Data Protection &Data Protection &Law EnforcementLaw Enforcement

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 – Police States

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– Better cooperation/support

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

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 - practicalExemption means police may covertly

collect dataPolice may process data without consent if

necessary for the investigation & detection of offences

Accurate, Complete, up to dateAccurate, Complete, up to date

Often a reactive rather than proactive task

2nd Principle

Accurate - practicalAccurate - practicalIf a person gives false identity details when

questioned, police must correct details when become aware of true identity.

Accurate – case studyAccurate – case study Terrorist suspect has minor conviction Appeals outcome, change of penalty Police record incorrectly identifies Court location

and penalty imposed Subject Access Request & makes complaint Police obliged to correct record and review

recording procedures

Specified PurposeSpecified Purpose

Part of obligations when obtaining to specify purpose

Cannot expand purpose without reverting to individual

3rd Principle

Purpose - practicalPurpose - practical

Police purpose is defined in law and cannot be expanded with new role assigned to police by Government

Purpose – case studyPurpose – case studyVictim Support body collects data from

victims to offer supportPolice hold data for law enforcement

purposePolice want to use data to assist Victim

Support in referralsThis is a new purpose and requires consent

of victims

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 - practicalAny DC can give data to police where

necessary to investigate crimeDC must be satisfied that is genuine

investigation – may contact superior officerSpecific procedures should be in place for

access to data such as telephone records

Relevant and not excessiveRelevant and not excessive

• Police forces require information in order to operate

• Accept it is difficult to judge relevance• DPAs reluctant to second guess police

forces

5th Principle

Relevant – case studyRelevant – case study• Female teacher involved in public order

offences when drunk• “Friendly” with police officers• Computer record contains racy

comments about her• She is aware of nature of record• Information not relevant & is deleted

5th Principle

Retention of dataRetention of data Legal obligations to hold data? Can older reports be anonymised where no

action was taken? Provision for spent convictions may result in

files being culled over time

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

Police officer checks vehicle file on behalf of friend

Friend wants to know identity of ex-partner’s new boyfriend

Improper access identified from examination of access log

New audit policy to identify misuse

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 If release would prejudice investigation Exemption does not apply once

investigation complete (unless would influence another investigation)

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 force 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 records cannot be accessed unless by

law (vetting of child care workers)Provision not yet in place in Ireland so police

end up dealing with ~10,000 SAR per annum

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

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

Frequently Frequently Asked QuestionsAsked Questions

How must an Access Request be How must an Access Request be handled?handled?

Quickly, within 21 days Ensure you are dealing with correct DS

– Identity documents Can ask DS to restrict search

– Criminal record; firearm license. Can ask DS if he/she would be satisfied with

viewing file (esp. CCTV)

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 respond to a request for Can I respond to a request for data from abroad?data from abroad?

Difficult to justify in absence of Mutual Assistance Treaty or other legal instrument

May use compatibility test when cooperating with other police forces

Controllee exchange via Europol or Schengen Information Systems

Thank you for Thank you for listeninglistening