Data protection doesn’t require important records to be destroyed

FOIMan explains why any organisation which blames the destruction of important records on data protection rules is being either disingenuous or is ignorant of what the law requires.

In recent weeks The Guardian has drawn attention to the plight of those innocent people who have lived in the UK for many years, only to be told recently by the Home Office that they could face deportation. This week the Home Secretary finally apologised, but many people are still in a legal limbo, unable to prove their status, not realising that they would ever need to.

Now a former Home Office employee has reported that disembarkation cards which might have helped establish the status of many of these people were deliberately destroyed by the Home Office a few years ago. Responding to the claim, the Home Office has conceded that records were destroyed but claims that this was necessary to comply with the Data Protection Act (DPA). The records were, according to them, destroyed:

to ensure that personal data … should not be kept for longer than necessary. Keeping these records would have represented a potential breach of these principles.

This argument has a long pedigree. It was cited by a police chief constable at the time of the Soham murders as a reason why records were not retained about Ian Huntley which might have prevented his employment as a caretaker at a school. It was used more recently by the House of Commons to justify the early destruction of MPs’ expenses records.

In both these cases, and in the latest example, this is just plain wrong. If the press officer or whoever drafted this statement had checked with their Data Protection Officer, they would have been able to tell them this.

It is true that one of the data protection principles requires that personal data be kept no longer than necessary, and that data controllers – organisations – are required to put in place procedures to ensure this. However, note that word “necessary”. It places the responsibility fairly and squarely at the door of the organisation that has collected the data to decide what is “necessary” and to justify it. If records are still being used to answer enquiries about individuals’ immigration status (as the Home Office whistleblower has maintained), or are at the centre of one of the biggest scandals to hit modern British politics, I would suggest that it is “necessary” to retain them, and to do so can be easily justified. Data protection laws do not say they must be destroyed.

Furthermore, even if there is a view that it is no longer necessary to retain records for their original purpose, both the DPA 1998 and GDPR permit records to be retained for historical research purposes in a record office. The Home Office whistleblower reports that it was suggested that the cards be offered to a record office, but that they were told that no archive wanted them. As public records, the National Archives would have had first option on these and since these records would seem to be of great value to genealogists and those studying the history of migration and minority ethnic communities in the UK, it is hard to imagine them turning such an offer down. Even if they did, are we to believe that other record offices, including for example Brixton’s Black Cultural Archives (based in Windrush Square), a repository specialising in the history of Britain’s African and Caribbean communities, would have said no? It seems unlikely if they were given the opportunity (and the significance of the cards was explained to them). Data protection rules would have allowed the cards to be retained indefinitely in a record office.

Data protection rules simply do not require records with continuing value to be destroyed. Anyone claiming that they do is being disingenuous or is ignorant of what data protection requires. Let’s hope that organisations – particularly those that should know better – stop churning out this misconception every time that they are criticised for the disposal of records.

References:

Home Office destroyed Windrush landing cards, says ex-staffer, The Guardian, 17 April 2018 https://www.theguardian.com/uk-news/2018/apr/17/home-office-destroyed-windrush-landing-cards-says-ex-staffer

MPs to escape expenses investigations after paperwork destroyed by Parliament, Daily Telegraph, 2 November 2014 https://www.telegraph.co.uk/news/newstopics/mps-expenses/11204405/MPs-to-escape-expenses-investigations-after-paperwork-destroyed-by-Parliament.html

The politics of records management, FOIMan blog, 7 November 2014 https://www.foiman.com/archives/1337

Soham police chief ‘ignored advice’, The Guardian, 26 March 2004 https://www.theguardian.com/uk/2004/mar/26/soham.ukcrime

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