The Information Commissioner's Office (ICO) published new
guidance yesterday that explains its view of what counts as
personal data under the Data Protection Act (DPA). Information that
is not personal data today may become personal data as technology
advances, it says.
A landmark ruling in 2003 challenged long-held
assumptions about what constituted personal data. Michael Durant's
case against the Financial Services Authority resulted in the
courts defining personal data very narrowly, so that data became
personal only in certain circumstances.
While only a court can rule on what the definition in the DPA
really means, guidance from the ICO is influential. The ICO has now
replaced its initial guidance on the implications of the Durant
judgment.
“We have been aware for some time of the need to replace our
guidance on the implications of the Durant judgment,” said an ICO
statement. “Inevitably that guidance reflected the fact that the
Court of Appeal was widely understood to have adopted a rather
narrower interpretation of 'personal data' and 'relevant filing
system' than most practitioners and experts had followed
previously. We recognised the need to produce guidance with a
greater emphasis on what is covered than what is not.”
The DPA defines personal data as “data which relate to a living
individual who can be identified (a) from those data, or (b) from
those data and other information which is in the possession of, or
is likely to come into the possession of, the data controller, and
includes any expression of opinion about the individual and any
indication of the intentions of the data controller or any other
person in respect of the individual”.
It is the interpretation of that definition that is the subject
of the ICO guidance. Knowing what is and what is not personal data
is vital because the DPA's rules apply only to the processing of
personal data.
The says in its new guidance that many kinds of information can
count as personal data, even in situations in which people may not
consider it to be so. It said, for example, that information could
count as personal data even if it does not include a person's
name.
“There will be circumstances where the data you hold enables you
to identify an individual whose name you do not know and you may
never intend to discover,” said the guidance. “Similarly, a
combination of data about gender, age, and grade or salary may well
enable you to identify a particular employee even without a name or
job title.”
The ICO said that it was important to bear in mind that a person
trying to identify another person might work quite hard to identify
that person. Definitions of personal data, then, must be allowed to
be quite wide in some cases, it said.
“When considering identifiability it should be assumed that you
are not looking just at the means reasonably likely to be used by
the ordinary man in the street, but also the means that are likely
to be used by a determined person with a particular reason to want
to identify individuals,” the ICO said. “Examples would include
investigative journalists, estranged partners, stalkers, or
industrial spies.”
The Office also said that a decision must be revised on
occasion, and it must not be assumed that any decision on personal
data is final. “Means of identifying individuals that are feasible
and cost-effective, and are therefore likely to be used, will
change over time. If you decide that the data you hold does not
allow the identification of individuals, you should review that
decision regularly in light of new technology or security
developments or changes to the public availability of certain
records,” said the ICO.
The situation is complicated further by the fact that some
information can count as personal data in one person's hands, but
not in another's. The guidance gives the example of two
near-identical photographs of a street party, one taken by a
policeman, the other by a journalist.
“The data in the electronic image taken by the journalist is
unlikely to contain personal data about individuals in the crowd as
it is not being processed to learn anything about a identifiable
individual,” it said. “However, the photo taken by the police
officer may well contain personal data about individuals as the
photo is taken for the purpose of recording the actions of
individuals who the police would seek to identify, if there is any
trouble, so they can take action against them.”
It also said that parts of documents can count as personal data
without the whole document counting as such.
In the case involving Michael Durant he sought information held
on him by the Financial Services Authority. The Court of Appeal
ruled that just because a document contained his name it was not
necessarily defined as personal data. This changed the perception
of how wide a definition of personal data could be.
A more recent case turned on the issue of personal data. A
researcher at the Scottish Parliament requested figures about
childhood leukaemia in a defined area and was turned down because
the information was seen as personal data. The House of Lords has
been asked to clarify whether or not the information, which will
not name any children, can count as personal data.
The ICO says that it will issue guidance on the meaning of
“relevant filing system” – another key part of the Durant case – in
the near future.
See:
The guidance (22-page / 100KB PDF)
This story and more reference material on OutLaw News
