Post on 19-Jan-2016
Data Protection for heads ofData Protection for heads ofGovernment DepartmentsGovernment Departments
Seán SweeneyAssistant Commissioner
Office of the Data Protection CommissionerIreland
Gibraltar
January 27th 2006
Presentation OutlinePresentation Outline Background – Human Rights Data Protection Principles Rights of data subjects Some FAQs
Why Data Protection?Why Data Protection?
Post-Word War II emphasis on human rights
George Orwell, “1984” (published in 1949) International Agreements on Human Rights Development of computer power
Privacy: Legal developmentPrivacy: Legal developmentUniversal Declaration on Human Rights
(1948)European Convention on Human Rights
(1950)Convention 108 (Council of Europe, 1981)
Background
UN Universal Declaration UN Universal Declaration on Human Rights, 1948on Human Rights, 1948
Article 12: No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence ... Everyone has the right to the protection of the law against such interference ….
European Convention on European Convention on Human Rights, 1950Human Rights, 1950
Article 8: Everyone has the right to respect for his private and family life, his home and his correspondence … There shall be no interference by a public authority with this right except such as is necessary in a democratic society
Background
Key conceptKey concept
Privacy is a
Human Right
Council of Europe Council of Europe Convention, 1981Convention, 1981
Also called “Convention 108”Deals specifically with data protectionIreland’s Data Protection Act 1988 gives
effect to this Convention
Directive 95/46/ECDirective 95/46/ECHarmonisation across EU.
– Free movement of data across EU
Extends DP to manual records.
Key conceptKey concept
Data Protection Laws
are one method of
protecting privacy rights.
Essential pointsEssential pointsPeople have a fundamental right to privacy
– You are legally obliged to recognise this right
Showing that you recognise and protect that right makes good sense– Increased confidence/trust of customers
How DP legislation workHow DP legislation work
By imposing obligations on those who process personal data;
By providing rights to individuals regarding how their data are processed.
Limited exemptions:Limited exemptions:
Data exempt on National Security grounds.
Data that is processed for personal domestic or recreational purposes
Data Protection Principles.Data Protection Principles.
1. Fair obtaining consent
2. Accurate
3. Specified purpose
4. No further processing Unless compatible
5. Relevant, not excessive
6. Retention period
7. Safe & secure
8. Comply with access request
Obtain & Process Fairly IObtain & Process Fairly I Data controller must give full information about
– identity– purposes– disclosees– any other data necessary for “fairness”
Third party data controllers– must contact data subject to provide these details– must give name of original data controller
1st Principle
Obtain & Process Fairly IIObtain & Process Fairly II One of these conditions required: Consent Legal obligation Contract with individual Necessary to protect vital interests Necessary for a public function (Justice) necessary for ‘legitimate interests’
1st Principle
Processing Sensitive Data (1)Processing Sensitive Data (1)
One of these additional conditions is required Explicit consent Necessary under employment law To prevent injury or protect vital interests Legal advice For Medical Purposes Statutory function
1st Principle
Processing Sensitive Data (2)Processing Sensitive Data (2)
Specific Government sector provisions Administration of benefit or pension by
Crown Tax collection
1st Principle
What are sensitive data?What are sensitive data? Physical or mental health Racial origin Political opinions Religious or other beliefs Sexual life Criminal convictions Alleged commission of offence Trade Union membership
Fair Obtaining - practicalFair Obtaining - practicalTransparency is the key issueGenerally, a person should know
– who is processing his/her data– and for what purpose
Fair Obtaining - practicalFair Obtaining - practicalConsent is easiest to rely upon
– If from 3rd party, is their responsibility to demonstrate legitimacy to you
Consent has to be freely givenStatutory provisions allow Govt Depts to
process data without consent – in certain circumstances
Fair Obtaining - practicalFair Obtaining - practicalCCTV – well placed signage meets
transparency requirementConsent not required if CCTV for security
– Legitimate interestConsent not required if for health & safety
– Legal obligationThough consent not required, transparency
requires information is supplied (sign)
Fair Obtaining - practicalFair Obtaining - practicalIf relying on consent for data obtained on a
form– Require any consent clause to be at least as big
a font size as the data collection element of form
– If on-line, require a privacy statement that covers transparency & fair obtaining requirements
Accurate, Complete, up to dateAccurate, Complete, up to date
Often a reactive rather than proactive task
2nd Principle
Accurate - practicalAccurate - practical If you change your address and do not tell a
Government Department, it is not at fault for sending mail to your old address.
However, if mail is returned to the sender as undeliverable, the sender must act by at least not sending any more mail to that address.
Specified PurposeSpecified Purpose
Part of obligations when obtaining to specify purpose
Cannot expand purpose without reverting to individual
3rd Principle
Purpose - practicalPurpose - practical
Purpose might be implied from transaction
- such as for administration of benefit.Otherwise, should be clearly referred to
Purpose – case studyPurpose – case study Teacher strike action Dept Education access payroll database to identify
teachers paying subs to particular union Use information to deduct pay of all union
members Data not obtained for that purpose, Dept has to repay teachers
Disclosing personal dataDisclosing personal data Further processing not generally permitted –
compatibility test section 19 – lifts the restrictions on disclosure:
– crime; tax; State security;– required urgently to protect life and limb– required by law or court order– with consent of, or on behalf of, data subject
4th Principle
Disclosure PolicyDisclosure PolicyThe Data Controller should have a policy
in place to determine how requests for data from third parties are handled.
This policy should be consulted by appropriate staff members
Disclosure - practicalDisclosure - practicalAn example of a compatible disclosure is
where you supply data to an organisation in order to get a product/service. If that organisation must supply your data to a third party in order to get that product/service delivered, it is a compatible disclosure.
Disclosure - practicalDisclosure - practicalArmy deafness claimsDept Defence supplied list of claimants to
Dept Social Welfare to check if also claimed there
Disclosure as not one Data ControllerNot lawful, as anti-fraud exemption is case-
by-case
Disclosure – case studyDisclosure – case studyLocal Authority published planning
applications on line (incl identity documents)
Motivated by drive for more e-GovernmentLegislation allowed files to be consulted by
any member of publicOn-line publication went beyond legal
requirement
Relevant and not excessiveRelevant and not excessive
Do you need all this data?
- look a form and see if you need all data
- can data collected be culled over time?
Different policies for different types of file
5th Principle
Retention of dataRetention of data Legal obligations to hold data? Customer files
– Do you need to hold all that data?
Personnel files– Revenue requirement?
Must have policy thought through– Defend retention as necessary for purpose.
6th Principle
Retention – HR filesRetention – HR files When employees leaves/retires, employer might
have long term need to hold onto certain data– Dates of employment– Positions held– Tax record– Injuries
But other data has no purpose beyond the time an ex-employee might seek a reference– Assessments & evaluations
6th Principle
Retention – Query filesRetention – Query files
Inquiries may be logged and retained for short period in case they develop into substantive files
But if issue doesn’t develop, file should be reviewed– If no purpose, delete file– May retain anonymised details for statistical
purposes
6th Principle
Retention – Financial recordRetention – Financial record
E-government may result in credit card details being collected and retained
May make future transactions easier and more secure
Can only be retained with customer consent!
6th Principle
Security ProceduresSecurity ProceduresSecurity measures
Appropriate security measures• Appropriate to the harm that might result..• Appropriate to the nature of the data
May have regard to cost of implementation May have regard to the current state of technology Staff must know and comply with measures Internal review of security measures-part of
Internal Audit function ?
7th Principle
Data Protection Training.Data Protection Training.Obligation on employer to ensure staff
are aware of data protection security obligations (especially access).– Training– Can be satisfied by a simple circular in some
cases, by a formal course in others
Data ProcessorsData Processors
Agents and sub-contractors
There must be a written contract in place
Data Controller must take reasonable steps to ensure compliance with security measures
Security - practicalSecurity - practical Security standard should be reviewed
- if the types of data being processed are changed;- if the organisation’s resources increase;- at least on an annual basis to see if new measures may be employed- state sector can’t plead poverty – must be at leading edge
Security - practicalSecurity - practicalAccess to data should be on a need to know
basisAccess controls should be known about,
enforced and reviewed
Security – case studySecurity – case study
Lottery winner wins €100million+Her file in Dept of Social & Family Affairs
is viewed by large number of Dept’s staff shortly after win
Dept immediately identify unusual traffic and identify staff involved
Rights of IndividualsRights of Individualso To have data processed in accordance
with principleso To get a copy of personal informationo To correct information if it is wrongo To opt out of direct marketingo To complain to the Data Protection
Commissioner
8th Principle
Access RequestsAccess Requests
Section 14 –exceptions section 19. Availability of material subject to receipt of an
Access Request May question:
– Relevance– Excessive nature– Retention, etc
Scope of Access RequestScope of Access Request
Applies to all manual and electronic records in existence at the time of receipt of an access request – regardless of when the record was created.
Opinion given in confidenceOpinion given in confidenceExempt from an access request if the
expression of an opinion was given in confidence or under the understanding it would be treated as confidential.
This is useful when giving references
Exempt from Access RequestsExempt from Access Requests Data relating to a criminal investigation
Includes disciplinary investigations
a claim of liability Data covered by legal privilege
Access – Disciplinary Access – Disciplinary InvestigationInvestigation
Exempt if access would prejudice investigation
No longer exempt after investigation has concluded
Employee Access RightsEmployee Access Rights
Same rights as any data subject Not all documents with employee name
are personal dataAuthoring document in work capacity does
not mean that document is personal.
Access Requests - ResourcesAccess Requests - Resources Should not require significant resources
Low rate of requests in general
Retention principle should encourage deletion of data on a regular basis, thus limiting the amount of data to be searched
Access Requests - PracticalAccess Requests - Practical Staff should be able to identify a subject
access request when one is receivedNecessary because of deadline
Ideally, have an identified point of contact within Dept to handle requests
Structured filesStructured files Must be able to search files
By name of data subject?By other reasonable identifier?By date/file reference supplied by data
subjectElectronic records easier to search than
manual records
Enforced subject accessEnforced subject access An employer cannot ask an employee to
use his/her access right to obtain data in order to gain/retain employmentPolice and credit records cannot be accessed
unless by law
EmpowermentEmpowerment
The Right of Access empowers individuals by enabling them to supervise the processing of their personal data.
Right to correct/eraseRight to correct/erase
Personal data must be:– Corrected, if inaccurate; or– Deleted, if should not be held (very rare).
Should not be a significant issue if organisation well run– May get DS complaining about data being held
Direct MarketingDirect MarketingCommonest topic for complaints
– So expect people will complainMust be able to administer a “do not mail”
list/suppression fileMust tell DS source of data Government Information campaigns are
direct marketing
Public RegisterPublic Register
Describe Data handling practices– Purpose Transfers abroad– Type of data Disclosures
Public: transparency and opennessWill involve careful thought initially, but
little ongoing resources
Why Register?Why Register? Is a legal obligation But also a very useful way for Data Protection
Commissioner to interact with Data Controllers Helps Data Controllers focus on Data Protection
at time of registration
Who is responsible?Who is responsible? DP is a management issue HR or IT sections may have role in
administration of DP regime Managers responsible to ensure DP regime is
correct Must consider DP aspect of all initiatives
involving personal data Privacy Impact Assessments?
Frequently Frequently Asked QuestionsAsked Questions
How must an Access Request be How must an Access Request be handled?handled?
Quickly, within 21 daysEnsure you are dealing with correct DS
– Identity documentsCan ask DS to restrict searchCan ask DS if he/she would be satisfied
with viewing file
Can an employer Can an employer monitor staff?monitor staff?
Yes, depending on the conditions of any in-house policy document.
Monitoring should be proportionate and as least intrusive as possible.
Examination of e-mail content, web profiles should be done in context of disciplinary inquiry.
Can monitoring occur Can monitoring occur without employee consent?without employee consent?Whilst transparency is fundamental to
the fair obtaining principle, consent is not always required.
Where the employer can rely on the legitimate interest provision, consent is not required.
What about covert What about covert surveillance?surveillance?
Not generally permittedHowever, if investigating serious matter,
limited, focused short term covert monitoring may be allowed
Exceptional circumstances only
Can I get a copy of Can I get a copy of my personnel file?my personnel file?
You have a right to a copy of any record relating to you – including personnel files, assessments, evaluations and interview notes.
Opinions given in confidence may be withheld.
Can I outsource data?Can I outsource data?No difficulty if you use a contract with
your data processor.If you transfer data outside the EEA, will
have to meet certain conditions.So, may have to review current and
planned use of data processors.You should also be aware of your role in
insuring agents behave appropriately.
Can I put employee details Can I put employee details on website?on website?
Certain details may be appropriate– Name, position, contact details, special
trainingOther details are not necessary
– Photographs, salary, family details
Thank you for Thank you for listeninglistening