An inherent aspect of many of the data sharing proposals, and drivers behind
them is the idea that the widespread use of duplicated personal data occurs
within the governmental organisational framework.  If it does, that
indicates widespread duplication of organisational effort, a waste of
resources and some failure within DP and the organisation in applying the
first and second principles effectively at the point of organisational data
collection.  Many of the stories circulated about constantly filling in the
same form with the same information largely relate to issues within the same
departmental structures about the same matter, in order to properly link the
material when it reaches its point of use, and are issues for those
departments.  Perhaps some departments should go, but that is a decision at
the corporate governance level, data flows merely sometimes indicate a
possibility and should not be the only driving force to such decisions, as
they are to coldly logical.

The concept which seems at the moment to be mainly adopted as a means of
apparently improving this situation by using technology is to 'share the
data collected' and pool the databases, so everyone can access what they
think they might need, or look to for improvements in service by their area
with. (refer back to the above re duplication.)  The difficulties with this
concept are immediately apparent when DP and individual rights/autonomy are
considered, with the purpose, together with principle one and two having
direct effect. Security, (access levels) use for purpose, and principle two
still hold sway, so the difficulties remain, they have not been resolved.
Instead of looking for other conceptual frameworks which might fit, the 'we
will overcome' syndrome takes hold, and gradually moves up the ladder.
Another DP battle over security, access levels, and use for purpose looms it
would seem.  I wonder whose rights will be infringed?  Perhaps government
ought to move to a data usage model similar to the financial sector,
transparently upholding peoples rights in that way? ;-\

In my view the main common DP issues emanating from data sharing are not
resolved by the DCAs', or your suggestions;  All that happens is rights the
data subjects currently have are to some extent disguised or subjugated;
Yet other conceptual approaches do not appear to be muted or considered.

E.g. Use the technology to allow individuals to control the input of the
data, sending that data to the people they see as requiring it, where it is
automatically updated within the relevant database. Similar to a mail base
solution, where the individual is provided with all the choices necessary
for  all the legal requirements to be met, and the organisations 'ideal'
need.  All the necessary information and options about who receives what and
for what purpose could then be available to the data subject.  I accept
issues of identity and security exist in that approach, but those issues
also exist when people only very infrequently call in at the office.  I am
also aware identity theft can be a very real and difficult problem, which in
my opinion, is only  exacerbated in impact for the individual by the
existence of identity cards.  

The important thing in an answer of that type is that the control of
decisions regarding the personal data are moved from the organisation to the
individual, which is where they should be.  Trust then to some extent
becomes an acceptable variable to the system, as a person who does not trust
could still use the system in a way which reflects their level of trust.
Provided you can get them to accept that particular type of system.


Is it feasible to uphold the data subjects DP principles by that type of
answer?  Is it a technological one which gains administrative benefits?  

Yes that particular technological answer, as well as many other
possibilities would be complex, but no more technically complex that the
'data sharing' answers; and it would at least leave the choices with the
individual.  I suppose the blame for administrative failures would then
potentially be moved to the individual customer/client, which is an aspect
that would need to be carefully addressed, but hey, what's new.

A new conceptual approach is needed, not merely a recycling of the old one
in a different guise, merely to come up against the same stumbling blocks,
resulting in constant requests for them to be removed by legislation.


Ian W



> -----Original Message-----
> From: This list is for those interested in Data Protection 
> issues [mailto:[log in to unmask]] On Behalf Of 
> Pounder Chris
> Sent: 27 November 2003 23:18
> To: [log in to unmask]
> Subject: My take on D.C.A. Legal Guidance on Data Sharing
> 
> 
> The following is my take on the data sharing paper just 
> released by the DCA - so any disagreement please go ahead
> 
> In essence, the Government want data sharing and has worked 
> out that the PIU's original "consent" route is a blind alley 
> (we have always said at Masons that consent cannot make an 
> unlawful act, lawful). Consequently it is looking at 
> statutory gateways to facilitate data sharing (White Paper 
> and draft Bill promised next year). Of course, the dilemma is 
> that if there is a statutory gateway which permits data 
> sharing, you can waive the proverbial two fingers at the Data 
> Subject. This is of course, not the message that the DCA want to give.
> 
> The result is that the DCA refer to privacy safeguards in 
> terms of making the systems secure and having accurate 
> personal data which the data subject can exercise rights 
> access. There is little prominence to the idea that data 
> subjects might object to the data sharing in the first place.
> 
> My solution to permit data sharing is to focus on the right 
> to object. I think you could argue that instead of the PIU's  
> original consent approach, a statutory gateway which 
> facilitated data sharing balanced with application of the 
> First Principle (i.e. data subjects have prior knowledge 
> about data sharing) PLUS an easier to exercise right to 
> object to data sharing (i.e. dropping the "substantial damage 
> or substantial distress" requirement for the exercise of the 
> right) could be the solution which provides the statutory 
> gateway for data sharing AND an appropriate level of 
> protection for data subjects. Data Subjects after all could 
> say "NO". Such an approach would engender trust as data 
> subjects who trust the data sharing will not exercise this right.
> 
> There are two conclusions which can be drawn from the fact 
> that the DCA has not identified this "right to object" route:
>            (a) the DCA has missed the right to object option 
> in its analysis, or 
>            (b) it has seen the right to object option and has 
> omitted it because it thinks that too many data subjects would object!
> 
> It is not for me to guess which of the above applies.
> 
> I also think that any data sharing arrangements should be 
> taken out of the hands of government as it has a vested 
> interest in the ability to share - I think here, Lindop's 
> suggestion that an independent Data Protection Authority 
> should the balance is the correct one which has a chance of 
> creating the necessary "trust factor". So let the OIC approve 
> the framework which permits data sharing.
> 
> My own view is that the ID card and data sharing are two 
> sides of the same coin - it is noteworthy that the Government 
> continues to treat them as separate initiatives.
> 
> Chris.
> 
> KEY QUOTES FROM THE DCA PAPER
> 
> "In particular, we believe that the concept of a general 
> power to share data with consent is flawed and we will not be 
> pursuing the idea further. On current thinking, legislation 
> will provide a general power to set up data sharing gateways 
> via secondary legislation. We are also considering what extra 
> safeguards may be appropriate if such legislation is to form 
> a package that properly balances the needs of more efficient 
> and effective administration and delivery of public services 
> with individuals' legitimate expectations of respect for 
> their privacy and the need to maintain their trust."
> 
> "The Home Office has carried out a consultation on 
> Entitlement Cards and Identity Fraud, which ended in January 
> 2003, and a decision on how to progress is expected shortly. 
> Clearly, the introduction of such a secure system to 
> establish identity would have the potential for a major 
> impact on data sharing."
> 
> "The introduction of electronic data record management 
> systems (partly in order to help with preparation for the 
> full implementation of the Freedom of Information Act in 
> 2005) is giving public sector bodies the opportunity to build 
> on the comprehensive internal security procedures that 
> already exist - and which are also being reviewed in the move 
> to ISO17799/BS7799 compliance." (CP Comment:2005 is mentioned)
> 
> "Our analysis suggests that one of the major inhibitors to 
> data sharing is a misunderstanding of the basic legal 
> position on administrative vires, not any particular problems 
> caused by the Data Protection Act itself (the view, 
> mistakenly, of many practitioners in the field). If a public 
> body lacks the vires to carry out a function or deliver a 
> service or policy (to which data sharing is necessary or 
> reasonably incidental), then neither consent nor a specific 
> information gateway on its own can solve the problem."
> 
> "In terms of further enabling legislation, our judgement is 
> that there is little purpose in progressing the idea of a 
> general law to allow data sharing with consent. Consent is 
> often already required to address confidentiality issues, 
> where these arise, so a general consent provision is 
> unnecessary here. Consent, on its own, is frequently 
> unnecessary in ensuring Data Protection Act compliance (it is 
> just one of the Act's several Schedule 2/3 conditions, any of 
> which, if met, provide a legitimate condition for the 
> processing of data). Our view is that the starting point in 
> considering the lawfulness of data sharing needs to be the 
> vires for the substantive activity to be undertaken, not the 
> sharing of data per se: in general, data sharing should not 
> be seen as an activity in its own right. If the vires exists 
> for the activity to which data sharing is a necessary 
> adjunct, then it is quite possible to imply the vires to 
> share data, even in the absence of an explicit gateway. 
> Problems arise in relation to data sharing if there is a lack 
> of clear vires for the substantive activity and, if this is 
> the case, consent does not resolve the problem (one cannot 
> consent to an ultra vires action). Even the presence of clear 
> vires, however, does not mean that public bodies have a 
> completely free hand to proceed with data
> sharing: issues of confidentiality, human rights and the 
> requirements of the Data Protection Act must also be addressed". 
> 
> "We do, however, see the potential in a general power to 
> allow data sharing gateways to be set up via secondary 
> legislation (it would, of course, be open to any regulations 
> made under such a power to provide whether or not consent 
> should form part of the basis of data sharing, dependent on 
> the particular circumstances or service being facilitated by 
> the sharing of personal data)."
> 
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> ______________________________________________________________
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