

• EU Charter Fundamental rights fairness and consent

• Lisbon Treaty also makes reference

Data Protection Commissioner• Role – codes of practice, guidance, advice,

education and support, public register, reports, investigations, audits, work with other Regulators

• Powers – notice, enforcement, compliance, entry and inspection. Prosecute, fines up to €250,000

• Role of commissioner in EU consistent – ombudsman (resolution), enforcer (compliance) educational (promote and advocacy) registration

• Article 29 Working Party – harmonise application of DP across EU

DPC role

• Approach of DPC – education and promotion, supportive, part of current Dept. of Justice review group

• Audit resource for organisations• ‘private I, public eye’ –

DP competition on youtube • Voluntary breach code (public and private)• Awareness - Data Privacy Day

Data Protection - definitions

• Data controller “ a person who controls the contents and use

of personal data”• Data processor

“ a person who processes personal data on behalf of a data controller”

• Data subject “an individual who is the subject of personal data”

Personal and sensitive data• Personal Name, address, age, date of birth, phones,

assets, liabilities, financial statements, salary details, bank info., next of kin, holiday records, appraisal, staff disciplinary procedures, sick and medical certs, work history, quals, pps, skills, cv

• Sensitive Physical or mental health, trade union membership, racial origin, criminal convictions, religious or other beliefs, sexual life, alleged commission of offences, political opinions

- extra conditions required when using it - explicit consent - exemptions - medical purposes, legal advice, vital interests of

state, public interest, electoral purposes

Data protection in short

RIGHTSfo r

In d ivid u a ls

RESPONSIBILITIESfo r

u se rso f pe rso na l da ta

Data Protection Acts 1 98 8 & 2 00 3 create

Data Protection – basic principles 101

Rights of individuals• To fairness• To get a copy of personal information

(computer and organised manual) • To rectification of wrong information• To opt out (phone and email)• To complain to DPC

Data Protection

Rights of access- Apply in writing, sufficient information- Satisfy identity- Data supplied in intelligible format- Controller must give subject description of

personal data held, purpose and who it may be disclosed to

Restrictions- Investigation of crime, tax assessment- International relations of State- Legal privilege- Data kept by DP and OIC- Health and social work data – special

provisions

Rules of Data Protection

Data processing is anything done

with the life cycle of that data from

collection to disposal

Data Protection Life-cycle

Source: Data Protection Commissioner

Beginning

Getting the Data

Middle

While you have the data

End

Disposing of data

Inform and get consent

Justification to process

Respond to access requests

Specify purpose

Only gather what is required

Keep accurate

Keep secure and dispose securely

Disclose only if compatible or allowable exception

Have a retention policy

Data protection and consent• Consent generally required for release, but disclosed

without for security of state, international relations, investigating offences, order of court, prevent injury or damage

• Presumption in favour of access to one's own data• FoI generally has precedence in law over DP• 3rd party access - Personal information is exempt

from disclosure to third parties under the FoI Acts, subject to a number of exceptions

• Under data protection, protection of the individual's privacy is paramount, but "public interest“ test does not apply

Data Protection/FoIData protection FoI

Human right Citizens right

Co-operation Complimentary

All sectors Public sector

Info exempt from 3rd parties*

Not exempt – consent may be required

Living only Living and deceased

Focus on privacy Focus on openness

Right of access Right of access

40 days to respond 20 days to respond

Prejudice test Public interest

Data protection and …

• CCTVProportionate, specific use, inform, 28 days, protocol for Garda access

• Direct marketing40 days, opt-outs, unsolicited calls – fines, National Directory Database, consent

• RetentionEU directive, ISP access (2 years), no content

More CCTV units in the UK than the entire population of RoI (CIA Fact Book)

Covers Courtesy of LibraryThing.com

Courtesy of flickr.com

• Compliance is a legal requirement for all organisations public and private

• Strong records management, records retention, archiving

• Consent – best at point of capture, registration forms, applications, website etc.

• Awareness, training and DPC guidelines

• Remedy damage before enforcement and civil liability

Data Protection .. what to do

Data Protection .. what to do II • Common sense – DP policy, clear desk and

screen, lock & key, password protect, encrypt, dispose and destruct

• Security measures for data taken off-site

• Plan into action – notify DPC immediately if breach voluntarily and inform clients (stakeholders) without delay

• Clear disclosure awareness – no to parents, external colleges, companies, marketing purposes, police by protocol only, alumni, companies by explicit consent only

DP high profile breaches • jobs.ie, Bank of Ireland, HSE, M50 toll company, • DPC active on enforcements, all complaints

investigated• High profile cases vs. Irish Rail, Sunday World,

Dell, Revenue (staff accessing information on need-to-know basis), Ulster bank (bank and insurance cross marketing

• UK high profile DP case - 40 major companies facing legal action in construction industry for buying secret personal data and engaging in blacklisting – Laing O’Rourke, Balfour Beatty – intelligence database

Data Protection case studies • Prosecutions in text marketing sector in 2008• Prosecutions taken against – NTL, An Post, Tesco,

Dell, Total Fitness Ireland• Against Local Authority and Aer Rianta for excessive

harvesting of PPS details• Against Dept of Ed. for misuse of Trade Union details

– to withhold pay (not fair obtaining)• Code of practice around insurance and health sector

problematic • Investigations listed publically – name and shame,

reputational and business damage

Data Protection – some statistics

•1031 complaints v 658 in 2006

•Eurobarometer - 70% of Irish people concerned about individual data protection

•2008

•People feel public and private sectors keep personal information safe and secure, have controls in place to ensure employees cannot access inappropriately

•50%

•Medical records, financial history, credit card, PPS, Garda records, social welfare history, telephone, internet records, emails, CVs

•Concerns

(*source – Lansdowne Market Research 2008 on behalf of DP Commissioner’s office)

Data Protection - summary• Duty of care• Personal information should be accurate• Retain no longer than necessary• Right of access to personal data on computer and

since 2003 to manual data in a relevant filing system• Procedures in place before problems arise and

protocols if problems arise – avoid negative publicity, potentially damaging liability, enforcement orders from DPC - Reputational damage could be worse!

• Only available to those that need to have it and used only used for specified purposes

Data Protection• Data subject – (identifiable, living individual)• Access rights complaints major increase in 2008• Under Disability Act genetic testing prohibited in

relation to insurance, mortgages, pension • Outsourcing DP operations - obligations still apply

(e.g. payroll, call-centres) – on data processors on their behalf

• Security should be appropriate to potential harm and nature of data - Encryption – particularly important in case of financial and personal records and for vulnerable groups – e.g. Bord Gais, HSE, UK s/w

• Have regard to cost and technology available

Data Protection – be aware• 3rd party opinions only exempt if given in

confidence or understanding of • References not exempt• Interview notes may be accessible• Monitoring employees: YES, depending

on policy, conditions of employment e.g. acceptable email policy, social media and internet usage

Data Protection - high privacy thresholds

• Consent is required for police / other vetting• Automated decisions – e.g. creditworthiness

must have human input• Internet usage – ongoing monitoring is

allowed should be proportionate, not unduly intrusive, on reasonable suspicion

• Monitoring without CONSENT can be legitimate

• Call–recording without permission not allowed

Data protection - some trends• Social networking, web 2.0 applications

Increasing conflict and tensions, privacy issues, phising , hacking, disclosure, open model

• GPS / GIS Google street view, Microsoft VE - Issues of surveillance, private property, photographic data, image retention, trouble in Germany and Greece

• Patriot Act & Librariesstrong opposition from librarians

• Political awarenessIncreasingly topical, weekly high profile breachesPirate Party in Sweden

Data protection – some trends• Ethical issues

Detailed trail of personal information across public and private systems – how to balance ‘needs’ of the state with our own ethical rights – TMI, WTMI

• Data sharing 2008 data sharing deal with US – each country access to others fingerprint and DNA profiles + further sensitive data if necessary

• Electronic communications – principle of DP apply in relation to cookies, caller ID, spam, cold call opt-outs

• Biometrics – increasingly mainstream, compliant according to industry, DPC, unions disagree – argue for justification required prior to implementation – national gallery, schools etc.

‘BarackBerry’• “They’re going to have to pry it out of my hands.”• First Blackberry president• Connected• Emails and electronic communication subject to Presidential

Acts – stored and saved• Mobile phone data accessed by Verizon employees

Is this important to libraries• Librarians are information

professionals - public servants, funded by

taxpayer, spend public money, transparency!

• Libraries use, acquire, mine, harvest people’s

information on our own and other people’s behalf

- obligations and duties

• Libraries exist within wider organisational

structures that have legal information compliance

obligations

• Our customers are the public, we use their

personal data

• Libraries are accountable, trust is important

• “Tension between privacy issues and library’s need

to collect user data” (Coombs, 2004)

• Libraries recruit and employee people like any

other organisation

• Libraries are involved in tendering and public

procurement

• People who use libraries should have an

expectancy that we are doing things ‘right’ and

not just copyright

• Libraries are seen as a positive social force,

civic minded –• IFLA & FoI

• Information ethics part of our world –

plagiarism etc.

• Libraries have obligations like other

public bodies

• Librarians interview people be aware of

what this means

• Libraries are involved in web 2.0 and social media applications

• Libraries are required to give user options –

opt-in, opt-out, Reading History.

• Libraries keep and retain records

• Sensitive data, and consent - information

to 3rd (commercial) parties

• Libraries/librarians are traditionally

compliant, conscientious professionals

Is this important to libraries• Libraries accumulate huge data banks from library

systems and services – how this is potentially utilized is often outside of our control, particularly where library is used as an intermediary to access externally provided content

• Advent of participatory web – huge amounts of PII willingly displayed but do people understand (or care) about implications. Do libraries? Libraries traditionally have a culture of privacy, control, this is shifting … do we have a role in this???

Sources / references

• DPC presentation to IoT network 11/03/2009• www.dataprotection.ie • http://www.ico.gov.uk/ Information

Commissioners Office - UK• that personal privacy is a right, take steps to pr

otect it – winner of DP YouTube competition 2009

• Case studies 2008• DP channel

Terry O’Brien, Information Compliance officer

Waterford Institute of Technology

Thank youtpobrien@wit.ie

www.wit.ie