The public sector and compliance with GDPR
The Information Commissioner’s Office has announced a review of its enforcement approach when it comes to the public sector’s compliance with GDPR. Ibrahim Hasan sets out the background to the announcement.
In June 2022, the Information Commissioner’s Office (ICO) revised its approach to enforcement of the UK GDPR against public sector organisations. The two-year trial was announced in an open letter from the Information Commissioner, John Edwards, to public authorities in which he indicated that greater use would be made of the ICO’s wider powers, including warnings, reprimands and enforcement notices, with fines only issued in the most serious cases. Mr Edwards said:
“I am not convinced large fines on their own are as effective a deterrent within the public sector. They do not impact shareholders or individual directors in the same way as they do in the private sector but come directly from the budget for the provision of services. The impact of a public sector fine is also often visited upon the victims of the breach, in the form of reduced budgets for vital services, not the perpetrators. In effect, people affected by a breach get punished twice.”
This new approach has seen the Commissioner over the last two years issue more reprimands than fines. One example of this approach was the issuing of reprimand to the Department for Education (DfE) following its misuse of the personal data of up to 28 million children. The ICO said at the time that, had the new trial approach not been in place, the DfE would have been issued with a fine of over £10 million. Some would say that the DFE got off very lightly and, given their past record, perhaps more stringent sanctions should have been imposed. Two years ago, the ICO criticised the DfE for secretly sharing children’s personal data with the Home Office, triggering fears it could be used for immigration enforcement as part of the government’s hostile environment policy.
More recently the ICO was criticised for only issuing a reprimand to the Electoral Commission following the discovery that unspecified “hostile actors” had managed to gain access to copies of the electoral registers, from August 2021. Hackers also broke into its emails and control systems. The Commission estimated the register for each year contained the details of around 40 million people. The ICO reprimand revealed that the Commission did not take basic security steps to ensure the protection of personal data.
On 26th June 2024, the ICO announced that it will now review the two-year trial before making a decision on the public sector approach in the autumn. It will be interesting to see whether the ICO views the approach as a success and if it will be continued or even extended to the private sector.
Ibrahim Hasan is a solicitor and director of Act Now Training.
