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 http://www.bbc.co.uk/news/uk-scotland-scotland-politics-17198577 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 http://www.thisisplymouth.co.uk/Man-s-pound-18k-payout-ex-girlfriend-viewed/story-15061425-detail/story.html,
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 http://www.guardian.co.uk/society/2010/oct/26/baby-p-death-should-have-been-prevented 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 the Scottish Government is still in luck.
There is a routine way of disclosing information about Megrahi’s appeal without
breaching the Data Protection Act. The issue breaks down like this: to process
the records (in this case, to publish them), the Scottish Government needs to
ensure that the processing of his records is fair, lawful and meets two
conditions, one for Schedule 2 and one from Schedule 3. And all they need is
Megrahi’s consent. This would make the disclosure fair, lawful and would meet
the two conditions. Megrahi has already said that as long as all the documents
relevant to the case are disclosed, he will consent. There’s a lot more about
that here: http://www.megrahiyouaremyjury.net/?p=159
Rather than a
time-wasting trip to Ken Clarke that everyone in Holyrood must know is a dead
end, why not just put everything in front of the court of public opinion?
So I see two possibilities: either the Scottish Government doesn’t employ
people who understand the Data Protection Act (I’ve met some of them, and they
absolutely do), or there are things that Megrahi wants in the public domain
that the Scottish Government doesn’t. I don’t know if Megrahi is guilty or
innocent, and I don’t care. The families of the 270 people who died in the
Lockerbie outrage are absolutely blameless, and they deserve total transparency
regardless, so what possible objection could there be?
The author John Ashton has already suggested that
the Scottish Government might be looking for reasons to delay publication (http://www.megrahiyouaremyjury.net/?p=324) and waving the DP card is not a sign
of good faith in my experience. Given that I subscribe to the Bill Hicks Theory
of Government, I’m not the best person to judge a politician’s motives. But
motives are irrelevant to the main point here: Data Protection does not prevent
the disclosure of the records, and the Scottish Government should not say that
it does. Such statements are a red rag to every idiot who wants to ignore DP
because they don’t have the patience to follow its sensible principles. All the
Scottish Government needs is Megrahi’s consent, and he has explained what they
need to do to get it. All he asks for is further transparency, which is surely
what we should all want. Too many people died to mess this one around any
longer.
And one final
thought: if MacAskill really does want transparency, all he has to do is wait.
The biggest exception to Data Protection is mortality – when Megrahi dies, the
DP objections go with him.
[What follows is the text of an e-mail message received today from lockerbietruth.com's Peter Biddulph.]
ReplyDeleteSeeing the latest piece on your blog, I find this kind of thing sad and disconcerting. Just where is our society going when failures of public duty can be concealed behind the specious claim of "protect my personal data and human rights"?
The SCCRC report reveals the context within which certain parties view the SCCRC’s report. The reasons for its attempted concealment are clear.
In a briefing note written 15th May 2007 DI Dalgleish advises his colleagues of “expectation that the SCCRC’s statement of reasons ... is likely to question the integrity of Anthony Gauci’s evidence and also reveal that he and his brother have received substantial payments from the American authorities... While Mr Scicluna recognises that the issue of payments by the American Rewards for Justice programme was engineered only after the trial and subsequent appeal process had concluded, he agrees there is scope for distorted or malicious reporting of the facts and a real danger that if SCCRC’s statement of reasons is leaked to the media, Anthony Gauci could be portrayed as having given flawed evidence for financial reward…”
We must recall that flawed evidence for financial reward is exactly what Gauci did give.
Dalgliesh omits the fact that an offer of “unlimited money with $10,000 available immediately” was made available to Gauci in September 1989, just two weeks after his first of many interviews by Scottish police.
My understanding of Data Protection legislation is that it protects an individual from unjustified exposure of his or her personal identifiers, or exposure outside the terms and conditions under which that data has been provided. In the case of the SCCRC’s findings, I consider that publication would be entirely justified on the grounds of public interest and natural justice.
I hope you would agree that the purpose of Data Protection legislation has never been, nor should it ever be, to protect an individual from exposure of failure of public duty under the law.
That last sentence of the article is pretty strange. It's not Megrahi who might want to prevent stuff being released under the DPA.
ReplyDelete