Schools need consent to fingerprint kids?
ICO sticks its neck-out - and gets it in a twist
The Information Commissioner has declared that schools should ask for the consent of children and parents before they take pupil's fingerprints, despite there being no legal obligation for them to do so.
The data protection supervisor issued the informal advice yesterday, contrasting with previous public comments on the issue of consent, some of them related to its official guidance on school fingerprinting, which it is still drafting.
A spokesman for the Information Commissioner's Office said: "Because of the sensitivity of the issue, we are recommending that schools follow best practice and ask permission of parent and pupil before they take a fingerprint."
However, he said: "There's nothing in the act that makes that clear," and could not explain what would happen to schools that failed to follow this advice. Neither could he say at what age a child could assume legal responsibility for its own behaviour, without seeking parental advice.
Received wisdom - established by the Gillick precedent - has it that a child can decide for itself on matters of data protection when it is mature enough.
This was the basis on which the ICO worked till now. Last September when the ICO guidance on school fingerprinting was said to be just weeks away from publication, David Smith, now deputy commissioner, said that schools could fingerprint children without parental consent under the Data Protection Act. As long as kids were deemed to be old enough to make their own minds up, the school could ask them and keep parents out of the loop.
Only yesterday, the ICO issued an official guidance note on the age at which children were deemed to be old enough to ask under the Data Protection Act to see their school records. The note accorded with its early view of fingerprinting: pupils where old enough when they were mature enough.
"As a general rule, students aged 12 and over should be considered mature enough to make a request for their own personal information," said assistant commissioner Phil Jones in a written statement yesterday.
"But as young people mature at different ages schools must treat each request on a case by case basis,” he said.
Chris Pounder, a data protection consultant for the legal specialists Pinsent Masons, said the same was true of fingerprinting school children: "It all depends on the capacity of the young person in every case. Usually, under 12 you normally consider parental rights prevail - over 15, its usually the young person's right which prevail. In the middle, it can be 'judgement of Solomon' time."
How could the ICO say that children of around 12 years were deemed mature enough to view their school records, but that children of similar age were not mature enough to hand their fingerprints over to headmaster?
The ICO said reading your school records was not quite the same as handing over your dabs, particularly when that information was being handed to a state that was growing increasingly enamoured by the idea of sharing such data with other arms of government and even the private sector.
"We think the fingerprint issue is different because someone would need to have a fairly sophisticated comprehension to understand the implications of sharing information," said the ICO spokesman.
"It's a contentious issue. Can a 12 year old be expected to understand that? It's a different ball game," he added.
It might be that the ICO's fears that state data sharing schemes might run out of control before we have got a grasp of what they are for the surveillance society, but there is still no clear legal basis for the ICO's statement on school fingerprinting.
Terri Dowty, spokeswoman for Action on Rights for Children, said a child might not understand the consequences of handing over information about themselves, but the issue of consent with regard to data sharing was an "incredibly murky area".
"For example, they might agree to a teacher telling a social worker that they have dyslexia, but they might not realise that other things, like the child's mental health or family factors might be shared," she said.
"The ramifications for the child of data sharing when its going on a permanent record is too hard to grasp," she added.
The ICO's spokesman couldn't even say at what age a child would be deemed capable of understanding the consequences of handing over its fingerprints, if the usual age of 12 was too young. Is it 16 perhaps? Has the ICO stuck its neck out a little too far, perhaps?®