Legal position on biological records

The request was partially successful.

Dear Information Commissioner’s Office,

Please could you release, in electronic form via this WhatDoTheyKnow request, any recorded information which you hold in relation to the legal position surrounding biological records under the Data Protection Act. I use the term 'biological records' in its narrow sense, as used by, for example, the Biological Records Centre of the Institute of Terrestrial Ecology, or the National Biodiversity Netwrok, i.e. a record, made by a recorder/recorders, of a taxon, habitat type, or other recordable ecological phenomenon, at a location, on a date or during a time period.

I would like to see copies of any of the following information:
a) any requests of any kind made to the ICO requesting clarification of the legal position
b) any internal correspondence within the ICO in which this subject is discussed
c) any correspondence or other documents which the ICO has sent out explaining or clarifying its view on this
d) any other correspondence in the ICO’s possession in which this subject is referenced
e) minutes or other notes from any meetings which discuss this subject of document either the ICOs’ position or any discussions about the ICO’s position
f) any discussion papers or similar documents on this topic
g) copies of any advice sought by the ICO on this topic from other organisations or individuals
h) documents associated with any formal or informal consultation ICO has carried out on this topic

Please ensure, of course, that you redact any personal data from your response in order not to contravene the DPA.

Yours faithfully,

Susan Davis

Information Commissioner’s Office

PROTECT

 

24th May 2013

 

Case Reference Number IRQ0498808

 

Dear Ms Davis

Request for Information
 
Thank you for your correspondence dated 22 May 2013. 
 
Your request is being dealt with in accordance with the Freedom of
Information Act 2000.  We will respond promptly, and no later than 20 June
2013 which is 20 working days from the day after we received your request.
 
Should you wish to reply to this email, please be careful not to amend the
information in the ‘subject’ field. This will ensure that the information
is added directly to your case. However, please be aware that this is an
automated process; the information will not be read by a member of our
staff until your case is allocated to a request handler.
 

Yours sincerely

Jolyon stone
Lead Information Governance Officer

show quoted sections

Information Commissioner's Office, Wycliffe House, Water Lane, Wilmslow,
Cheshire, SK9 5AF
Tel: 0303 123 1113 Fax: 01625 524 510 Web: www.ico.org.uk

Information Commissioner’s Office

PROTECT

 

5th June 2013

 

Case Reference Number IRQ0498808

 

Dear Ms Davis

Further to our acknowledgement of 24 May 2013 I am writing to seek
clarification of your request.
 
In your correspondence you requested: “the legal position surrounding
biological records under the Data Protection Act.”. However you did narrow
the definition to: “i.e. a record, made by a recorder/recorders,
of a taxon, habitat type, or other recordable ecological phenomenon, at a
location, on a date or during a time period”
 
In may be helpful to explain that any involvement of the Information
Commissioner's Office with biological records would probably be related
to  biometric technologies i.e. those which automatically measure people’s
physiological or behavioural characteristics. Examples include automatic
fingerprint identification, iris and retina scanning, face recognition and
hand geometry. The work of the Commissioner would be more around use and
retention of such data.
 
I would be most grateful if you could clarify whether you mean biometrics
as described above or any other type of data. I am also not clear what you
mean by “the legal position surrounding biological records”. Please
provide clarification/ description of the information you are seeking, for
example do you mean the commissioner’s views on the use or retention of
such data? It may be helpful to clarify that the ICO’s position would be
that any use or retention of such data (data from which an individual is
identifiable) should be in compliance with the 8 principles of the Data
Protection Act.
 
Once you provided some clarification we will be able to begin to process
your request.  If we do not receive clarification within three months your
request will be considered to have lapsed. (Under section 1(3) of the
Freedom of Information Act (FOIA), a public authority need not comply with
a request unless any further information reasonably required to locate the
information is supplied).
 
 

Yours sincerely

Iman Elmehdawy
Lead information Governance Officer

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Information Commissioner's Office, Wycliffe House, Water Lane, Wilmslow,
Cheshire, SK9 5AF
Tel: 0303 123 1113 Fax: 01625 524 510 Web: www.ico.org.uk

Dear Iman,

Thank you for your email asking me to clarify my request, which I am happy to do.

Firstly, the request is most definitely not about biometric technologies. Biometric data is a very different category of data from biological records in the sense covered by my request.

I am asking about biological records, in the sense used by the NBN, ITE etc, and defined in my original request. If you are not familiar with any of the words used in my definition, please let me know which ones, and I will be happy to explain those to you. If you are not familiar with the concept of a biological record as used by NBN, ITE etc, please could I suggest that you visit their websites, where you can find out more.

If it helps, I can give you an example: "David Attenborough (who) saw a Mountain Gorilla (what) on 4 June 1966 (when) in Uganda (where)".

I omitted one vital phrase from my original request, which I believe may be contributing to your difficulties, and I apologise for that: "legal postition" should have read "legal position in respect of information legislation such as the Data Protection Act, Freedom of Information Act and Environmental Information Regulations".

You can appreciate that such data may be held (in large quantities) by public bodies and so is within the scope of the EIRs (and possibly the FoI Act).

You can also appreciate, I hope, that a biological record contains personal data (in the sense used in the DPA) about the individual in the "who" part of the record. For example, it is possible to tell from this record that David Attenborough was in Uganda on the date in question (assuming the record is accurate), and therefore the DPA has some bearing on how it should be held, processed etc.

In the past, ICO has been consulted on this subject by, and given guidance to, organisations involved in biological records management. It is primarily the recorded information associated with those external communications which forms the subject of my request, however I made the request slightly broader than that to cover internal information as well.

I hope that this has clarified my request sufficiently: if not, please do get back in touch.

Yours faithfully,

Susan Davis

casework, Information Commissioner’s Office

Thank you for emailing the Information Commissioner's Office (ICO).  This
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Information Commissioner's Office, Wycliffe House, Water Lane, Wilmslow,
Cheshire, SK9 5AF
Tel: 0303 123 1113 Fax: 01625 524 510 Web: www.ico.org.uk

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Dear Iman,

I have not heard back form you since my reply on 5 June. Can you tell me whether you now have enough information to be able to respond to my request?

Yours,

Susan

Information Commissioner’s Office

PROTECT

 

18th June 2013

 

Case Reference Number IRQ0498808

 

Dear Ms Davis

Further to your clarification email of 5 June 2013 we are now in a
position to respond to your request for information.
 
On 22 May 2013 you requested the following information:
 
“Please could you release, in electronic form via this
WhatDoTheyKnow request, any recorded information which you hold in
relation to the legal position surrounding biological records under
the Data Protection Act. I use the term 'biological records' in its
narrow sense, as used by, for example, the Biological Records
Centre of the Institute of Terrestrial Ecology, or the National
Biodiversity Netwrok, i.e. a record, made by a recorder/recorders,
of a taxon, habitat type, or other recordable ecological
phenomenon, at a location, on a date or during a time period.
 
I would like to see copies of any of the following information:
a) any requests of any kind made to the ICO requesting
clarification of the legal position
b) any internal correspondence within the ICO in which this subject
is discussed
c) any correspondence or other documents which the ICO has sent out
explaining or clarifying its view on this
d) any other correspondence in Information Commissioner's Office’s
possession in which this
subject is referenced
e) minutes or other notes from any meetings which discuss this
subject of document either the ICOs’ position or any discussions
about Information Commissioner's Office’s position
f) any discussion papers or similar documents on this topic
g) copies of any advice sought by the ICO on this topic from other
organisations or individuals
h) documents associated with any formal  or informal consultation
ICO has carried out on this topic
 
 
We requested clarification of your request on 5 June 2013 to which you
replied:
 
“Firstly, the request is most definitely not about biometric technologies.
Biometric data is a very different category of data from biological
records in the sense covered by my request.
 
I am asking about biological records, in the sense used by the NBN, ITE
etc, and defined in my original request. If you are not familiar with any
of the words used in my definition, please let me know which ones, and I
will be happy to explain those to you. If you are not familiar with the
concept of a biological record as used by NBN, ITE etc, please could I
suggest that you visit their websites, where you can find out more.”
 
Response to request
 
In light of your clarification, we liaised with the ICO departments which
were most likely to hold the requested information. All the responses we
received indicate that no information is held in relation to your request.
 
From the example you provided "David Attenborough (who) saw a Mountain
Gorilla (what) on 4 June 1966 (when) in Uganda (where)", our understanding
is that you are seeking information about personal data contained in the
biological records as specified in your request.

It may be helpful to explain that personal data contained in any type of
record should be processed in accordance with the Data Protection Act
(DPA) and specifically in compliance with the 8 principles of good
information handling.

The ICO regulates the Data Protection Act 1998 which means that we handle
complaints about the processing of personal data by other organisations.
We also produce policy lines and consider the application of the
legislation in a more general sense. However, we have not done work on
biological records specifically. As I suggested in my clarification we
have done work around the use of biometric technologies but we understand
this is not what you are looking for.

The ICO, in its function as a statutory regulator of information rights
legislation does not use biological records as part of its regular
business.
Hopefully, this helps to explain why we do not hold recorded information
in response to your request for information.

As part of your clarification you stated: I omitted one vital phrase from
my original request, which I believe may be contributing to your
difficulties, and I apologise for that: "legal postition" should have read
"legal position in respect of information legislation such as the Data
Protection Act, Freedom of Information Act and Environmental Information
Regulations".

We understand from this that you might be interested in the approach to
the disclosure of personal data in response to information requests made
under the DPA, FOIA or EIR.
 
When handling a request under the Freedom of Information Act 2000 (FOIA)
or the Environmental Information Regulations (EIR) for information that
may include personal data, the public authority must first establish
whether the information constitutes personal data
within the meaning of the DPA.
 
•If the information constitutes the personal data of the requester,
then it is exempt from disclosure. This is an absolute exemption,
and there is no duty to confirm or deny whether the information
is held. Instead, the public authority should deal with the request
as a subject access request under the DPA. If the information
requested includes personal data of other people, then how this
should be handled depends on whether it is separable from the
requester’s personal data.
•If the information constitutes the personal data of third parties,
public authorities should consider whether disclosing it would
breach the data protection principles. The only one which is likely
to be relevant is the first principle. The public authority can only
disclose the personal data if to do so would be fair, lawful and
meet one of the conditions in Schedule 2 of the DPA (and in the
case of sensitive personal data, a condition in Schedule 3)
 
I have included below links to information that you may find of interest
in explaining the Commissioner’s views and guidance on the interaction
between DPA, FOIA and EIR.
 
 
Please find below a link to our guidance on the application of section 40
 (personal data) of the FOIA.
[1]http://www.ico.org.uk/for_organisations/...
 
 
Please also find below a link to our guidance on the application of
regulation 13 of the EIR
[2]http://www.ico.org.uk/for_organisations/...
 
It may be also of interest to you to access all the lines to take or the
decision notices we issued on application of section 40 exemption or
regulation 13 exception where the complaint was about personal data
contained within information that comes in the scope of a request handled
under Freedom of Information Act 2000 or Environmental  Information
regulations.
 
Please find below a link to our Decision Notices database
 
[3]http://www.ico.org.uk/enforcement/decisi...
 
 
The Freedom of Information knowledge base covers issues that have arisen
from the cases we deal with and from appeals to the Information Rights
Tribunal. A link to the knowledge base is provided below
 
[4]http://www.ico.org.uk/foikb/disclaimer.h...
 
 
Both databases are searchable by section.
 
We also make available our consultations through the following link
 
[5]http://www.ico.org.uk/about_us/consultat...
 
I hope you find the provided information of assistance
 
If you are dissatisfied with the response you have received and wish to
request a review of our decision or make a complaint about how your
request has been handled you should write to the Information Governance
Department at the address below or e-mail
[6][email address]
 
Your request for internal review should be submitted to us within 40
working days of receipt by you of this response.  Any such request
received after this time will only be considered at the discretion of the
Commissioner.
 
If having exhausted the review process you are not content that your
request or review has been dealt with correctly, you have a further right
of appeal to this office in our capacity as the statutory complaint
handler under the legislation.  To make such an application, please write
to the First Contact Team, at the address below or visit the ‘Complaints’
section of our website to make a Freedom of Information Act or
Environmental Information Regulations complaint online.
 
A copy of our review procedure is available [7]here
 
 
Yours sincerely

Iman Elmehdawy
Lead Information Governance Officer

show quoted sections

Information Commissioner's Office, Wycliffe House, Water Lane, Wilmslow,
Cheshire, SK9 5AF
Tel: 0303 123 1113 Fax: 01625 524 510 Web: www.ico.org.uk

References

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