We have all seen tabloid headlines such as “Data protection kills pensioners” or “Privacy law protects Peados”. It only needs a modicum of data protection knowledge to understand that such headlines are ill-founded, display considerable ignorance of the law, and are complete rubbish. Sadly, the Secretary of State for Education, Michael Gove MP, is a believer in this type of claim.
Consider this comment from Mr. Gove in the Daily Telegraph last week where he put his name to a column which contained the following:
“….The only responsible body with the information we needed was Ofsted, which registers children’s homes – yet Ofsted was prevented by “data protection” rules, “child protection” concerns and other bewildering regulations from sharing that data with us, or even with the police…”.
…..In the name of “protecting children” by officially “protecting” their information, we had ended up helping the very people we were supposed to be protecting them from. We shielded the children from the authorities who needed to be looking out for them. An “out of sight, out of mind” culture developed”.
So there you have it: Mr Gove thinks that “data protection helps child abusers”. He is wrong of course – but on what page (or when) do you think the Daily Telegraph will publish a retraction? (The Daily Telegraph ran a news story based on Mr Gove’s conclusions entitled “Gove: 'Absurd' secrecy left care children at mercy of paedophiles”).
The article shows that neither the Minister nor his advisors understand that data protection does not stop any processing of personal data. All his Department need to do is ensure the processing has a Schedule 2 condition (e.g. necessary for the functions of a Government Department) and is fair to data subjects as well as a number of uncontroversial matters such as securing the personal data or getting rid of the personal data when they are no longer needed.
Furthermore, the Information Commissioner stated in a hasty press release issued last week that “The Commissioner’s advice has not been sought on any perceived difficulties about sharing care home information”. In other words, Mr Gove when expounding his erroneous views did not even bother to check his data protection conclusions when penning his column.
This is surprising as Mr. Gove, an ex-journalist for The Times, should know the value of “accurate reporting”. But what the heck, why let a few facts deter you from getting a good headline that shows that a Minister is actively “doing stuff” in the public interest.
However, the really scary thing is that this Cabinet Minister, who has exhibited his complete lack of knowledge about the application of the Data Protection Act, has powers bequeathed by the New Labour “surveillance state” Government, which can introduce wide ranging exemptions in respect of several Data Protection Principles.
So if Mr. Gove does not understand how the Act works, there is a real likelihood that he will not understand how his powers can wholly degrade the protection afforded by the Act.
To illustrate this, I refer to Section 12 of the Children Act 2004. This allows the Secretary of State create databases of children’s details and provides for powers where the application of several Principles can potentially be set aside.
Section 12, amongst other database powers, grants the Secretary of State powers to:
• identify the information which must be contained in any database (e.g. Mr Gove has powers to include excessive personal data in a database; if this power is used in this way it effectively provides for an exemption from the Third Principle by making excessive data collections, lawful).
• require a person to disclose information for inclusion in the database (e.g. Mr Gove has powers to demand the collection of personal data by law; the power, if used, can negate the fair obtaining requirements of the First Principle which require the data subject to be informed about the collection of personal data).
• require the disclosure of information included in any such database; (e.g. Mr Gove has additional powers to facilitate any data sharing he wants. Note that it is not the Data Protection Act that is stopping the data sharing he complains about in his Daily Telegraph column, but his own inability to ensure that the relevant powers are available to facilitate such data sharing).
• require any person to be given access to any such database for the purpose of adding or reading information; Mr Gove thus has powers to allow access to the database to any person.
• define the length of time for which information must be retained; (e.g. Mr Gove has powers to retain personal data for far longer than is actually necessary; if the power is used in this way it provides for an exemption from the Fifth Principle).
Section 12 also states that the Secretary of States may “give of advice in relation to rights under the Data Protection Act 1998”. Given his Daily Telegraph column, it is clear that any advice from his Department should be cross checked against what the Data Protection Act actually requires.
Finally, one has to recall that Mr. Gove (or “Mrs Blurt” to his friends on email) has a track record. He has shown that he has tried to evade obligations under the Freedom of Information Act; now it appears he may be doing the same for data protection.
In summary, this is a dangerous mix of power and ignorance.
References
Gove’s lack of knowledge about data protection is displayed on: http://www.telegraph.co.uk/health/children_shealth/10304696/Michael-Gove-Im-ending-this-scandal-over-childrens-care.html
ICO’s rebuttal of Mr Gove’s comments: http://www.ico.org.uk/news/latest_news/2013/ico-responds-to-michael-gove-article-daily-telegraph
Mr Gove’s attempted to circumvent the FOI obligations by using private emails from “Mrs Blurt” to discuss departmental business: see http://amberhawk.typepad.com/amberhawk/2011/09/could-mr-goves-emails-breach-the-data-protection-act-as-well-as-freedom-of-information.html (Note: “Mrs Blurt” waited for a Decision Notice from the ICO, appealed the Decision, but withdrew the appeal before it went to the Tribunal)
I suspect most Conservative Ministers have tried the “Mrs Blurt” approach to FOI; see “Do all Conservative Ministers use personal emails and texts to avoid FOIA?” http://amberhawk.typepad.com/amberhawk/2012/06/do-all-conservative-ministers-use-personal-emails-and-texts-to-avoid-foia.html
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