Data Protection: An enabler?

1. Data Protection: An enabler? David Freeland, Senior Policy Officer 23 October 2014

2. An international act… • “We've got a piece of legislation called the Data Protection Act. It's UK legislation but I feel certain that you must have something similar in Scotland.” • A high street financial institution

3. A balancing act… • “Whereas data-processing systems are designed to serve man; whereas they must, whatever the nationality or residence of natural persons, respect their fundamental rights and freedoms, notably the right to privacy, and contribute to economic and social progress, trade expansion and the well-being of individuals” • Recital 2, European Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data

4. What is personal data? • Personal data relate to a living individual who can be identified from those data and/or other information and includes opinions and intentions of the data controller or any other person in respect of the individual.

5. What is sensitive personal data? • Sensitive personal data relate to racial or ethnic origin, political opinions, religious beliefs, trade union membership, health, sexual life and criminal activity.

6. What records are covered? • Electronic • Data • Texts • Images • Recordings • Manual records • Intention of being automated • Structured filing system • Unstructured records – public bodies

7. The 8 Data Protection Principles • Personal information must be… • Processed fairly and lawfully • Obtained only for one or more specified lawful purposes • Adequate, relevant and not excessive • Accurate and, where necessary, kept up to date • Kept for no longer than is necessary • Processed in accordance with individuals’ rights • Subject to appropriate technical and organisational measures to prevent the unauthorised or unlawful processing, or the accidental loss, destruction, or damage to, personal data • Only transferred to a country or territory outside the EEA where adequate levels of protection for the rights and freedoms of individuals in relation to the processing of personal data can be ensured

8. Lawful – conditions for processing Personal data Sensitive data Explicit consent Employment law Vital interests Not-for-profit TU/religious/ political/philosophical groups Put in public domain by the individual Legal proceedings/advice Functions under enactment Anti-fraud activity Medical purposes Equal opps monitoring Substantial public interest (SI 2000/417) • Consent • Contract • Legal obligation • Vital interests • Administration of justice • Public function in the public interest • Legitimate interests of the data controller and third party but not prejudicial to individual

9. Lawful – conditions for processing Personal data Sensitive data Explicit consent Employment law Vital interests Not-for-profit TU/religious/ political/philosophical groups Put in public domain by the individual Legal proceedings/advice Functions under enactment Anti-fraud activity Medical purposes Equal opps monitoring Substantial public interest (SI 2000/417) • Consent • Contract • Legal obligation • Vital interests • Administration of justice • Public function in the public interest • Legitimate interests of the data controller and third party but not prejudicial to individual

10. Additional conditions (SI 2000/417) • The processing is in the substantial public interest • Must be carried out without explicit consent so as not to prejudicethe purpose or function • Necessary for the detection or prevention of any unlawful act (or failure to act) • Necessary for a function designed to protect the public against • dishonesty, malpractice, serious improper conduct, incompetence or unfitness of any person, or • Mismanagement in the administration of, or failures in services provided by, any body or association

11. Crime and investigations • Section 29: Crime and taxation exemption • Purpose: detecting or preventing a crime • Exempt from giving fair processing information and giving information in response to a SAR to the extent to which provision would be likely to prejudicethe investigation • You can share intelligence that may help detect or prevent a crime on a need-to-know basis

12. Data Sharing Code of Practice • ICO required by law to produce • Approved by Secretary of State and UK Parliament • Not following Code is not necessarily a DPA breach • Provides ‘good practice’ advice • Admissible in court proceedings • Poses questions you need to answer

13. Putting it into practice • Clear policies, guidance and procedures • Staff training – initial and refresher • Clear lines of escalation and decision making • Audit trails, and audit the audit trails • Work with appropriate people in your organisation – data protection specialists, lawyers, internal audit • Take account of professional standards in handling personal information • Appropriate contacts in other organisations

14. Key points • Data protection is a framework, not a barrier • Lawful, proportionate and relevant information sharing only • Right information to the right people at the right time • Be prepared – know the legal basis, and have an audit trail • How would you want your information to be treated? • What harm is likely to result from not sharing?

15. Keep in touch • Scotland Office: • 45 Melville Street • Edinburgh EH3 7HL • T: 0131 244 9001 E:scotland@ico.org.uk • Subscribe to our e-newsletter at www.ico.org.uk or find us on… • @iconews • /iconews