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ICO evidence raises Freedoms Bill data worries

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Offences related to homosexuality

The Commissioner is also concerned about the “disregarding of certain convictions for buggery” where criminal offences relating to homosexuality are to be “deleted” (don’t cheer – read what follows!).

The reason for the absence of any cheering is that the ICO complains about the Alice in Wonderland use of the word “delete”, where this word is used to mean the precise opposite. In this case a definition of “delete” which actually means “retain”.

The Commission notes that “delete” is defined in the Bill as “recording the fact the conviction or caution is disregarded and the effect of it being such a conviction or caution”. Note that the chief police officer thus does not “delete” these sensitive personal data, but rather he retains the details of all these convictions and cautions but “disregards” them as if they did not exist.

So when the Secretary of State claims that “these personal data should be deleted”, what in practice happens is that these data are retained on police records. This is classic Home Office drafting – worthy of a literary prize in my view.

The Commissioner then adds that despite the bizarre definition of deletion, “all of these convictions or cautions should be disregarded automatically rather than relying on the person who was convicted, or cautioned, to make an application to the Secretary of State”.

To do otherwise would mean “Police Forces should not be holding irrelevant or excessive personal data about individuals” and “If information relating to these offences is no longer relevant it should not be retained”. In other words, the current provisions would legitimise what in normal terms would be a breach of two Data Protection Principles (Third and Fifth).

The change to the ICO’s data protection function

Finally the Commissioner is concerned the term of his appointment is reduced to one of five years whilst “all the previous post-holders have had their initial five year terms extended to varying degrees and this has helped ensure continuity in the work of the Information Commissioner’s Office”.

I agree with this position. A five year term for a Commissioner means that by the time a new Commissioner gets into the job properly and begins to develop some long-term approach to information rights regulation, his term of office would be half way through and he would be a lame duck.

I am very confident that if certain public authorities (no names but one of them begins with “H”) do not like what one Commissioner was doing, they could easily delay matters so that the issue would become the responsibility of a new Commissioner, possibly one “more understanding”. That is why the Commissioner recommends the Canadian approach where “the federal commissioner is appointed for a seven year term”.

Although New Labour’s surveillance state is being reduced, all is not what it seems. In my view, the Commissioner’s analysis demonstrates the fundamental contradiction that arises when the Government Department responsible for the expansion of that surveillance state is tasked with designing safeguards to produce a restricted version.

In summary, the Home Office prime function is to give the law enforcement agencies what they need; it’s function is not to protect the privacy of individuals. And that is why this Bill shows all the defects the Commissioner has identified.

This story originally appeared at HAWKTALK, the blog of Amberhawk Training Ltd.

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