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Information commissioner welcomes 'step change' in transparency

Christopher Graham, the information commissioner, heralds the coalition's open data white paper as "a step change" in commitment to transparency in government and public services.

Among the aims outlined in the paper are easier access to public data, more standardised formatting and embedding a 'presumption to publish' most data. In Graham's view, the document represents an extension of the progress made over a number of years with freedom of information.

"We don't see open data as a replacement for freedom of information," he explains. "You still need to have access to other information under freedom of information, email and reports and so on. There are two things together - data sets and the more traditional record - which lead to true openness. But on the whole, a big tick."

The Information Commissioner's Office (ICO) has been closely engaged with the Cabinet Office in its work on this, Graham says. And he is glad that the ICO's role is being recognised and some of the areas where it believes caution is required are being addressed.

They include the anonymisation of data where, Graham says, there is a lot of work still to be done. His office is currently consulting on a draft code of practice on anonymisation and it is tendering for a contract to set up a 'good practice network' for anonymisation, intended to develop expertise and spread good practice.

"It's important to get this right, because there's a view that anonymisation is a mirage, and that through two bits of information you can always work out who the individual is," Graham says.

"We think that concern is overdone, in the sense that where things have gone wrong, research shows that it's because a basic step hasn't been taken."

Graham also welcomes the Open Data Institute, currently being established in east London with a £10m grant and a remit to drive economic growth and promote the use of public data; and likewise the appointment of a privacy expert to the Cabinet Office's Transparency Board.

"Oh, I think that's a very welcome development," he says. "The Transparency Board has done some great work. But I certainly found when I attended meetings, when I mentioned privacy issues, I very much felt like a bit of a party pooper.

"They were all getting very exciting about all the possibilities of this, that and the other, and I would say what about the Data Protection Act (DPA) and it is definitely not a cool thing to say."

Asked if he would like to see greater transparency around major projects, including the publication of 'gateway' reviews, Graham responds that his office has ordered the disclosure of a number of gateway reviews on major IT and other projects, and cites identity cards as an example. Generally, though, he maintains that decisions on disclosure should be based on individual cases.

Given the growth in outsourcing, should openness and accountability follow the private sector contractors that deliver public services? "Just because the public pound is being spent by a commercial provider or someone from the third sector under the 'big society', shouldn't mean the citizen is denied information rights in the process," Graham maintains.

"It would be odd if we got all the benefits of alternative provision, but the price of that was that everything was less accountable. You might argue that those new structures need to be more accountable. I would say that they need to be at least as accountable as the public authorities they replace."

When it comes to arguments of 'commercial confidentiality' around public services contracts, the information commissioner acknowledges that this is one of the exemptions that can come into play under the Freedom of Information Act, but adds that it is always an issue of judgement.

"It would be bizarre if the regime was so open that the public couldn't get the benefit of competition because everyone knew what everyone else was doing," he says.

"So what I'm looking for is the benefits freedom of information can bring, to open up provision, so that public authorities are not captured by a single monopoly supplier who has been milking the system; and at the same time in encouraging greater competition that would be frustrated if all the negotiations and background research is automatically in the public domain."

Similarly, he believes that freedom of information should not exclude private communications to the extent that a "back channel" is created for emails and texts about difficult issues which politicians or officials do not wish to be in the public domain. He expects long-awaited guidance on this from the Cabinet Office to be issued soon.

In Graham's view, government must get the basics of data protection right before moving to ambitious projects such as 'mydata', or sharing electronic health records. He cites the NHS as having a particularly poor record on data protection, and points to the large fines the ICO has imposed on health service organisations because they have lost memory sticks, or their contractors have sold NHS hard drives on eBay.

"You can't have that going on one side, while on the other saying 'trust me, we're going to have pharma companies accessing lots of anonomised patient data in order to invent the next wonder drug', or 'we're going to get greater efficiency in the health service by sharing data between organisations or departments'."

Similarly, with cloud computing he says that government bodies must understand the terms and conditions that they are signing up to: "It's not going to be a defence in the face of citizens or the information commissioner if you say 'that happened in the cloud, it wasn't me'."

This autumn, he says, his office will publish two separate sets of guidance on cloud computing, one for organisations and one for the public. He will also be considering the recommendations of the Article 29 Working Party of European data protection authorities on the privacy implications of cloud computing.

Since 2010 the ICO has had the power to impose fines for data protection breaches, which last year totalled £688,000. While no one likes being hit with a massive fine, Graham believes that the real impact is on reputation: "I think that organisations up and down the land will say 'I don't want to go there', which is what the whole point it is."

"And it's not just the health service, it's also local government; a fair number of councils dealing with sensitive personal information – very often in the social services area – have been caught out doing really stupid things.

"I mean, that is the low tech end of the issue, but if you don't get the low tech end right, you can't do all this fancy stuff."

So does Graham think his office needs additional powers? He reveals that he has applied for the power of non-consensual audit, in an effort to ensure compliance with the DPA without having to go to court to get a warrant, or having a reason to believe that something is wrong.

He argues that the penalty for breaches of the DPA in relation to blagging is often woefully insufficient. "The going rate for a Section 55 blag in court is £130, but you can get £500 from a claims management company for passing on the name of someone who walked into the local NHS emergency centre with a broken arm."

Another issue, is that the ICO is being asked to do an increasing amount of work without additional resources, particularly in relation to the Communications Data Bill, where the information commissioner would have to ensure that data held by the communication service providers is held securely and deleted after 12 months.

"If I have got to do that I have got to hire a lot of inspectors, and I am not sure where the money is going to come from," he says. "I am absolutely running a tight ship and we are dealing with more and more with no increase in resources on the data protection side.

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