Practitioner Certificate in FOISA: Another Successful Year

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Act Now Training is pleased to report that it has completed another successful year of delivering the Practitioner Certificate in the Freedom of Information (Scotland) Act 2002. Now in its fourth year the course is the only certificated FOI course specifically designed for Scottish delegates.

Two courses were delivered in 2016 with 22 very strong candidates from a variety of backgrounds including the local government, education, health, government and regulatory sectors. All the delegates passed the course. Of these 3 achieved a distinction and 14 achieved a merit. The delegate feedback has been extremely positive:

“I really enjoyed the course and thought that Tim Turner really brought the subject to life.  He was an excellent tutor and made this subject both interesting and informative with amusing anecdotes throughout.  I would certainly go on another course being delivered by Tim Turner and I would recommend him to my peers.”  LC, Glasgow Kelvin College

“Tim was an excellent tutor. His knowledge of the subject was vast and impressive. I learned a lot.” JM, Fife Council

“This is the most useful course I have participated in for a long time.” JT, Crofting Commission

Read a previous successful candidate’s observations here.

The course is endorsed by the Centre for FOI based at Dundee University. The Chair of the independent Exam Board , Professor Kevin Dunion (formerly the Scottish Information Commissioner and now the Executive Director of the Centre for FOI).

The most recent course was delivered by Frank Rankin who has many years of experience working in the Scottish public sector. Frank said:

 “The Act Now certificate brings together a fantastic cross section of FOISA practitioners from a range of organisations, large and small, across all parts of the public sector. I love sharing ideas and experience with these colleagues, and learning from their campaign stories as well.”

The Act Now Practitioner Certificate in FOISA is now the qualification of choice for FOISA professionals in Scotland. The next course is in February 2017 runs over five weeks and is already filling up. For those who are time poor we also have a one-week intensive option. More details here: http://www.actnow.org.uk/content/113

Following a consultation last year, 1st September 2016 saw FOISA being extended to cover more organisations. Act Now has a full programme of FOISA workshops in Scotland.

Have you stopped speeding your car? Insurance companies and data protection.

 

clip_image002I went on a Speed Awareness Course recently. I was not alone as 1,207,570 people did in 2015 and the numbers for 2016 will certainly be higher. There was a wonderful cross section of the population there and two trainers there as well. It was a good course with plenty of information about reading the road, hazards, speed limits quizzes and video.

My first reaction to the Notice of Intended Prosecution was that I’d start accumulating points and points (in car insurance terms) means price hikes so to be offered a course in lieu of points was a fantastic result. The cost of the course (£90) was irrelevant in fact I’d have paid much more to avoid the points. The cost of the Fixed penalty (£100) was also not an issue even though I didn’t pay it. It was the points on my licence that was at the forefront of my mind.

Not everyone is offered a course however

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This says in plain English that you may be caught at 35mph but will avoid a prosecution but between 36mph & 42mph you will be offered a course. So just over the limit is OK; medium level speeding means a course but over the top speeding means a prosecution or fixed penalty. That’s why you see lines of executive cars chugging down the motorway with cruise control set at 78mph. This chart effectively raises all speed limits by 10% to 20% and could even be said to be an inducement to ignore posted speed limits but work with the generous grey area speeds the police allow.

While researching this article I found that some countries base the size of a fine for speeding on the income of the speeder. Finland fined a highly paid (£4.7m a year) businessman £50,000. See more detail here http://www.bbc.co.uk/news/blogs-news-from-elsewhere-31709454

And also there are stories of people asking other people to “take’ points in return for money. An interesting concept worth investigating…

http://www.dailymail.co.uk/femail/article-1390586/Would-ask-loved-speeding-points-I-did-I-live-consequences.html

The big question that came up halfway through the course was

“Should I tell my insurers that I’ve been on the course?”

The trainer was clear.

“Your details will be held on a database so other police forces who may catch you speeding will not offer you a course. This will last for 3 years. The Police will not pass this information to anyone else”

Searching the web will find plenty of discussion on this subject. Here’s what the AA (which provides Speed Awareness Courses) says

“Your personal details are protected by the Data Protection Act 1998. If you elect to participate, you agree to your details being checked by us against the ACPO national database to establish if you have completed a similar course within the last 3 years of this offence.

If you complete a “National” course, your details relating to the course will remain on file with the ACPO national database for road safety research purposes for a further 7 years from the date of the offence, after which any personal reference to you will be erased. These details will not be released to any other party apart from other UK Police Forces if they are considering making an offer of a course in the future.”

ACPO has disappeared and NPCC (National Police Chiefs Council) has sprung up but it’s logical to assume that the data is still there but the name of the Data Controller has changed.

Ndors is the national body that oversees the courses. They say

“Once a person has been on the course then no further action will be taken, there is no fine to pay and they will not have any points put onto their licence.”

A generally held point of view is that there is no conviction so no requirement to inform insurance companies. However some insurance companies (largely the Admiral group) have started to ask potential customers if they have been on a Speed Awareness Course as in their view that person although not convicted have shown an inclination to speed and this would affect any insurance premium.

The web has plenty of forums where this issue is discussed and opinions of insurance companies range from infuriated to incensed. A typical comment is

“Insurance companies will use any excuse to weasel out of paying a claim because they are cheating bastards.”

But who is right in this matter? Is there a data protection angle? We think so.

If anyone approached the police database and asked to see if a person was on that database because they had been on a Speed Awareness Course I would expect the answer to be no you’re not getting it – it’s confidential. Even using the Freedom of Information Act would elicit this response and it seems the right response. There are other exemptions that might apply

However the Insurance companies are not going down that route as they know they don’t have a right of access. They are asking people to voluntarily inform them that they have been on such a course so that they can increase their insurance premium. They point to a general catch-all in their small print that customers must inform them of anything that might affect their insurance. Can insurance companies ask this? Can they ask a question that they know the person doesn’t want to answer because it invades their privacy?

  • Do you have cancer?
  • Do you smoke?
  • Do you walk 5,000 steps a day
  • Have you dropped litter and been fined?
  • Have you separated from your partner?

They say that if you withhold such information it may invalidate the policy but they can’t collect it lawfully unless they obtain it from the customer as they have no lawful means of obtaining it. If you have a massive claim and they see a £25,000 payout in prospect they might just use a private investigator to look into the claim and see if they can find some fault with it. He may stray outside the law and find evidence of your course…

But if you voluntarily answer the question that they may not be able to ask you haven’t you consented to giving the answer?

Consent hits the first button in Schedule 2 so the Insurance companies are processing fairly and lawfully. Or are they? If you are asked to consent to a disclosure that will have an adverse effect on your life is that a true consent or an enforced consent?

Consent isn’t defined in the Data Protection Act so it has its ordinary meaning. A quick web search says consent is “permission for something to happen or agreement to do something”. Do you think customers are agreeing that Admiral can hold their Course attendance and increase premiums as a result? Or are they reluctantly disclosing for fear of losing their insurance?

Other parts of Schedule 2 don’t seem to apply except for old faithful paragraph 6 – the legitimate interests pursued by the data controller or by the third party or parties to whom the data are disclosed, except where the processing is unwarranted in any particular case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject. Whoever inserted the tiny word prejudice here many years ago may have done the nation an immense service. Of course it will prejudice the rights and freedoms of someone who hasn’t been convicted of a speeding offence yet is in danger of being penalised for doing so.

And if you’re thinking of diving into schedule 3 think again. It’s not sensitive data. It’s a training course not a conviction.

So on balance it’s probably unlawful for Insurance companies to ask the question as it’s not a freely given consent; they have no access to the police database of course attendees and if they do set a data hound on the case he probably can’t access the information lawfully either.

But there’s also a left field solution. All seasoned FOI professionals know that there’s a way of answering a request without actually answering it. Yes you’re remembering it now aren’t you – it’s the Neither Confirm nor Deny option.

Section 1(1)(a) of the FOI Act allows this where confirming would in itself disclose sensitive or potentially damaging information that falls under an exemption.

So when the Insurance company asks the question you Neither Confirm nor Deny that you have been on a course. They can’t make any further decisions on your premium. They can’t say “well it’s obvious that he’s done a course” as they have no evidence of it.

Good luck with that one.

Finally if you do find yourself being asked the question and any of the solutions here are a bit too drastic you can always swap insurers to one that doesn’t ask the question. But as you do remember that all the individuals who were coerced into unfairly disclosing Speed Awareness courses to Admiral may find that Admiral shares the data anyway. Big Brother (or Big Insurer) is not far away.

 In the vanguard of forced consent is Admiral. Not content with asking up about speed awareness courses you’ve been on they now want to trawl through your facebook posts to make decisions on what type of person you are so they can adjust premiums of party animals. See http://www.bbc.co.uk/news/business-37847647 Fortunately Facebook has declined to give Admiral access.  But questions have to be asked as to how far Admiral or other insurers will go to into your personal affairs to work out a suitable premium especially for you. A word trending in DP circles as GDPR approaches is Profiling. Maybe it’s time you found out what it will mean for your company in the future.

Image credit http://jimllpaintit.tumblr.com

Act Now has a full programme of Data Protection workshops including full day GDPR workshopsWe also run the Act Now Data Protection Practitioner Certificate which is ideal for those preparing for the role of Data Protection Officer under GDPR.

GDPR is here to stay but what happens next?

It’s official. The General Data Protection Regulation (GDPR) is here to stay; well beyond April 2019 when the UK is likely to finally leave the European Union.

On 24th October 2016, the Secretary of State Karen Bradley MP used her appearance before the Culture, Media and Sports Select Committee to say:

“We will be members of the EU in 2018 and therefore it would be expected and quite normal for us to opt into the GDPR and then look later at how best we might be able to help British business with data protection while maintaining high levels of protection for members of the public.”

Writing on her blog the Information Commissioner (Elizabeth Denham) welcomed this announcement. However it is technically incorrect for her to say:

“The government has now confirmed that the UK will be implementing the General Data Protection Regulation (GDPR).”keep-calm-and-prepare-for-the-gdpr

As I have explained in a previous blog post, the Government has no choice but to implement GDPR as the UK will still be a member of the EU on 25th May 2018 when it comes into force.

This announcement does though put an end to months of uncertainty as Data Controllers waited to see what the Government would do after the UK leaves the EU. Although last month’s announcement of the Great Repeal Bill meant that yesterday’s announcement was not a big surprise.

GDPR will replace the Data Protection Act 1998 (DPA) and represents the biggest change to data protection law for 20 years. With some GDPR breaches carrying fines of up to 4% of global annual turnover or 20 million Euros, now is the time to start planning (if you have not already started!).

The ICO’s overview of GDPR is a good place to start. It has also published 12 steps to take towards compliance. We would emphasise:

  1. Raising awareness of GDPR at all levels within the organisation (See our GDPR poster).
  2. Reviewing compliance with the existing law as well as the six new DP Principles.
  3. Revising privacy polices in the light of the GDPR’s more prescriptive transparency requirements. The ICO’s new privacy notices code is a very useful document for this.
  4. Considering who is going to fulfill the mandatory role of Data Protection Officer. What skills do they have and what training will they need? Our Data Protection Practitioner Certificate, with an emphasis on the practical skills requited to implement GDPR, is an ideal qualification for those aspiring for such positions.
  5. Reviewing information security polices and procedures in the light of the GDPR’s security obligations particularly breach notification.

Look out also for amendments to Section 40 of the Freedom of Information Act 2000, Section 38 of the Freedom of Information (Scotland) Act 2002, Regulation 13 of the Environmental Information Regulations 2004 and Regulation 11 of the Environmental Information (Scotland) Regulations 2004. All contain exemptions from disclosure of personal data by reference to the DPA.

The ICO will be publishing a revised timeline setting out what areas of guidance it will be prioritising over the next six months. Elisabeth Denham ends her blog with these wise words:

“I acknowledge that there may still be questions about how the GDPR would work on the UK leaving the EU but this should not distract from the important task of compliance with GDPR by 2018.”

Act Now has a series of blog posts as well as a dedicated GDPR section on its website with detailed guidance on different aspects of the Regulation.

We are running a series of GDPR webinars and workshops and our team of experts is available to come to your organisation to deliver customised workshops as well as to carry out GDPR health checks and audits. 

GDPR Practitioner Certificate (GDPR.Cert) – A 4 day certificated course aimed at those undertaking the role of Data Protection Officer under GDPR whether in the public or the private sector.

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