"Information Compliance - FoI, data protection and libraries". Presentation given by Terry O'Brien at Joint English / Irish IIUG Conference, Institute of Technology, Blanchardstown, Dublin, Ireland, June 2009

1. Information Compliance:FoI, Data Protection and librariesTerry O’Brien, tpobrien@wit.ieInformation Compliance OfficerWaterford Institute of TechnologyE/IIIUG June 2009Institute of Technology Blanchardstown

2. Freedom of information Data Protection

3. Context of information compliance What is information compliance – primarily compliance with legal obligations and responsibilities under FoI and DP Responsibilities in maintaining the confidentiality, integrity and availability of information (City University London) Privacy, ethics, copyright, ownership, censorship, connectivity, intellectual property, re-use of public sector information, harvesting, data mining, blogging, IM, social networks, email policy, internet usage, surveillance, PII (Personally Identifiable Information), liability, obligations, legal requirements, plagiarism, information ethics,

4. Freedom of information Sweden 1766, Finland 1951, Irish background – Government reform, Ethics in Public Office Act 1995, Public Service Management Act 1997, Strategic Management Initiative – delivery of better government Counterpoint to Official Secrets Act 1963 – government openness, accountability, public participation in government Beef Tribunal – disconnect between government and public access to information 1966 US FOI Act context of failure of govt to account to Congress re; Vietnam War

5. Freedom of Information 101 Legislation –FoI Act 1997, FoI (Amendment) Act 2003 Regulations (Statutory Instruments) 1998-2006 Dept. of Finance CPU Guidelines Establishment of OIC Principles – openness, transparency, accountability FoI Act imposes duty to assist requestor Role of FoI officer – honest broker, facilitator, encouraged to answer requests outside of FoI

8. FoI – what is a record A record is defined as including any memorandum, book, plan, map, drawing, diagram, pictorial or graphic work or other documents, any photograph, film or recording, or any form in which data are held This includes paper or electronic diaries, e-mails (not stored on a back-up system), draft records, electronic records, x-rays even post-it notes etc.

9. Freedom of Information FoI give power a face, i.e. about who makes the decisions and why – accountability Power without a face as represented by Kafka in ‘The Trial’

10. Freedom of information - current Current FOI requests in 2008 up to 12,672 (+18%), Depts. of Taoiseach, Finance, Enterprise HSE receives most requests Journalists represent 15% of all requests (+100%) e.g. FAS expense accounts Increase a by-product of downturn, “holding institutions to account” State bodies outside scope,– VECs, CAO, State Examinations Commission, An Garda, FSRAI, NTMA, Pensions Reserve Commission

11. FoI - statistics Requests to Public Bodies under FOI Act 1999 -2008

12. Freedom of information 140,000 requests since introduced 70% + granted 85,000 personal information 304 appealed to OIC 73% members of public or representative bodies, 15% journalists, 6% business, staff of public bodies 5%, others, members of Oireachtas 1% Release patterns: civil service lagging behind – 36%, 54% local authorities, HSE 70%, 3rd level 48% but trend very much downward

14. Freedom of information “Every person has a right to and must be offered access to any record held by a public body. The right has been broadly interpreted and the exceptions have been narrowly interpreted” Reasons or motivation for seeking access are irrelevant Not limited to ‘interested’ parties (except in cases of personal information, but there are exemptions

15. FoI – key elements S28.5(a) Public interest test (harm test) “on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld” “Public interest” is a vague concept - does not mean interesting to the public! S18 – right for reasons for decisions – if affected, material interest

16. FoI - types of requests Sample requests – tenders, financial information, travel claims / requests for access to personal records (interview feedback), shortlisting criteria, model answers, and scripts, medical records, reasons for decisions made etc. FoIexposed – 700m Bertie Bowl, Industrial schools, TD and Cllr expenses, Public funds – tendering, public procurement, interview notes and marks, references (potentially), inspection of nursing homes, crèches, schools inspection reports

17. FoI exemptions Section 10 – Records do not exist Section 11 – Deferral of access to records Section 12 – Manner of access to records Section 19 – Meetings of government Section 20 – Deliberations of public bodies Section 21 – Functions and negotiations of public bodies Section 24 – Security, defence, IR Section 26 – Information obtained in confidence Section 27 – Commercially sensitive Section 28 – Personal information Section 29 – 3rd party consultation Section 32 – Non-disclosure

18. FoI – ‘letting in the light?’ FOI – a brief review FoI amendments seen as a retrograde step, 2003 – “put genie back in the bottle”, rushed through, OIC resigns, no consultation Charging schedule seen in negative terms (up front fees etc.), Cabinet records – 10 years Many bodies still remain outside FoI Sign of a mature liberal democracy

19. FoI - summary Rationale in 70 countries essentially the same – empowerment of the public FoIrole in “changing social contract between public service and the public” Ongoing tensions between governments and FoI in Ireland and internationally Reflects a rights-based approach – right to know what is being done by government in people’s name “governmental hygiene measure” – keep government honest, discourage corruption (FoI, The First Decade, OIC 2008)

20. FoI - International ALA annual event 16/3 James Madison US FOI 1966 (74, 76, 78) – federal agencies access to all federal records 9 specific exemptions “with a deep sense of pride that the United States is an open society in which the peoples right to know is cherished and guarded” (LBJ, 1966) UK / Scotland – separate legislation. Scottish is seen as more progressive – more positive approach to access for children and those with disability - “ a person who requests information .. Is entitled to receive it”, “as much about culture as it is about legislation” (2004) “we have clearly got the balance wrong when online business have higher standards of transparency than the public services” (Gordon Brown)

21. FoI - the future “economic downturn will increase dependence of public on the state and government agencies” – state will be collecting, processing, maintaining more information about individuals (OIC Annual Report 2008) Comply with legal obligations in face of fewer resources, yet increased demand

22. FoI – some references Role of FoI office www.foi.gov.ie/ Office of Information Commissioner OIC www.oic.ie Central Policy Unit Section 23 notice Re-use of public sector information http://www.psi.gov.ie/ FoI Annual Report 2008 OIC decisions http://www.psi.gov.ie/ Bodies covered by FoI http://www.foi.gov.ie/bodies-covered-by-foi DCU FAQs http://www.dcu.ie/foi/faq.shtml#6

23. Barack Obama on 1st day in office “ A democracy requires accountability, and accountability requires transparency. As Justice Louis Brandeis wrote, "sunlight is said to be the best of disinfectants." In our democracy, the Freedom of Information Act (FOIA), which encourages accountability through transparency, is the most prominent expression of a profound national commitment to ensuring an open Government. At the heart of that commitment is the idea that accountability is in the interest of the Government and the citizenry alike.The Freedom of Information Act should be administered with a clear presumption: In the face of doubt, openness prevails. All agencies should adopt a presumption in favor of disclosure”

24. Data Protection Human right Personal privacy, affects every day life Not absolute - tension with freedom of expression, rights of others LRC (1998) “..basic human right .. Fundamental in a civilised legal system..” Constitution implicit right to personal privacy ECHR article 8 explicit right “right to respect for private and family life”

25. Data Protection and the law Data Protection legislation – rights based 1988 Data Protection Act & 2003 Data Protection (amendment) Acts, DPC office est. 1989 Data Protection directive 95/46/EC EC Electronic privacy regulations Disability Act 2005 Good Friday Agreement Bunreacht na hEireann Convention on Human Rights Council of Europe DP convention EU Charter Fundamental rights fairness and consent Lisbon Treaty also makes reference

26. Data Protection Commissioner Role – codes of practice, guidance, advice, education and support, public register, reports, investigations, audits, work with other Regulators Powers – notice, enforcement, compliance, entry and inspection. Prosecute, fines up to €250,000 Role of commissioner in EU consistent – ombudsman (resolution), enforcer (compliance) educational (promote and advocacy) registration Article 29 Working Party – harmonise application of DP across EU

27. DPC role Approach of DPC – education and promotion, supportive, part of current Dept. of Justice review group Audit resource for organisations ‘private I, public eye’ – DP competition on youtube Voluntary breach code (public and private) Awareness - Data Privacy Day

29. Data Protection - definitions Data controller “ a person who controls the contents and use of personal data” Data processor “ a person who processes personal data on behalf of a data controller” Data subject “an individual who is the subject of personal data”

31. Data Protection – basic principles 101 Rights of individuals To fairness To get a copy of personal information (computer and organised manual) To rectification of wrong information To opt out (phone and email) To complain to DPC

33. Satisfy identity

34. Data supplied in intelligible format

36. International relations of State

37. Legal privilege

38. Data kept by DP and OIC

40. Data processing is anything done with the life cycle of that data from collection to disposal

41. Data Protection Life-cycle Source: Data Protection Commissioner

42. Data protection and consent Consent generally required for release, but disclosed without for security of state, international relations, investigating offences, order of court, prevent injury or damage Presumption in favour of access to one's own data FoI generally has precedence in law over DP 3rd party access - Personal information is exempt from disclosure to third parties under the FoIActs, subject to a number of exceptions Under data protection, protection of the individual's privacy is paramount, but "public interest“ test does not apply

43. Data Protection/FoI

44. Data protection and … CCTV Proportionate, specific use, inform, 28 days, protocol for Garda access Direct marketing 40 days, opt-outs, unsolicited calls – fines, National Directory Database, consent Retention EU directive, ISP access (2 years), no content

45. More CCTV units in the UK than the entire population of RoI(CIA Fact Book) Covers Courtesy of LibraryThing.com

46. Courtesy of flickr.com

47. Data Protection .. what to do

48. Data Protection .. what to do II

49. DP high profile breaches jobs.ie, Bank of Ireland, HSE, M50 toll company, DPC active on enforcements, all complaints investigated High profile cases vs. Irish Rail, Sunday World, Dell, Revenue (staff accessing information on need-to-know basis), Ulster bank (bank and insurance cross marketing UK high profile DP case - 40 major companies facing legal action in construction industry for buying secret personal data and engaging in blacklisting – Laing O’Rourke, Balfour Beatty – intelligence database

50. Data Protection case studies Prosecutions in text marketing sector in 2008 Prosecutions taken against – NTL, An Post, Tesco, Dell, Total Fitness Ireland Against Local Authority and Aer Rianta for excessive harvesting of PPS details Against Dept of Ed. for misuse of Trade Union details – to withhold pay (not fair obtaining) Code of practice around insurance and health sector problematic Investigations listed publically – name and shame, reputational and business damage

51. Data Protection – some statistics (*source – Lansdowne Market Research 2008 on behalf of DP Commissioner’s office)

52. Data Protection - summary Duty of care Personal information should be accurate Retain no longer than necessary Right of access to personal data on computer and since 2003 to manual data in a relevant filing system Procedures in place before problems arise and protocols if problems arise – avoid negative publicity, potentially damaging liability, enforcement orders from DPC - Reputational damage could be worse! Only available to those that need to have it and used only used for specified purposes

53. Data Protection Data subject – (identifiable, living individual) Access rights complaints major increase in 2008 Under Disability Act genetic testing prohibited in relation to insurance, mortgages, pension Outsourcing DP operations - obligations still apply (e.g. payroll, call-centres) – on data processors on their behalf Security should be appropriate to potential harm and nature of data - Encryption – particularly important in case of financial and personal records and for vulnerable groups – e.g. BordGais, HSE, UK s/w Have regard to cost and technology available

54. Data Protection – be aware 3rd party opinions only exempt if given in confidence or understanding of References not exempt Interview notes may be accessible Monitoring employees: YES, depending on policy, conditions of employment e.g. acceptable email policy, social media and internet usage

55. Data Protection - high privacy thresholds Consent is required for police / other vetting Automated decisions – e.g. creditworthiness must have human input Internet usage – ongoing monitoring is allowed should be proportionate, not unduly intrusive, on reasonable suspicion Monitoring without CONSENT can be legitimate Call–recording without permission not allowed

56. Data protection - some trends Social networking, web 2.0 applications Increasing conflict and tensions, privacy issues, phising , hacking, disclosure, open model GPS / GIS Google street view, Microsoft VE - Issues of surveillance, private property, photographic data, image retention, trouble in Germany and Greece Patriot Act & Libraries strong opposition from librarians Political awareness Increasingly topical, weekly high profile breaches Pirate Party in Sweden

57. Data protection – some trends Ethical issues Detailed trail of personal information across public and private systems – how to balance ‘needs’ of the state with our own ethical rights – TMI, WTMI Data sharing 2008 data sharing deal with US – each country access to others fingerprint and DNA profiles + further sensitive data if necessary Electronic communications – principle of DP apply in relation to cookies, caller ID, spam, cold call opt-outs Biometrics – increasingly mainstream, compliant according to industry, DPC, unions disagree – argue for justification required prior to implementation – national gallery, schools etc.

59. ‘BarackBerry’ “They’re going to have to pry it out of my hands.” First Blackberry president Connected Emails and electronic communication subject to Presidential Acts – stored and saved Mobile phone data accessed by Verizon employees

60. Is this important to libraries

62. Is this important to libraries Libraries accumulate huge data banks from library systems and services – how this is potentially utilized is often outside of our control, particularly where library is used as an intermediary to access externally provided content Advent of participatory web – huge amounts of PII willingly displayed but do people understand (or care) about implications. Do libraries? Libraries traditionally have a culture of privacy, control, this is shifting … do we have a role in this???

63. Sources / references DPC presentation to IoT network 11/03/2009 www.dataprotection.ie http://www.ico.gov.uk/ Information Commissioners Office - UK that personal privacy is a right, take steps to protect it – winner of DP YouTube competition 2009 Case studies 2008 DP channel

64. Terry O’Brien,Information Compliance officerWaterford Institute of Technology Thank you tpobrien@wit.ie www.wit.ie