The Information Commissioner has criticised the Government’s proposals in relation to the retention of DNA personal data as removing the protection of the First, Third, Fifth and Sixth Data Protection Principles from data subjects. Although his measured memorandum to Parliament does not couch his concerns in this way, anyone how has knowledge of how data protection works will arrive at a very stark conclusion.
The Commissioner states that “he is concerned that the evidence for the 6 year retention period for 'non-convicted' adults is still unreliable” and is worried about “inconsistencies in approach” towards retention. He says “In particular the proposed 6 year retention period for 16-17 year olds arrested for but not convicted of serious crime sits oddly with the argument that the evidence does not support any such distinction between serious and minor crimes in the proposed 6 year retention period for 'non-convicted' adults”.
The Commissioner's first concern is that Home Office research is "misleading" because the policy of “comparing those who have been arrested with the general population is misleading as the police are more likely to re-arrest those who have already been arrested because they now have an arrest record and are on the Police National Computer (PNC)”. This reiterates the unfair processing claim in relation to the re-arrest of black men made by the Human Rights Commission in its evidence to Parliament.
In the Commissioner's opinion the “Home Office "estimated hazard curve" shows a significant narrowing around the 2 year mark. It is strongly arguable that this is the point where the interference no longer remains justifiable”. In other words, a two year retention period for those arrested and not convicted.
The Commissioner is also of the view that “the decision to remove a DNA record should be a pro-active one by the police not one that is triggered only by a complaint from the individual to whom the record relates”. He adds that “in the absence of any complaint from an individual, the police continue to retain DNA data in circumstances that clearly meet the defined conditions for removal, for example where the arrest was unlawful, that would be contrary to the requirements of the Data Protection Act 1998”.
He adds “Whether personal data are irrelevant, excessive or kept for longer than is necessary is not dependent on whether an application for removal of the data has been made”. In other words, the legislation is removing the protection of the Third and Fifth Data Protection Principles.
The Commissioner states that “the Bill makes no provisions for an independent appeal mechanism against a chief officer's decision under the proposed removal arrangements” adding that “the Home Secretary still appears to regard the question of whether there is a need for an appeal system as something for discussion and debate rather than as a given”. In other words, the Government’s proposals significantly diminish the ability of the data subject to exercise the right to object to the processing (and as a conseqeunce the Sixth Principle).
In his conclusion “the Commissioner welcomes the Government's efforts to put the operation of the national DNA database on a sound legal basis”. However “he remains concerned that the way this evidence is being interpreted at present does not provide an appropriate basis for the proposed retention periods” (i.e. no Schedule 2 condition as required by the First Principle) and that “The Commissioner does not consider that the evidence presented supports a general retention period of anything like six years”.
He believes that “there still need to be additional safeguards surrounding the decision to retain on acquittal, the proactive review of records subject to deletion and an appropriate appeal mechanism to protect against unwarranted decisions to retain records”.
In conclusion, can repeat the conclusion I reached in “Nine principles for assessing whether privacy is protected in a surveillance society (Part 1) – 2008” which explains why the current framework of privacy protection in the UK is so deficient. The Government’s Crime and Security Bill and its DNA retention policies is another example in a very long list of examples where there is a systemic undermining of the protection afforded by the data protection principles (and Article 8 human rights).
References: ICO’s memorandum on: https://www.publications.parliament.uk/pa/cm200910/cmpublic/crimeandsecurity/memos/uccr0502.htm. The document "Nine principles for assessing whether privacy is protected in a surveillance society – 2008" (two parts) on https://www.amberhawk.com/policydoc.asp. Human Rights Commission "Evidence to the Home Office re the DNA database" is downloadable from https://www.equalityhumanrights.com/legislative-framework/consultation-responses/response-to-consultation-on-dna-database-proposals/.