So, the Minister for Education is fighting a rear-guard action to justify the method of execution of the Primary Online Database. Get ready for the rakes.
Correctly, she is stressing the need for a means to track education outcomes as children move from primary to secondary education, where there is a drop-out rate which is rightly concerning. It’s been concerning since 2006 when Barnados highlighted the mystery of what was happening to the 1000 children a year who didn’t progress from primary to secondary education.
She has stated that the Data Protection Commissioner has been consulted and “and that office is satisfied with what we are doing“. The Data Protection Commissioner has commented that the Department has presented “a legitimate and proportionate purpose for requesting to be provided with the data it is seeking“. Now… that’s not the same thing as being “satisfied with what we are doing” as the Minister has said. It also depends very much on what purpose was communicated to the Office of the Data Protection Commissioner in 2013.
Even in an ideal world scope creep occurs, particularly when the objective for processing the data seems to be a bit confused. Is it for purely statistical purposes (which is implicit in the statements that the data would only be accessed by a small number of people in the statistics unit of the Department of Education), or is it for more day-to-day operational decision making purposes (which is implicit in comments made by the Minister that school funding could be at risk if data was not returned)? Those are two different categories of purpose.
But what about the DPC’s position?
The Data Protection Commissioner’s statement to the Irish Times actually limits its comment to the legitimacy and proportionality of the purpose that the Department may have for seeking to process this data. Ensuring children move from Primary to Secondary education and ensuring that the State has data available to help identify any trends in drop-out rates and ensure that limited resources are deployed as efficiently as possible to ensure equality of access to education (here’s a link to some more stuff from Barnardo’s on that) and support children in getting the best education outcomes possible.
Legitimacy and proportionality are linked to the purpose for which the data is being obtained. And the need to ensure that data is “Obtained fairly and processed for a specified and lawful purpose” it is just the first two of eight Data Protection principles. So what is the purpose the DPC was told about? Are there new purposes?
So, when the Minister comments on the retention of data about primary school children until they are 30 years old, and says that
“I did say I would examine it but it looks to me that up to the 30th birthday is probably appropriate and it satisfies the Data Commissioner as well which is obviously very important,”
it is really important to ask: What is the purpose for which this long a retention period is required?
It’s actually more than that: it’s essential that the Minister is able to say categorically what the purpose is for this retention and why a 25 to 26 year retention period for personal and sensitive personal data is required (“probably appropriate” is not the test… “retention for no longer than is necessary for the purpose for which the data is being processed” is the test under the Data Protection Acts. It is also important to assess whether the purpose and requirement can be met by less personally identifying data: would anonymised or pseudonymised data support the objective? If yes, then it ceases to be necessary to hold the raw data, so it is no longer “probably appropriate”).
So… what is the specific purpose for which a retention period of “until 30th birthday” is required? State it. Assess it. Compare against other alternative methods. And then make a clear decision based on the Privacy impact and the necessity and proportionality of the processing. “Probably appropriate” is not a form of words that fills me with confidence. “Assessed to be necessary and proportionate against other options, which were rejected because of X, Y, Z reasons” would be more illustrative and evidential of a proper Privacy Impact Assessment and Privacy by Design thinking at work.
For other purposes it might not be appropriate to allow access to the identifiable data even 90 seconds after it is recorded. Those purposes need to be identified and appropriate governance and controls defined and put in place to ensure only appropriate data is disclosed that is adequate, relevant, and not excessive to the purpose for which it is being processed. And that purpose needs to be consistent with and not incompatible with the purpose. The Data Protection Commissioner doesn’t appear to have actually commented on that. So the standard protocol of clear statutory basis and an appropriate system of Governance still needs to be considered and put in place for any sharing of data or subsequent use of data to be compliant with the Data Protection Acts (and, just in case we forget, Article 8 of the EU Charter of Fundamental Rights).
Disturbingly, the Minister seems to imply that it is irrelevant if parents provide their PPSN to the Department or not as they will be able to obtain that data from the Department of Social Protection. It is true that name, address, date of birth and mother’s maiden name can be used to validate a PPSN. However I would question the basis under which the passing of that data to obtain the PPSN would be valid, given that the Dept of Education’s registration with Client Identity Services in the DSP seems to presume the Department has the PPSN it needs.The rent has been paid up on the battlefield it appears, and there is no going back.
(Name, address, date of birth, and mother’s maiden name could form a composite key to identify a child uniquely on the database where no PPSN is available. In which case, what is the purpose for the PPSN?)
What does the Minister’s statement mean?
In my opinion, the Minster’s statement means that the Department are mis-understanding the role of the Data Protection Commissioner and what it means for the DPC to give an opinion on the appropriateness of processing. The DPC will determine if there is risk of non-compliance with a proposed purpose for processing and will give guidance and feedback based on the information that is provided to them.
If that information is incomplete, or doesn’t match the final implementation of a system, then the DPC can (and does) change their position. It’s also not the role of the DPC to correct the homework of a Government Department, and the new Commissioner Helen Dixon has made that exceptionally clear to Public sector representatives in at least two forums since November. Her role is to enforce the legislation and support the protection of fundamental data privacy rights of individuals and to be independent of Government (that’s a Treaty obligation by the way since 2009… and towards the end of his term Billy Hawkes the former Commissioner exercised that independence by, for example, prosecuting the Minister for Justice).
It also means that the Minister is at risk of having to dig herself out of an entrenched position. The road to heck is paved with good intentions. This scheme (and all the other education outcome tracking databases that the Department has) are all valid and valuable as part of a coherent information strategy for the design and implementation of education services and delivery of education outcomes in Ireland. But the design and execution of the systems of processing (not just the technology systems but the wider scheme of stakeholder engagement, controls, governance, and impact assessments) is leaving a lot to be desired.
It means, unfortunately, that rather than display their homework around Privacy Impact Assessment, Governance controls, and Privacy by Design, the Minister and her Department are reacting exactly as I described in yesterday’s blog post:
Data Protection Expert: I think this raises significant issues and may be illegal
Government Representative: It’s too late. I’ve already paid a months’ rent on the
PR agency project.
So far the report card reads:
- Intention: 10 /10
- Effort: 4 /10 for effort.
- Execution: 2 / 10 (and negative marking applies here).
“Trust us, we’re the Government” doesn’t work any more because the Government has failed spectacularly to build and engender trust on previous data gathering and data sharing initiatives. So, laudable as the goals are, there was already a mountain to climb to put this data gathering inside the “circle of trust”.
Having reviewed a range of documentation around the Primary Online Database (including the specifications for the drop down fields in the database).
- The project has mis-identified as “non-sensitive” data a range of questions which are capturing sensitive personal data about medical or psychological assessments.
- The system has a notes field which currently can be accessed by users of the system in the Department but it is proposed that that will be restricted to just schools but in reality that means that the data is still being stored on a system designed and controlled by the Department and which would be accessible by anyone with an administrator access to the underlying database.
- The communication of purpose for processing, and the explanation of the retention period, is bordering on the unintelligible to me. And I read and write those kind of things for a living. I teach this stuff to lawyers. The defence that “it’s based on the Department circular” is not a defence. The requirement under the Data Protection Acts is that data be fairly obtained for a specified purpose. That requires that the statement of purpose be comprehensible (I advise clients to apply adult literacy standards to their text and aim for a reading age of 12 to 15). If the circular is incomprehensible, write a ‘friendly version’ or get the Circular redone.
- The project has gone to the wrong source for the data. The schools do not have a lot of this data, and even then they have obtained it for a different specified purpose. Schools guessing at ethnicity or religion or other aspects of the data being gathered makes little sense and creates an admin burden for the schools. The 50% response rate in the pilot project should have been a warning that the execution method was not appropriate.
- The use of “local” versions of the questionnaire by schools (where schools have modified the Department’s form and sent it out to parents) means that the Department (as Data Controller) has lost control of the statement of and explanation of purposes and processing. That means that no assumptions can be made now about what parents understood they were agreeing to because the ‘official’ form of communication may not have been used.
- There is no clear justification for a retention period of raw, identifiable, data until a child’s 30th year.
- The stance adopted by the Minister is not good. In the face of valid criticism she has adopted an entrenched position, clutching to the DPC as a shield rather than a fig leaf. Given the narrative arc in the Irish Water debacle that is, as Sir Humphrey Appleby would say, “Courageous Minister, very courageous”. (Data relating to children, “all cleared by the DPC”, challenge in public by knowledgeable experts, public disquiet, “DPC said it was OK”, immediate reverse ferret after a reshuffle… [we are at stage 3 now].)
Pausing. Assessing and defining an appropriate strategy for strategic use of data in education for statistical planning and centralisation of operational data, combined with an appropriate Privacy Impact Assessment that takes in to account recent rulings on necessity and proportionality by the CJEU would be advisable at this time.
Anything else is simply courageous, Minister.