The APF participates in a great many consultations with government agencies,corporations, industry associations and other public interest advocacy organisations. A vital element of every consultation is the provision of information by each party to the other parties that are involved.
This document summarises the APF’s Policy on the question of confidentiality of information provided by parties to consultative processes.
Where a process does not satisfy these conditions, it is not a genuine consultation. In that case, it is inappropriate for the APF to participate. The APF will communicate that to the organisation concerned. If the problems cannot be resolved, the APF will subsequently communicate that to all relevant parties.
Sufficient information must be published. Otherwise the APF is being used as a shield to protect the subject of the consultation from public purview.
Sufficient information must be disclosed to the APF, at a sufficiently early stage in the process, and sufficiently long before the consultation event. Otherwise the APF is precluded from undertaking appropriate analysis, and hence the consultative process cannot be effective.
The APF representative(s) participating in the process must be able to disclose sufficient information to the APF Board. Otherwise the APF representative(s) cannot act as an agent for the APF, because the APF would be prevented from forming a view on the matter.
Level of Detail. In many circumstances, there is plenty of scope for discussion about the level of detail that needs to be published, to be disclosed to the APF Board, and to be disclosed to the APF representative(s). Where appropriate, greater detail can be placed in Appendices to documents, with the more widely-available documents containing only the information necessary to gain a sufficient overview.
Application of ‘In Confidence’ Constraints. In some circumstances, some information may be provided to the APF Board and/or to the APF representative(s), in confidence. Further, it may be reasonable to request the APF representative(s) to sign a Non-Disclosure or Confidentiality Agreement (in order to ensure that they have appreciated that the law of confidence may apply), provided always that:
- only those limited items of information for which suppression is actually justified are declared to be In-Confidence; and
- the Agreement is provided to the APF well prior to attendance at the consultation event, and under no circumstances sprung as a surprise when the APF representative(s) arrive
‘Chatham House Rules’. Consultations, or parts of them, may be held under ‘Chatham House rules’, whereby “participants are free to use the information received, but neither the identity nor the affiliation of the speaker(s), nor that of any other participant, may be revealed” (Wikipedia). Chatham House Rules apply only to the detail of ‘who said what’ and do not prevent parties from sharing documents provided as a basis for the consultation.The APF fully supports appropriate use of this approach, because it avoids unnecessary constraints on meaningful conversations.
Specific Categories of Information
In general, all information that is not reasonably subject to constraints needs to be open, in order to enable effective interactions to occur. The description of the proposal must be at a level of detail sufficient to ensure that it can be properly understood and evaluated. Explanations are necessary of the functions that the system performs or is to perform, the personal data involved, the categories of people who are encompassed, how the system will work, where, and why.
Examples of information whose circulation might be reasonably subject to some constraints:
- technical details that unnecessarily disclose information of the nature of trade secrets
- technical details that are actively security-sensitive
- fine details of commercial contracts and arrangements
- ‘Working Paper’ or ‘For Discussion Only’ material that does not contain official statements by the organisation concerned, but rather provide indications of the directions of the organisation’s thinking and/or is intended as a means of stimulating appreciation of, and debate concerning, the issues
- propositions of the nature of ‘flying kites’, ‘testing the water’ or hypotheticals, designed to test out boundary-conditions
Examples of information whose circulation should be seldom if ever subject to constraints:
- high-level architectural models
- descriptions of business processes that handle personal information, and business rules relating to data collection, storage, use, disclosure, retention and destruction
- the data schema and data-item definitions
- the business case
- the risk assessment(s)
- the detailed justification for each privacy-intrusive feature
- technical information about technology that is new, novel and/or privacy-intrusive
- detailed descriptions of privacy-sensitive activities, such as identification, identity authentication, data aggregation, profiling and re-identification