I recently requested the Information Commissioner’s Office (ICO)’s current (up-to-date) Freedom of Information Lines to Take (LTT) documents. The ICO responded by directing me to an archive of the LTTs from 2012, a list of the LTTs that have been withdrawn since then, and updated LTTs where they have changed since 2012. (There have been no new FOI LTTs.) I have indexed and summarised them below. These constitute current copies of all the LTTs; results from the Government’s archive website are confirmed as current. Where a FOI number has a * that indicates that this is LTT has been updated since 2012 and the link is therefore to a PDF. Where a LTT number is missing, that LTT has been withdrawn.
a public authority must comply with section 1(1) promptly and in any event not later than the twentieth working day following the date of receipt.
In their guidance on time limits for compliance with the Freedom of information Act, the Information Commissioner’s Office maintains that the requirement to respond “promptly” is separate and additional to the duty to respond “not later than the twentieth working day”:
21. The obligation to respond promptly means that an authority should comply with a request as soon as is reasonably practicable.
22. Whilst this is linked to the obligation to respond within 20 working days, it should be treated as a separate requirement.
23. An authority will therefore need to both respond promptly and within 20 working days in order to comply with section 10(1).
24. Authorities should regard the 20 working day limit as a ‘long stop’, in other words the latest possible date on which they may issue a response.
25. It also follows that an authority which provides its response close to, or on, the final day of the 20 working day limit ought to be able to both account for, and justify, the length of time taken to comply with the request.
Fine and dandy so far; “promptly” and “not later than the 20th working day” are separate.
The Data Protection Act section 7(8) says:
a data controller shall comply with a request under this section promptly and in any event before the end of the prescribed period beginning with the relevant day.
Ah, “promptly and in any event“, that phraseology is familiar. So I guess that these are two separate requirements, yes? Authorities should respond to simple / easy Subject Access Requests under the Data Protection Act “promptly” and thus well before the “prescribed period” (40 days) long stop, yes?
Here’s what the Information Commissioner’s Office has to say in their Subject Access Code of Practice.
The duty to comply promptly with a SAR clearly implies an obligation to act without unreasonable delay but, equally clearly, it does not oblige you to prioritise compliance over everything else. The 40-day long-stop period is generally accepted as striking the right balance in most cases between the rights of individuals to prompt access to their personal data and the need to accommodate the resource constraints of organisations to which SARs are made. Provided that you deal with the request in your normal course of business, without unreasonable delay, and within the 40-day period, you are likely to comply with the duty to comply promptly.
So for SARs the ICO defines “promptly” as “within the 40-day period.”
I asked the ICO about this, and they said:
Having considered your request, we have come to the view that any differences to the text in the guidance you cite are superficial rather than of any real substance, and simply reflect the fact that they were drafted by different people at different times, about different legislation, hence are not identically worded.
Although the promptness reference is explained in slightly different terms in our data protection and freedom of information guidance we do not consider that there is any difference in the position we take. Both are explained as being ‘long-stop’ provisions, indicating that 20 or 40 working days is the maximum amount of time that can be taken to respond. The FOI guidance states that public authorities will need to be able account for or justify the length of time taken to comply and the DPA guidance states that SARs need to be dealt with both within 40 days and without unreasonable delay. This goes to the same point, that the time taken to respond has to be reasonable/justifiable as well as within 20/40 days in order for the response to be considered as prompt.
I respectfully disagree. The ICO’s FOI guidance states that authorities will have to prove that they comply with both the requirement to respond “promptly” and the requirement to respond “not later than the twentieth working day“. Yet the ICO’s SAR Code of Practice states that provided a data controller has responded within the 40 working day limit, they will automatically have complied with the duty to respond “promptly“.
A mountain out of a molehill, perhaps, an esoteric difference – but I wonder why the ICO are taking the line that responses to subject access requests don’t have to be supplied any more promptly than 40 days. If Parliament had meant purely “within 40 days” they would no doubt have said just that and left the “promptly and in any event” out. No doubt that’s the ICO’s reasoning for time limits for Freedom of Information. So why so different for Subject Access Requests?
No doubt there are more important things to worry about, I know, but this bugs me. I’ve got it out of my system for a while now, I’ll shut up, don’t worry.
The esteemed Jon Baines has drawn my attention to the Tribunal caselaw on the subject.
— Jon Baines (@bainesy1969) May 24, 2015
Jon Baines’ blog on the subject is informative. My summary of the Judge’s decision is this:
- It takes time to do a proper FOI response, check it throughly and do a good job
- “Promptly” doesn’t mean immediately, it is more akin to “without delay“
- In the case he was looking at, it had been responded to “promptly” because it was “well within” the 20 working day limit
- There may be other cases where an authority will have to account for the time it took to respond
I guess that this says that there “may” be times when the Authority hasn’t responded “promptly” even where it has met the 20 working day long stop so is in keeping with the ICO’s guidance on FOI timescales, but it’s not exactly definitive…
I recently asked for the Information Commissioner’s Office’s “Lines to Take” documents giving guidance to their staff about their work under the Data Protection Act. These are previously unpublished. I’ve separated them into individual documents and I provide them below. Some of the documents provided seem to be Lines to Take under other regimes; some of them contain typos – I’d like to say that all typos in the documents are the ICO’s but I did a lot of copying and pasting when splitting the document up so I may have introduced errors; for the definitive version, check the original response. The summary is my own and may not be a fully accurate representation of the contents.
“Please note that, while contained in the list of current LTTs, the Line to Take for Domestic CCTV, and the Line to Take for DPA Section 56 – Enforced Subject Access are currently under review following recent developments, and are likely to be amended in due course.”
On self-incrimination. “An organisation does not have to comply with a subject access request to the extent which compliance would reveal evidence of an offence, (other than one under the DPA), which he could be exposed to proceedings for. Information provided in response to a subject access request cannot be used against a data controller in proceedings brought under the DPA.”
On the exemption for domestic purposes. “Section 36 provides an almost total exemption from the DPA. It exempts individuals from complying with all of the principles, all individual’s rights and notification. The only part of the DPA which still applies are the powers of the ICO, meaning the ICO could still investigate whether an individual had gone beyond the scope of the exemption.” Er… surely means that the only thing the ICO can investigate is somebody’s refusal to allow the ICO to investigate?!
The guidance for MPs and Constituents Complaints Files is apparently sensitive. “Internal guidance only. Whilst this information is freely available to Members, it is not published on our internet and it is asked that you do not share it verbatim with a requester.”
|192.com Standard Letter||Internet and Technology||The division of the Electoral Roll into full and edited versions as of 2002. Objections to processing by 192.com and the general lawfulness of similar services.|
|1st Principle DPA – Fair and lawful||Other||The obligations on data controllers to give certain key information to data subjects.|
|4th principle DPA – Accuracy of Health Records||Health||When is a diagnosis a fact? How should disagreements over diagnoses be dealt with? How can diagnoses be challenged?|
|6th principle DPA – Rights of data subjects||Other||The 6th Data Principle is only contravened if the data controller contravenes sections 7, 10, 11 or 12 of the DPA.|
|7th principle DPA – Destruction of personal data||Other||Whilst the Act doesn’t specify how confidential data should be destroyed, this is up to the data controller who must take care.|
|7th Principle DPA – Security||Other||The duty to take proportionate care of data, and to make sure this is continued when delegating within the controller’s own organisation and in any data processor’s organisation.|
|8th Principle DPA – Countries with adequacy||Other||A list of countries that the ICO consider have adequate data protection laws such that personal data may be transferred to them under the 8th Principle|
|8th Principle DPA – Embassies||Government-central||It used to be thought that our embassies abroad were our soil, but this isn’t the case. Foreign embassies on UK soil are part of the UK. The effect on the legality of transferring data is minimal.|
|Access to Adoption Records||Health||The specific statutory instrument that can be used to refuse access to data when disgruntled people ask for it following being turned down as potential adoptive parents.|
|Access to copies of a credit agreement, original signed copy, or bank statement.||Finance||The obligation to provide copies of credit agreements, and what lenders can and can’t do whilst this is pending. The right to obtain a computer printout of transactions for the £10 fee as opposed to paying for reprints of statements.|
|Access to Court Records||Police, legal & criminal justice||Where court records are available using the Court processes at a fee, then SARs fail. Otherwise, as long as the info is personal data and in a relevant filing system, SAR applies.|
|Access to deceased persons’ medical records||Health||The DPA doesn’t apply to dead people. Some health records may be obtainable under other legislation.|
|Access to information held by schools – maintained schools||Education||Parents / guardians may request their pupil’s records under education regulations, the school must respond with 15 days. They can only do a SAR if they act on behalf of the child and the child doesn’t have capacity. A child with capacity can make a SAR.|
|Access to information held by schools – non-maintained schools||Education||Academies and Free Schools don’t have the same obligations to provide pupil information to parents, though they do have to do a yearly report and are subject to SAR.|
|Access to Land Registry information||Government – central||The Land Registry give out personal data but this is in compliance with the Data Protection Act. A person can object using S10.|
|Access to proof of partners’ convictions / cautions by victims of domestic violence||Police, legal & criminal justice||Victims of domestic violence need proof of partners’ police and criminal records to qualify for legal aid; this is how they get it.|
|Access to solicitor’s files while under a lien.||Police, legal & criminal justice||Solicitors may withhold documents if their clients haven’t coughed up their fees; however, they must still respond to SARs.|
|Appealing a DN (decision notice)||Government – central||Don’t ask me why this is under the “Data Protection Act” lines to take… If the ICO have made a DN, parties can appeal to the first tier tribunal.|
|Automatic Number Plate Recognition (ANPR)||CCTV & optical surveillance||ANPR systems record personal data, therefore organisations using this must comply with the DPA.|
|Basic DPA definitions -DC, DS, DP, Personal data||Other||Key definitions of terms under the DPA.|
|Biometrics in Schools||Education||Protection of Freedoms Act 2012 places controls on the use of biometric systems in schools.|
|Body Worn Video (BWV)||CCTV & optical surveillance||Because body worn video is likely to be more intrusive, its use must be limited and there must be a privacy impact assessment.|
|CCTV in Classrooms||CCTV & optical surveillance||For “Classwatch” and similar systems, schools must follow the CCTV Code of Practice and consult parents.|
|CCTV signage where there is a potential detriment to individuals by identifying the Data Controller||CCTV & optical surveillance||For premises such as womens’ refuges and mental health care accommodation, where identifying the Data Controller may put people at risk, this lists what info must be put on CCTV notices.|
|Charging for public information||Government – central||(Again I don’t know why this is in DPA LTTs.) The charging for info under FOI or EIR.|
|CLI identification||Internet & Technology||“we may be able to look at a concern about this under the DPA and in particular the first principle.”|
|Cloud Computing and the US Patriot Act||Internet & Technology||Transferring data to America places it under the Patriot Act. Cloud data companies become data processors. If they comply with legal requirements they’re unlikely to face regulatory action.|
|Community CCTV schemes (access to footage)||CCTV & optical surveillance||The housing association is the data controller; privacy impact must be considered. Potential to view disturbing video.|
|Companies in Administration||Other||The administrator becomes the data controller. The ICO would struggle to take enforcement action.|
|Cookie Directive – New powers and obligations||Internet & Technology||(again I don’t know why this is under DPA) An introduction to the “new” EU cookie directive.|
|CRA Arrangements to pay – fairness of then registering a default||Finance||A default can legitimately be recorded when a creditor has failed to make three of their monthly payments, but they must not be worse off than somebody who hasn’t attempted to pay at all.|
|CRA Can I stop them from processing my personal data?||Finance||S14 only applies where information is inaccurate or out of date; S10 only where processing “unwarranted” so creditors can’t stop firms using their personal data.|
|CRA Default on a credit file Vs default under the CCA||Finance||A default notice isn’t necessary (though is advisable) for defaults to be recorded on a file as this is different from a default under the CRA.|
|CRA Defaults – Guidance for filing defaults||Finance||“the absence of a formal ‘default notice’ would not prevent a default from being registered on an individual’s credit reference file”|
|CRA Defaults – Necessity of recording of defaults with multiple CRAs.||Finance||Lenders can report defaults to any, none or all credit reference agencies as they see fit.|
|CRA Defaults – Recording of defaults relating to debts that have been sold.||Finance||Debts are often sold. As long as the sale is correctly recorded on the credit reference file there isn’t a problem.|
|CRA Defaults – Showing defaults relating to unenforceable debts.||Finance||Just because a debt isn’t enforceable doesn’t mean that it is incorrect to record defaults on a credit reference file.|
|CRA Do they require consent to process personal data?||Finance||“No.”|
|CRA How accounts included in a bankruptcy should be recorded||Finance||“Default date MUST be NO LATER than the date of the Bankruptcy. Settlement date (where shown) MUST be NO LATER than the date of Discharge.”|
|CRA How payments on a debt management plan should be recorded||Finance||Token payments in Debt Management Plans can be classed as a Default in some circumstances, but if the lender is genuinely recovering the debt through token payments then a default should not be recorded.|
|CRA None credit organisations passing information to a CRA?||Finance||Despite not being lenders, utility companies can legitimately supply info to credit reference agencies. Some tenants may voluntarily include their rent payments on their credit files to help repair their rating.|
|CRA Rapid updates and P4||Finance||All three Credit Reference Agencies have a fast-track update facility to correct mistakes on subjects’ records. They aren’t always required to use it.|
|DBS checks and filtering||Police, legal & criminal justice||As of 2013, certain cautions and offences “expire” and aren’t reported in response to disclosure and barring scheme checks. This gives details of how these and fixed penalty notices are dealt with.|
|Debt collectors||Finance||Sometimes they’re data processors, sometimes controllers. Mistaken identity concerns; Code of Practice etc.|
|Deceased Individuals – Information about.||Other||The DPA doesn’t apply to dead people. FOI may be useful. There’s a separate LTT for where people write a SAR then die before the SAR response.|
|Domestic CCTV||CCTV & optical surveillance||Under review as of May 2015. Domestic CCTV isn’t subject to the DPA even when it’s pointed at neighbours’ properties; but anti-harassment etc. legislation MAY be relevant.|
|DPA Definition – “Health record” vs “Accessible record”||Health||Esoteric info on definition of “health” and “accessible” records; the difference between the two is beyond me.|
|DPA Exemptions – Niche and Miscellaneous||Other||Manual data held by public authorities S33A, Parliamentary Privilege, Armed forces, Judicial appointments and honours, Crown employment, Management Forecasting, Corporate finance, Negotiations, Self-incrimination|
|DPA Exemptions – Overview||Other||A summary of DPA exemptions from obligations in SAR and non-disclosure.|
|DPA Exemptions – Section 28 – National Security||Government – central||The extent of the exemption and the certificate required to engage it.|
|DPA Exemptions -Section 29 – Crime and taxation||Police, legal & criminal justice||The degree of importance required for legitimate engagement of this exemption; the transfer of the exemption to other bodies etc.|
|DPA Exemptions – Section 30 – Health, education and social work||Health||Exemptions where providing info under SAR would damage the requester or anybody else, or where the subject doesn’t have capacity but objects to the info being provided to their representative.|
|DPA Exemptions – Section 31 -Regulatory activity||Government-central||The limitations on the exemption on “subject information provisions” where such would affect regulatory activity.|
|DPA Exemptions – Section 32 – Journalism, literature and art (the special purposes)||CCTV & optical surveillance||The factors required for the exemption to engage, and the sections of the act that are exempted. “Indeed, the only circumstance where an individual can make a claim for compensation relating to distress alone, (rather than damage and distress), is where the processing is for the special purposes.”|
|DPA Exemptions – Section 33 – Research, history and statistics||Education||The conditions required to engage the exemption, and the extent of the exemption.|
|DPA Exemptions – Section 34 – Information made available to the public by or under enactment||Government – central||Where a statutory organisation has to provide info under other legislation, e.g. the Companies Act, even at a fee, it’s exempt from SAR / non-disclosure requirements.|
|DPA Exemptions – Section 35 – Disclosures required by law or made in connection with legal proceedings||Police, legal & criminal justice||Mandatory and discretionary waiving of non-disclosure requirements where legislation or a specific court order applies.|
|DPA Exemptions – Section 36 – Domestic purposes||Other||Near total exemption except that the law still allows the ICO to investigate whether the exemption has been over-stepped. (What?!)|
|DPA Section 10 – Right to prevent processing||Other||The ICO will only investigate whether the controller responded within 21 days; it won’t make any decision on whether the processing should stop or not – only the Court can do that.|
|DPA Section 55 – Business to business||Employment||Standard letter saying the ICO won’t get involved in commercial disputes between businesses unless individuals have experienced substantial distress.|
|DPA Section 56 – Enforced Subject Access||Employment||Under review as of May 2015. Employers can force people to do a SAR to the police because this section hasn’t been implemented. Such SARs may contain extra info than the employer could get through other statutory schemes, such as the disclosure and barring service, and this isn’t good. There’s nothing the ICO can do.|
|Drones / Unmanned Aerial Systems (UAS)||CCTV & optical surveillance||When used commercially, a Privacy Impact Assessment is required.|
|DVLA releasing keeper details – Protection of Freedoms info only.||Government – central||Where a car park operator’s CCTV / ANPR catches a driver infringing its T&C’s, they’ve got 14 days to get details from the DVLA and issue a notice to the owner. In general, the ICO considers that if the operator doesn’t meet this deadline, the DVLA can still give out info even after the 14 days is up, even though the debt won’t be legally recoverable.|
|Elections||Political parties||Political campaigning is marketing. They can use the unedited electoral roll. Election addresses are exempt from individuals’ right to opt out of marketing materials, as are unaddressed envelopes or letters to “the occupier”. Live telephone calls are subject to the usual telemarketing rules; parties need an individual’s prior consent before subjecting them to automated calls, emails, texts or faxes. The SNP, Tories, Lib Dems and Labour have all had ICO enforcement notices after using automated calls. What happens to personal data held by an MP following dissolution and election. Guidance for local authority and devolved government elections.|
|Electoral Register||Government – local||The change to individual registration. Mandatory inclusion on the unedited register. Organisations entitled to access / use the unedited register. How to opt out. If your entry on the register puts you at risk, you can apply for “anonymous registration”.|
|Employer-funded pension or insurance schemes – sharing||Employment||Employers should gather the least possible info for the scheme and not use it for any other purpose.|
|Employers sharing personal data with unions||Employment||Some employees’ info may be passed to unions for them to recruit; otherwise it must be anonymised.|
|Employers using CCTV- summary||CCTV & optical surveillance||CCTV at work is intrusive. It must be used with discretion, particularly if covert. Info accidentally caught by cameras used for other things shouldn’t generally be used for disciplinary matters unless it’s such that an employer can’t ignore it. Vehicle monitoring should be minimal, particularly where a vehicle has dual business / private use.|
|Employers using gagging clauses relating to DPA, FOIA.||Employment||Sometimes employers include “gagging clauses” to stop employees using their rights under the DPA and/or FOIA. These don’t stop employees using their DPA / FOIA rights, but employees may be in breach of contract if they do (and if the contract is judged legally watertight.) The ICO only gets involved when the employee has actually made a request which the employer hasn’t complied with, and then won’t make any determination as to whether the gagging clause is fair.|
|Employers using information posted online||Employment||Where an employer comes across info on Facebook etc. this may feed into disciplinary investigations but its weight as hearsay should be taken into account. This doesn’t apply where employers actively monitor employees’ Facebook accounts etc.|
|Employment reference – Provision without consent.||Employment||Only provide info to 3rd parties with the employee’s consent or if you’re legally required to; be careful with sickness / medical info.|
|Encryption of mobile devices||Internet & Technology||This is recommended.|
|Exam Marks and Scripts||Education||Exam marks are exempt until the results are announced. SARs for such must be responded to within four months of the request or 40 days of the release of the results, whichever is sooner. Information recorded by candidates is exempt from SARs, but examiners’ comments subject to SAR.|
|Exemptions under FOIA / EIR and the PIT||Government – central||Absolute and qualified exemptions; class-based and prejudice-based; timescales for public interest test. (Don’t know why this is DPA…)|
|FOIA / EIR FAQs – Guidance docs Index||Government – central||Don’t ask me why the ICO released this as a DPA LTT – nor why they supplied it with no working links.|
|FOIA requests to Academies||Education||FOI again. All academies, by virtue of the Academies Act 2010, are subject to the Freedom of Information Act 2000.|
|FOIA timescales – requests to educational establishments||Education||FOI – For schools, the standard time limit for dealing with Freedom of Information requests is 20 school days, or 60 working days if this is shorter.|
|FOIA/ EIR – Internal reviews under||Government – central||FOI. Public authorities don’t have to do internal reviews under FOI, but most do. They are required to do them under EIR.|
|FOIA/EIR coverage – recent organisation changes||Government – central||FOI. ACPO, UCAS, FOS, Free schools now subject to FOIA; Duchy of Cornwall under EIR but not FOIA; Royal Mail not FOIA any more; Post Office still FOIA.|
|Free Electoral Roll – FAQs||Internet & Technology||“Intelligent Tracing” is broadly legit under the DPA, though causing people concern. The ICO has had discussions with them about mechanisms for people to “opt out” their data.|
|Gone away post and Telephone calls||Finance||If you’re receiving mail or telephone calls for people who don’t live there, you can tell the organisations and they must stop, though they can’t amend their data because the info isn’t being provided by the person they are attempting to contact. But some organisations must still send letters etc. due to requirements under the Consumer Credit Act.|
|Google Streetview||Internet & Technology||Dated (pre-implementation) advice indicates that blurring of faces etc. means they were relatively sure Streetview will be legit under DPA.|
|Health and Social Care data breaches (IG Toolkit)||Health||English data controllers must report breaches of health info using the “IG Toolkit”|
|Health Services and Social Care Services – Definitions/differences||Health||The ICO considers that “health” in the Data Protection Act covers some aspects of social care.|
|ICO and The Commissioner – FAQ||Other||What the ICO does, how the IC is appointed or got rid of, its sponsoring body, its budget, etc. etc.|
|ICO register of data controllers. Viewing and use of.||Other||The ICO makes the register of data controllers available by website and by DVD. It can be reused as long as not for nefarious purposes.|
|Location Data and Smartphones||Internet & Technology||Apps etc. must ask permission before collecting location data. Location data must be turned off by default.|
|London Gazette bankruptcy records||Finance||Because archives of the London Gazette is available online, records of “discharged” bankruptcies stay in the public domain. This isn’t really new; previously such would be available in libraries, and in any case some roles require that an individual has never been bankrupt.|
|MPs and Constituent’s Complaint Files||Political parties||MPs are data controllers. There are special rules for transfer or otherwise of people’s data to “new” MPs.|
|MPs and Elected Representatives – Disclosures to||Political parties||There’s legislation to allow easement of the DPA to make MP’s constituency casework easier; but there are some concerns for privacy so MPs are asked to tell the ICO if a constituent objects.|
|National Insurance Number as an identifier – DWP||Government – central||The use of NI numbers in bank statements etc. is legit under the DPA.|
|Occupational health referrals and data sharing||Employment||Rights and procedures when employees request medical information from an employee’s GP|
|Opt-Out UK Ltd||Direct marketing||“(Background information for internal use only)” OptOut may be sending “stop processing” requests to direct marketing organisations even where the person on behalf they’re sending it isn’t on that organisation’s list. Such organisations may need to confirm the ID of the requester. They should set up a “suppression list” of people who don’t want marketing, though they aren’t legally required to.|
|Planning Applications / Disclosures||Government – local||The requirements to publish information under the Town and Country Act mean that the DPA largely doesn’t apply, including SAR. Where sensitive information is published unredacted, special care must be taken including making the applicant aware.|
|Police & Crime Commissioners FAQs ( PCC )||Police, legal & criminal justice||Introduction to the “new” PCCs; requirements on PCCs to publish certain data; PCCs obligations under the DPA and FOIA; and transfer or functions from defunct Police Authorities to PCCs.|
|Police retention of data.||Police, legal & criminal justice||Police keep personal info for a minimum of 6 years, after which they decide whether to keep it longer; except for data on the PNC, which is kept until an individual’s 100th birthday. The PNC’s data controllers are “all forces in common”, and SARs must go to the ACPO.|
|Police retention periods – DNA, PoF Act and Biometrics||Police, legal & criminal justice||Written before the Protection of Freedoms Act, describes the required deletion of DNA samples etc. post ECHR judgment. Lists various retention times for various ages of convicts / arrestees etc.|
|Publication scheme for EIR||Government – central||EIR. Barring certain exemptions, authorities must pro-actively publish EIR online.|
|Recording calls and Fair processing||Internet & Technology||It’s not always necessary to tell people their phone calls are being recorded, unless recordings to be used for a different purpose than the original call. Some environments (e.g. call centres) mean that recording for e.g. training purposes may be assumed.|
|Refusal notice format / contents under FOIA/EIR||Government – central||FOI. Details of the required content of refusal notices under FOI / EIR.|
|Reproduction of information from Twitter||Internet & Technology||The context and recipients of a tweet determine whether republishing it may be “fair processing” of personal data.|
|Requests for a list of public authorities under EIR||Government – central||The EIR require each state to publish a list of public authorities. DEFRA does this in the UK.|
|Retention P.5 DPA||Other||The Act can’t describe retention periods for all potential circumstances, so here are some key aspects to take into account when deciding on them.|
|Retention and Copying of original documents||Employment||The DPA is concerned with information, not the physical documents in which it is written. There may be circumstances where employers etc. need to confirm ID with original documents.|
|SAR and third party data – summary||Other||Unless compelling reasons otherwise, the ICO encourages such disclosure. Includes factors to be considered.|
|SAR by a Trustee of a debtor in bankruptcy||Finance||A trustee of a debtor in bankruptcy can request information from a mortgage advice company under Section 366 of the Insolvency Act 1986 free of charge. This is independent of SAR rights. A SAR may return extra information.|
|SAR Counting the 40 days to respond. (General + Schools)||Education||SAR responses have to be sent (not received by the subject) within 40 days. This includes schools, irrespective of holidays, except for educational records which must be returned in 15 school days.|
|SAR fee – acceptable payment types||Other||Data controllers can request payment via a specific mechanism but not insist on it. If the data subject has made a payment in a manner generally accepted for payment in the UK, then the SAR obligations begin.|
|SAR Handling repeated requests||Other||This LTT says info sent in response to first SAR doesn’t have to be sent again in a repeat SAR (contrary to that stated in the SAR Code of Practice). Looks at time between repetitions etc. and other practicalities of dealing with repeat SARs.|
|SAR Health Records Fees||Health||SAR fee for data supplied in electronic format is max £10; for manual records £50. Inspection of health records is free if they’ve been amended in the last 40 days, £10 otherwise.|
|SAR Information exempt as may cause harm – Education.||Education||This exemption only applies to the specific subset of data whose release may cause harm. The ICO are likely to be swayed by medical opinions, but less so of non-medical opinions.|
|SAR Information exempt as may cause harm – Health.||Health||The ID of the medical professional who must make this decision; when standing decisions can be relied upon; when representatives of people without capacity can be legit.|
|SAR Information exempt as may cause harm – Social work||Health||Data Protection (Subject Access Modification) (Social Work) Order 2000 (SI2000/415)|
|SAR Information from joint accounts /policies.||Finance||Each person can get all the data through SAR.|
|SAR Information in a different language||Other||While good practice might suggest information be translated into English (or Welsh / Gaellic I guess) the DPA doesn’t require this as long as it is in an “intelligible form”.|
|SAR NHS England – CCGs and CSUs – who is the DC?||Health||NHS England. firstname.lastname@example.org|
|SAR Using S.7 to obtain “Evidence”||Police, legal & criminal justice||CPR disclosure doesn’t trump SAR provisions, but court may not enforce SAR rights in such circumstances.|
|SAR when the requestor dies during the process||Other||As long as requester still alive when SAR received, SAR must be processed and sent to rep / executor.|
|Sharing Box Office or ticketing Information||Direct marketing||When booking information is retained by theatres or venues and a travelling show company wants this info for direct marketing they usually shouldn’t be allowed it.|
|Shot gun licenses (certificates) and doctors’ records||Health||The ACPO wants a “tag” on health records of shotgun owners so the GP can warn the police if the person becomes a threat. The ICO thinks this disproportionate, but notes that the letter requesting medical opinion before the license is granted can stay in the notes.|
|Smart Meters||Internet & technology||Later in 2015, companies will start using smart meters that communicate via a Data Communications Company (Smart DCC Ltd). At the moment, “smart” meters communicate direct with energy and utility suppliers; this will swap over at some point. The DCC will have special licenses. This LTT gives various data protection advice on this new model.|
|Standard letter for EU funded projects approval under FP7||Other||Application packs for funding under the EC’s 7th Framework Programme (research and technology) requires applicants to get permission “where appropriate” from their country’s data regulator. This standard letter says the ICO doesn’t fulfil this function.|
|Surveillance Camera Commissioner (SCC)||CCTV & optical surveillance||The Protection of Freedoms Act introduced the Surveillance Camera Commissioner (SCC) who must promote good practice and encourage compliance amongst ‘relevant authorities’ using surveillance cameras, and has written a Code of Practice.|
|TPS – Details of the Telephone Preference Service Ltd||Internet & technology||The TPS runs its Preference Services and maintains “do not contact” lists under the Direct Marketing Association but under contract to OFCOM. The TPS also has a complaints handling procedure, though this isn’t statutory. It reports the themes of complaints to the ICO.|
|Universal Jobsmatch||Government – Central||Lots of people raised concerns about “Universal Jobsmatch” and lack of clarity about its processing of data. The DWP have now made it clearer; this is run by “Monster” for the DWP. Its use may be compulsory for some claimants.|
|US Surveillance, Snowden and Prism||Internet & Technology||“There are real issues about the extent to which US law enforcement agencies can access personal data of UK and other European citizens.” The ICO is working with other EU countries on this.|
|Use of publicly available information||Internet & Technology||“People search” websites are generally legit under the DPA. The ICO can look at people’s complaints about them.|
|Vehicle Registration Marks as personal data||CCTV & optical surveillance||When Vehicle Registration Marks are collected by ANPR for parking / speeding fines etc. they are personal data.|
|Win-Back Campaigns||Direct marketing||Where people have opted out of direct marketing, companies occasionally asking if they want to come back is OK, but only as part of normal communication. “If you don’t respond we will add you to our list” is particularly bad.|
The Information Commissioner’s Office have released to me their Casework Advice Notes. These previously unreleased documents guide their staff on how to deal with various circumstances when they are asked for a S50 assessment of a public authority’s compliance or otherwise with the Freedom of Information Act and/or the Environmental Information Regulations. Previously we have had Lines To Take, which tell caseworkers what stance to use on certain key aspects of the Act and Regulations. These Casework Advice Notes give more practical guidance.
Some of them are illuminating of the internal machinations of the ICO. I particularly like their advice on the use of S40(3), which basically says: only consider this exemption if you are absolutely forced to by the Public Authority’s intransigence; in all normal circumstances persuade the Authority to use a different exemption.
For ease of use and for interest of others, I have indexed the 18 CWAN (CaseWork Advice Notes) with a brief summary of the contents. My summaries may not be correct and should not be used as a definitive statement of the Notes. Click on the Casework Advice Notes number or the Subject Details to download a PDF of the real CWAN.
|CWAN number||FOI / EIR Section||Subjects||Details|
Prejudice to effective conduct of public affairs.
|Common problems||Lack of evidence that the Qualified Person (QP) has made a decision; problems with identifying the QP, reasonableness of QP’s decision.|
Prejudice to effective conduct of public affairs.
|Reasonable opinion||Change from “reasonable in substance and reasonably arrived at” due to difficulties in determination. ICO developed own definition, based on dictionary: “in accordance with reason; not irrational or absurd”. “Reasonable opinion” doesn’t have to be the only / “most” reasonable one, nor does the ICO have to agree with it.|
Information provided in confidence.
|Anonymised information about people and the duty of confidence & standard DN wording||Where it is not possible to identify the subject of information from the material to be disclosed, either on its own or together with other information available to the public, it is no longer necessary to consider each limb of the Section 41 test of confidence. Also provides boilerplate text to put in DNs.|
Cost of Compliance
|Exercising the Commissioner’s discretion to accept late claims of section 12||If a public authority has collated the requested material to justify usage of another exemption (e.g. s43) but then abandons the original exemption and attempts to rely on S12, the ICO does not uphold the S12 exemption as the material has already been collated and there would be little extra cost in supplying it.|
|5||EIR reg 12(4)(e) Internal communications.||Email chains as “internal communications”||In email chains, the sender and every recipient of every email in the chain must be in the authority for the exemption to apply. Caseworkers should broadly accept PA’s statement to this effect to minimise ICO investigative time. Each email must considered on its own; an email chain consists of multiple documents.|
|6||s1, Part II exemptions reg 5, reg 12||Email attachments||A request for an email usually includes any attachments. Where printed emails and attachments are supplied, ICO may ask PA for written statement detailing attachments were attached to which emails to mitigate confusion.|
Prohibitions on disclosure
|ECHR Article 8 (respect for private and family life) as a statutory prohibition||Rarely used as S40 and S38 deal with most issues. Posited example: an identified group of residents guilty of sexual assault but not specified which one so S40 and S38 don’t apply, but Article 8 may do. Process by which this is determined.|
Application for decision by Commissioner.
|Referencing Select Committee opinions and parliamentary proceedings in decision notices.||Parliamentary Privilege applies to Select Committees and thus DNs must not rely on their statements|
|9||S2, 12(1)(b)||Handling a suspicion of wrongdoing by a public authority in DNs.||“Case officers must take great care when drafting a DN in any case in which there is a suspicion of wrongdoing. If necessary, use a confidential annex rather than run the risk of revealing that there is a smoking gun.”|
|10||s2, Part II exemptions, reg 12, reg 13||Public domain – practical guidance||When considering a claimed exemption, ICO workers should do a brief Internet search to see if information already in public domain. Be careful about referring to Parliamentary material.|
Investigations and proceedings conducted by public authorities
|Evidence required to engage section 30(1)(a)||Any evidence generated after a decision not to contiue a criminal investigation cannot be subject to the S30(1)(a) exemption. But investigations to consider whether an offense has occurred do engage S30(1)(a) until and unless satisfied that offence hasn’t occurred. Police must state broad category of offense; other public authorities must be more specific.|
Publication schemes / info available by other means
|Approach to S19 and S21 exemptions||Where both claimed, ICO should consider S19 first, because if the material is correctly published and so S19 is upheld, S21 is upheld by default. If PA hasn’t used Commissioner?s model scheme, S19 exemption automatically denied.|
|13||S50 / Reg 18||DN drafting steps||Caseworkers must be careful and specific in DNs about actions they require PA to undertake, particularly avoiding phrase “the requested information”, to make the DN easier to enforce. Gives standard approaches to DNs on several common themes.|
Applicant’s personal data
|Applicant’s personal data||If a request is for personal data alone, caseworkers consider PA’s compliance with SAR. If the request is for a mix of own data and non-personal data and S12 / S14 exemption upheld, authority directed in DN footnote to respond to SAR. If S12 / S14 exemption not upheld, warn authority to use S40(5) for any personal data.|
|15||S40, Reg 13||Sensitive personal data and fairness||If request is for 3rd party sensitive personal data, nearly always “unfair” – ICO have boilerplate text for DN. If the 3rd party has actively published the info or has given consent to its release, then it is “fair” and S40 / Reg 13 don’t apply.|
|16||S40, Reg 13||Considering whether disclosure of personal data would be lawful||Caseworkers only consider this if release of info is “fair”. Release of info should be considered lawful unless and until evidence suggests otherwise. Statute, common law, duty of confidence or enforceable contract must be considered.|
|17||S40, R13||Data subject’s consent to disclosure||If 3rd party gives consent for release of their data within the statutory timescale of FoI request, it is absolute. If given outside this time, ICO must make interpretation as to whether this was a fully formed decision at the time the FoI request was made. If consent is actively NOT given, consideration must be given to whether info release would be “fair”. PAs are not required to ask data subject for consent, but in some circumstances it may be useful for the caseworker to suggest to the PA that they do so.|
|18||S40(4), R13(3)||Information exempt from subject access right||Caseworkers should only consider this exemption if claimed by the PA, and they should suggest the PA rely on other, less complicated exemptions. With rare exceptions, it is unlikely to be fair processing to release info about an individual to the public under FOI when exemptions mean they can’t get it via SAR.|
I won Paulley v Ministry of Justice (2015) – without legal representation or advice.
Last summer, I had a legal case against multiple companies based on this little debacle about railway accessibility. Nearly all the companies settled out of court with a non-disclosure agreement, so I can’t say who or what – other than to say I hopefully improved conditions for some disabled travellers a little, and that I was broadly satisfied.
However, one intransigent company refused to negotiate. We therefore ended up in a pre-trial hearing.
The Leeds County Court website states that blue badge parking is available if arranged in advance, but when I phoned the Court they flat denied this. They had no idea these spaces existed. They told me to park at a shopping centre some way away. My carer and I had a long push back.
I needed the loo as soon as I arrived (nerves!) The disabled toilet had an “Out of Order” sign on it. Receptionists and security didn’t know where there were any other accessible toilets. They eventually told me that the toilet was NOT out-of-order – it just had an “Out of Order” sign on it (for no known reason.) They unlocked it, it wasn’t broken and I used it. We left it unlocked.
I have hearing difficulties, particularly in large rooms or on conference calls. That’s why I was at Court for a hearing that would normally be held by conference phone call. Despite this, and despite having provided a loop for me many times in the past, there was no loop in the room. I struggled by. The judge referred the case for mediation, at my request.
After the hearing I needed the loo again. It was locked again! We had to get security to unlock it. It still had the sign on it, and it still wasn’t broken.
I complained, and wasn’t impressed with the Court Service’s response. I then sued the Court Service. The Treasury Solicitor made an out-of-court offer, including compensation. This was rubber stamped by a Judge. Case #1 against the Ministry of Justice settled.
The County Court Mediation Service wrote to me. They said they were a telephone-based mediation service. In this Kafkaesque world, they insisted I phone them to arrange mediation. I phoned up and explained I can’t do mediation by telephone due to hearing loss. I asked what alternative would they offer? Their answer: Sod all. The Mediation Service told me that they offer mediation by telephone, or nothing.
When I asked what reasonable adjustments they made for deaf people, their staff told me that I either had to use a text phone or a sign language interpreter (who would translate back and forth on the phone.) I didn’t think either option would give me a fair chance, so I got quite cross. I told the Mediation Service to sort it or I would sue them for disability discrimination. They claimed it is not possible to sue the Court service, at which point I said “Do you want a bet? I have already. Twice.”
The telephonist had previously claimed she couldn’t put me through to her manager, but at that point suddenly decided she could. He told me they can do face to face mediation for deaf people, and that his own employee was wrong. He arranged a date for it to happen at Leeds county court.
When I turned up at Court (NB: in a case about wheelchair access) I discovered the room booked for the mediation was totally inaccessible to wheelchair users (steps, narrow corridors…) The mediator and staff scrambled at the last minute to find another room. This was doing my already nervous state no good whatsoever, as you can imagine. When we finally entered the room, they hadn’t provided a hearing loop. I complained, so they gave me a directional listener (which they seem to think is a loop); then when I complained again, staff brought in a huge loop system of wires and gadgets which would take ages to install. By this time we were well into the 60 minutes allotted for mediation. The mediator had to move from the judge’s table to sit directly in front of me, and we got by. The Courts never set up in the loop. The mediation was successful.
Before we left, I needed the loo. The disabled toilet was engaged. I waited. And waited. And waited. Eventually my carer knocked on the door. (We left it as long as possible; I hate having to knock as there are times I take a while in a toilet due to disability and I don’t like people knocking on me.) We got no answer, so (due to my desperate need for the loo and just in case somebody had fallen over) we went to Reception to ask them to check the toilet. They merrily informed us that the disabled toilet was out-of-order, but they hadn’t put a sign on it. Taste the irony: last time I found it locked with an “out-of-order” sign even though it was working fine; this time it actually WAS out-of-order but they hadn’t put a sign.
At least this time staff knew where the alternative disabled toilet is, but even Toilet #2 had no soap, no soap dispenser nor any indication there ever had been one….
The Ministry of Justice didn’t respond to my complaint, so I sued them again. They refused to negotiate. (Case #2.) It’s now 10 months later, and the trial and verdict were today.
I was suing the Ministry of Justice, represented at the hearing by a top barrister instructed by the Government Legal Service – Alexander Modgill. A very capable and experienced barrister. He did his clients proud: the cross-examination was a most rigorous, draining and unpleasant experience; I don’t know how barristers do it!
On my side? Me. No legal training, no legal advice, and no representation. Suing the Ministry of Justice in its own buildings, using its own procedures. Talk about David and Goliath!
Deputy District Judge Branchflower found against me on most counts. His judgment (paraphrased) was that because I was eventually able to have face-to-face mediation, access the alternative room and hear the mediator there was no discrimination, despite the intense frustration I experienced. I respectfully disagree: I think any reasonable person would be wound up and upset by what happened, which isn’t a good frame of mind to attempt mediation.
The Judge decided that the M. O. J. discriminated against me when I rang them. The mediation service’s initial insistence that the mediation has to be by telephone and blanket refusal to consider any alternative was discrimination. He awarded damages (dosh) for injury to feelings (at the lowest amount possible.)
It is now public record that the Ministry of Justice discriminated against me counter to the Equality Act 2010.
The irony of this success has gone to my head somewhat (I’ll squash it back down, sorry!) My childish glee at winning this case against such a “foe” aside, I hope my legal action has made a minor difference on the ground. Leeds County Court’s management committee met with me a couple of weeks ago, to discuss access difficulties and how the Court could be more pro-active on improving things. This should hopefully make things slightly better for disabled people accessing Court services in the future.
It just goes to show that even a disabled “Litigant in Person” can take on the big cheeses and win.
(My guide on suing about disability discrimination as a Litigant in Person, “Legal Suage for Crips”, is half written and will eventually appear on this website…)
With thanks to my excellent carer Mike.
Twitter works well: Twitter handle kingqueen3065
Otherwise fill in the form below and it will email me. Sorry, I hate CAPTCHA too, but I don’t want to be inundated with spam :/
It’s really, really rubbish that 69% of polling stations are inaccessible. I was forced to vote in the street once, after the school that housed the polling station moved it into an inaccessible classroom without consulting or informing the Council. Then the polling booths are only suitable for people standing up.
But at least I can vote (or spoil my ballot paper or whatever.) There are many other disabled people who can’t, because the polling station isn’t physically accessible for people with mobility or dexterity impairments, or the polling station hasn’t provided the adjustments needed so that blind people, dyslexic people etc. can use the ballot paper. Or because the institution they are in hasn’t bothered to arrange for them to vote. Or because they are room or bed-bound due to lack of proper facilities and social support. And I could go on.
No doubt some people are thinking: why not do a Postal Vote? In my case it’s a fight against institutionalisation: the care home in which I live unilaterally registered all of its inmates for the Postal Vote without asking them or even telling them; so being the contrary bolshy git I am, I was determined to turn up in person – I want to be able to vote just as everybody else can, in the polling station. In any case, it’s widely known that the postal vote procedure is a nightmare for people with visual impairment, learning difficulties and so on.
Now I know what you’re thinking about Unity Law: corporate lawyers looking for a fast buck? The difference is, I have ultimate faith in Unity Law’s integrity, having worked with them for years: they do what they do to improve access with disabled people, not for the money. (I’m really cynical, so that’s high praise from me!!!)
If you experience difficulty voting on Thursday, and you’re on Twitter, please tweet with hashtag #PolledOut and the site of your polling station. Unity Law will then attempt to get the problem sorted, hopefully for this time if it isn’t too late but if not for the next election.
And on another note, if you’re sick of the election, sick of the Government, sick of the labeling and blaming of disabled people and other convenient scapegoats, I’ve put together a Youtube playlist called FUCK THE TORIES of cheery, irreverent and cathartic rabble-rousing music to cheer us all up a bit. (It may be a little justifiably sweary…) With thanks to DPAC.
I am truly humbled and embarrassed to have been selected by Professor Peter Beresford OBE as his choice of “Hero” for the year. For those that don’t know him, he is a tireless fighter for human rights for disabled people and others who has done a phenomenal amount to influence the social policy agenda towards the rights and needs of people. I have immense respect for him. To be declared a hero by such a stalwart… I am speechless.
if we are having 2014 heroes and villains, mine is caped care home crusader Doug Paulley, @kingqueen3065 my villain in chief Duncan Smith
— Peter Beresford (@BeresfordPeter) December 22, 2014
As his villain, Peter chose Ian Duncan-Smith. I agree entirely. IDS has been found to have massaged figures, he demonises welfare benefit recipients and has caused the death and suffering of innumerable people, most notably disabled people. He is a ring-leader in the nasty cripple-kicking, disemboweling and most destructive Government I have ever experienced. But given that Peter has already chosen him, I will choose somebody else.
I am in danger of falling into a trite trap: award recipients and givers always say “There is too much good competition and it is too hard to choose” – but it is. Many people are unsung heroes and have made a massive, positive impact in my life this last year: family (especially parents), friends, care workers (especially Mike), Church staff and volunteers, Oxfam staff (Louisa), volunteers and customers etc. – but they aren’t public figures.
I have been truly flabbergasted by the huge support I have received from all quarters in my recent public battle over wheelchair spaces. Chris Fry, Natalie Rodgers, Unity Law and Cloisters Chambers have really stuck their neck out, without them my legal battles would not have been what they are; and indeed the Equality and Human Rights Commission who have funded my case.
I’ve decided to choose a Group of people as my “Hero” of 2014: Transport for All.
I have found them truly revelatory and awe-inspiring: their staff – especially Lianna and Faryal – and their members. I was in tears when I saw the number of people who had come out in support of “my” case against FirstBus. There are far too many influential and powerful people to mention here – but special mentions must include Chris (Squirrelpot), Sue Groves, Tracey Proudlock, Martha Ellis, Paula Peters and so, so many others. You guys have truly inspired me: I am in awe of all that you achieve (Crossrail, for example) through your incredible energy and constant, hugely successful campaigning. Long may you continue, and God bless you all.
Clare Pelham, CEO of Leonard Cheshire.
Clare Pelham is a phony.
In my view, she is the antithesis to everything good about Transport for All. She is an overpaid (£140,000+) leader of a charity that fundamentally provides social (notably residential) care to disabled people (including me,) yet she has self-appointed herself as ambassador and representative of disabled people (of which she is not one) and seems to measure her success purely in the number of column inches she manages to glean for herself and her band of self-selected (non-disabled) cronies. Any disabled peoples’ rights she spouts are purely a mechanism to this end.
She is a purveyor of saccharine sweet vomit-inducing homilies whilst actively undermining and disempowering both those who deliver the services for which she claims credit AND those disabled people she illegitimately claims to represent. She has actively attacked service user involvement and co-production within Leonard Cheshire, and shown at best complete disinterest about the quality of the services “her” residents pay for.
It is clear to me, and to many other right-thinking disabled people, that she is only interested in campaigning and not in service provision; and even then she only campaigns when it serves her purposes of self-aggrandisement and career-building. She jumps on the bandwagon of campaigns, but only if if they give her exposure.
As usual, I am expressing widely held views by a wide range of committed disabled people, but Clare Pelham probably isn’t even aware people think this of her as she surrounds herself solely with people she thinks important, blanking everybody else. Her judgement as to who is important is warped: she brown noses the “Great and the Good” (usually non-disabled do-gooders) whilst treating service users and advocates etc. with contempt to the point of blatant rudeness.
Worst of all, she is a duplicitous fraud, as exposed in the current (Christmas) issue of Private Eye (which references this chintzy horrificness at the Huff, the Leonard Cheshire Jobs Page and her salary as quoted in Leonard Cheshire’s Annual Report and Accounts.)
I could be accused of biting the hand that feeds me here, as Leonard Cheshire are paid £1,000 per week for me to live in one of their care homes; also I could be accused of bias, given that the charity has previously been found to have institutionally abused me – but the truth is I think that most disabled people would agree that their cause would be better served if Clare Pelham was not around; if she buggered off back to Coca Cola, IBM, the Judicial Appointments Commission or any of her other numerous previous positions.
I say so as she does not represent anybody, is transparently solely interested in her own status and as her presence actively undermines the voices of those “hard to reach” groups she claims to represent.
I now await the inevitable backlash for daring to speak my mind against the oligarchy – I wonder how long it will take, and how blatant or pseudo-underhand it will be this time
On to 2015! Seasons Greetings and Happy New Year to all; and may we inch ever further towards rights and equality.
Wheelchair give way
Don’t you dare make a fuss
Mum and her precious are taking the bus
The baby on board must be supersize-plus
Weight of a freighter of ham – fat pram
In gentle, less-manic and sweet days of yore.
Pushchairs collapsed or were left by the door
Not in the shop taking up the whole floor
Causing a jam
Fat pram, fat pram
“Yes, it folds down!” – to the width of a cow –
But she hasn’t got time to be doing that now.
With shopping and tweeting to manage somehow
She won’t give a flying…
Martin Newell, “Sunday Express” 14/12/14
I appreciate and am truly humbled my the support offered and given freely by so many people and organisations (in particular disabled peoples’ organisations). I welcome non-partisan parliamentary support for this issue.
I wish to make it clear, however, that there are certain groups whose politics and behaviour is such that I have profound idealogical concerns about working with them. Whilst they are free to access any of the information I have put out, and I cannot control what they do with it, I will not work with the BNP, the EDL, UKIP or allied parties. Hence anything with such organisations’ stamps on is not sanctioned by me.