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DATA PROTECTION AND FREEDOM OF INFORMATION

Important legislation relating to the storage and disclosure of

information

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DATA PROTECTION ACT1998

• Act applies to specific activity of storing data NOT to any particular organisation

• Also applies to disclosure of information held.

• Provides another possible route for protection of privacy

• Enforced by Information Commissioner

• Significant improvement on 1984 Act

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STORAGE OF DATA must comply with 8 data protection principles

• Fairly & lawfully processed• Processed for limited purposes• Adequate, relevant & not excessive• Accurate• Not kept longer than necessary• Processed in accordance with subject’s rights• Secure• Not transferred to countries without adequate

protection

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What is covered?

• Information that is stored manually as well as electronically

• Definition of Data very wide• Myths about use• ‘nowhere does the act place blanket bars on

the disclosure of information’• Overuse & misuse - organisations may use

the DP legislation to avoid providing information.

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Examples of wrongful disclosure

• Croyden Council fined £100,000 – bag containing confidential data stolen from public house

• UK Nursing & Midwifery Council received £150,000 penalty. Lost 3 DVDs related to a misconduct hearing. Contained confidential information. Had no policy for handling of such data e.g. re encryption.

• Department of Justice Northern Ireland fined £185,000 – sale of filing cabinet containing personal data

JANUARY 2015

• ‘Office’ – data breach exposed more than 1 million customer details – ICO orders an improvement to DP practices

• Staysure.co.uk Limited, an online insurance company, fined over £175,000 after IT security failings allowed hackers to access customer records.

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Act affects media in 2 ways

• A. when a journalist acquires information to be put into a database the principles apply & whenever information is extracted and published etc = disclosure

And• B. as journalists process information they

may have problems complying with the privacy rights of anyone about whom they hold information

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Some cases

• Naomi Campbell – claim under DP Act not discussed

• Douglas & Zeta-Jones (£50 each for breach) – ‘Hello’ tried to use exemption re photos but this rejected as no real Public Interest.

• Murray v Big Pictures (photos on CD Rom)• Stone v SE Coast Strategic Health Auth.

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Journalistic Material (s.32)

• Exemptions from:• The data protection principles (apart from

security)• Data subject access rights• Rights of data subjects to prevent data

processing• Rights of subjects to correct inaccuracies• Rights concerning automated decision

making

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3 conditions must be met• 1. Processing is undertaken with a view to

publication of any journalistic, literary or artistic material (undefined in Act)

• 2. The Data Controller believes that having regard to the special importance of freedom of expression, publication is in the public interest

• 3. Data Controller reasonably believes that in all the circumstances compliance with provision in question is incompatible with the purposes of journalism.

Unlawfully obtaining data

• It is an offence to unlawfully obtain data

• Criminal Justice and Immigration Act 2008 contains a new defence for journalists if they can show they acted with a view to publication of journalistic, literary or artistic material & in the reasonable belief that it was in the public interest to obtain/disclose information. NOT IN FORCE YET

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Almost Finally….

• Court can take into account any relevant code of practice

• Note powers of Information Commissioner

• Appeal from IC to Information Tribunal.

…And Finally

• Note the recommendations in the Leveson Report to make it easier for police to seize material from journalists gained through their work.

• Proposal is to still require approval from judge but would no longer need to show that they had tried to acquire material elsewhere first.

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FREEDOM OF INFORMATION

• The dawning of a new age?• Working of Act monitored by Information

Commissioner – see website for details of latest decisions.

• FOI Act perceived as great benefit to investigative journalism. Advice on how to proceed on ICO site and also McNae’s online.

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TRANSPARENCY & EXPOSURE

• ‘There is not a crime, there is not a dodge, there is not a trick, there is not a swindle which does not live by secrecy. Get these things out in the open, describe them, attack them, ridicule them in the press and sooner or later public opinion will sweep them away’

Joseph Pulitzer – newspaper owner

What FOI taught us in 2012

• 43,586,400 fake pound coins in circulation – check your change!

• Foreign Office spent £10,000 to carry out ‘essential maintenance’ on Albert the Snake – he was re-stuffed.

• How much Essex police spent on a ‘lion’ hunt in August - £3,600.

• For other info see Information Commissioner website & CFOI website.

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AN IMPORTANT TOOL..

• ..for journalists & anyone else wanting official information

• FOI and Environmental Regulations came into force 1stJan 2005

• 100,000 public bodies affected• Gives general right of access to all types

of recorded information held by public bodies, sets out the exemptions & obligations

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THE BASIC FOI RIGHT

• S 1(1) (a) - right to be informed in writing whether public authority holds the information requested

• S 1 (1) (b) – right to have that information communicated to the requester

• You do not have to give reason for request.

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SCOPE OF THE RIGHT

• Request for information widely defined (s. 8)

• Limit to resources that must be expended (s.12) [Government would like to restrict access further – see CFOI site]

• Duty to advise & assist requesters (s.16 & s.45 Code of Practice)

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EXEMPTIONS 1

• 23 EXEMPTIONS - 2 groups• a. Those that apply to a whole category of

information e.g. information re investigations & proceedings conducted by public authority, court records, trade secrets

If asked for this type of information then body can claim exemption without having to show that harm will result from disclosure

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EXEMPTIONS & PUBLIC INTEREST

• b. those that are subject to prejudice test e.g. Where disclosure would prejudice or be likely to prejudice the interests of the UK or the prevention or detection of crime

• public interest test comes into play

• Is it better to disclose or not to disclose?

• Information Commissioner sets out guidelines - but see VETO provision!

THE VETO – ‘a constitutional aberration’

• Included in Act as a last resort

• Allows either prime minister or other minister to veto information

• Instances of use:

• Iraq War papers

• Prince Charles letters – R (Evans) v Att.-Gen. [2014] EWCA 254 = latest hearing

• High Speed Rail 2 report19/04/23 22

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Freedom of information in Practice

• In 2009: Ministry of Justice• 17,822 requests• Information disclosed in full – 59%• Information withheld in full – 23%• Exemption used most often = personal

data (s.40) ( 3 times as often as nearest other)

• Cases can drag on a long time - See Sugar v BBC

David Bieber

• Request by Daily Mail

• Legal Aid granted to DB - convicted murderer

• Story in Daily Mail followed FOI request

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Policy formulation & ministerial communication (s.35)

• Interests protected:• ‘thinking space’• Ministerial collective responsibility• Uninhibited discussion between ministers in a

formal setting – described as ‘essential’ by Min of Justice

• D f ES v IC & Evening Standard (UKIT EA/2006/0006)

• Cabinet Office v IC (UKIT EA/2010/0031) ( Westland Affair and Heseltine resignation 1986)

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Private Information about individuals (s.40)

• Interests protected:-• Privacy• Unfair release of personal information• Sensitive personal data

• Release can be justified where there is a pressing social need

• House of Commons v IC (EA/2007/0060 & [2008] EWHC 1084 (Admin) – MPs expenses

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Legally privileged information(s.42)

• Interests protected:

• Confidentiality of communications between lawyer & client

• Administration of justice

• Ability of clients to seek legal advice

• BERR v O’Brien & ICO [2009] EWHC 164

• Disclosure may serve public interest where there has been wrongdoing

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CONSEQUENCES FOR JOURNALISTS?

• The end of exclusives? The response will be publicly available so others may use it.

• Increased self-censorship by public bodies? Fewer minutes so that any paper trail will be reduced & information about decisions will not be available

• Putting a price on information – FOI has created a bureaucracy that costs money - see above.

• The emergence of FOI specialists - will it divide journalists between the processors (‘churnalists’) and ‘proper’ investigative journalists?