One of the perennial Data Protection annoyances is the way that people cover ignorance, laziness or downright dishonesty by hiding behind the Data Protection Act as the excuse not to do something (it’s almost always the justification for not providing personal data to someone else in entirely justifiable circumstances). (...)
However, the Scottish Government’s current claim that the DPA prevents disclosure of information about Abdelbaset Mohmed Ali al-Megrahi’s conviction and appeal are wrong-headed, and risk damaging perceptions of the Act at a time when phone-hacking and online security have finally broken though and made more people concerned about how their data is used. The most recent stage in this farrago sees Kenny MacAskill asking Kenneth Clarke to allow Scotland an exception from the DPA so that they can finally put Megrahi’s records out there. They claim that the DPA hurdle is the only thing stopping them from giving the information out. (...)
Firstly, Clarke – or any other member of the coalition – cannot give the Scottish Government an exception from the DPA, because no such power exists. They would have to amend the whole Act. A cynic might suggest that they know this, and hope to implicate the UK government in whatever problem that Megrahi’s non-death and the alleged miscarriage of justice presents. There are those who accuse the Scottish Government of using the release as a bargaining chip to get Megrahi’s appeal dropped. The Scottish Government and Kenny MacAskilll refute this entirely. But asking for an exception is hogwash – either the DPA offers a solution on its own terms or it doesn’t. If MacAskill wanted a pragmatic solution, he could ask the Information Commissioner Chris Graham if he would be willing to exercise his discretion and not take any action should there be some complaint about the release. Admittedly, the ICO is not the most bold or imaginative regulator, but while Clarke cannot wish the DPA away, Graham can choose not to take forceful and painful action when a breach takes place, if he has a justification for doing so. As FOI regulator, he would hardly struggle to identify a public interest in transparency that justifies stepping back.
If the Scottish Government publishes, Megrahi could of course sue under Section 13 of the Act for the damage caused to him by the disclosure. A gentleman in the South West did just that recently despite the fact – for good public interest reasons – they are normally kept secret. And besides, the man is dying. He has other things on his mind., but it’s odd for Salmond and his colleagues to back away from a fight, especially as they would surely consider any damages to be a small price to pay for transparency. There is, in any case, a precedent for a politician ignoring the normal rules of privacy and confidentiality in favour of expediency, when the Coalition published the Baby P Serious Case Review