In Defence of the Public Domain

A university, a museum, or a charity does not raise £10m or £50m or more by accident. An alumna did not wake up one morning thinking “I must give £1m to my alma mater.”

This happened because a dedicated group of professionals managed a process that led to the alumna being asked for a very large philanthropic gift.

At the heart of that process was, and is, the prospect research team. The team used – like we all do – public domain information to identify and understand potential supporters.

But now one government agency, the Information Commissioner’s Office, wants to stop us using public domain information. In the emotionally-worded press release that accompanied the penalties for the British Heart Foundation and RSPCA, the ICO says that “companies used other information from publically [sic]-available sources to investigate income, property values, lifestyle and even friendship circles.” ICO staff members at fundraising and research conferences throughout 2016 told us that the information on directors held by Companies House is compiled for one purpose (regulation of business) and therefore cannot be used for another (prospect research.)

So perhaps we cannot use public domain information to identify and understand potential supporters.

Purposes

But think for a moment.

Why do I have my profile in LinkedIn? What is my ‘purpose’? Is it just a marketing tool, showing potential clients what a clever chap I am? No! I had all sorts of purposes in mind when I created my profile in LinkedIn. I wanted to reassure clients that I was, and am, a decent person. I am proud of what I have done and wanted – sorry folks, this gets personal – to boast a wee bit about setting up Factary, about the books I have written and the languages I speak. I wanted access to the profiles of other people with whom I might work or even play. I wanted to explain who I am and how I got here – it’s cathartic. And I wanted a useful depository for my lifeline – to remind me of exactly when I went to school or which year I started in fundraising.

I had a whole variety of ‘purposes.’

Expectations

As a result, I have a very wide variety of ‘expectations.’ This word is important, because the ICO believes that “millions of people who give their time and money to benefit good causes will be saddened” by the news that charities targeted them for more money; in other words, this is about what people expect. With my profile in LinkedIn I expected that people would look at my personal story. I expected that Southampton Uni, my alma mater, would contact me about a donation (they did.) I expected that I would be networked to, and with (and indeed welcomed that opportunity.)

The person who has her biography in Who’s Who, or who gives a personal interview in the Times, or who is listed as the director of a company, or as the trustee of a charitable foundation has the same wide range of expectations.

The ‘purpose’ of a personal interview in the Times is to sell advertising space on the facing page of the newspaper; “All the papers that matter live off their advertisements,” said George Orwell, in Why I Write*.

But that is not the ‘purpose’ that the interviewee had in mind when she was approached by the journalist. Nor is it the ‘expectation’ of the interviewee. She knows, when she agrees to give the interview, that her warts-and-all will be exposed to public view. She expects that she will receive praise, opprobrium, investor pitches, car sales teams and an approach from a headhunter as the result of her interview.

The Public Domain

Information on company directors in Companies House – the Registrar of Companies for England and Wales – is made public for various purposes. The Registrar was created by The Joint Stock Companies Act of 1844. In the debate of the Bill that would create the Act (3rd July 1844), Mr Gladstone said “The principal object of the Bill was, that there should be established a public office, to which all parties soliciting to take part in Joint Stock Companies might repair, in order to know the real history of these companies.” Mr Gladstone was talking very clearly about corruption; “…it was most important that the Legislature should put a stop to the system that had been so long carried on of attaching the names of hon. Members, and men of importance and property, to schemes in order to entrap the unwary.”

So here again, at Companies House, we have a variety of purposes for information in the public domain. It is right and proper that prospect researchers use Companies House information to establish the “real history” of “men of importance and property”, and, 172 years after Mr Gladstone’s speech, of women of importance and property too.

All the universities that are engaged in raising funds, along with our theatres, museums and charities, manage a process that results in high-value philanthropy. At the heart of that managed process is prospect research. And alongside every prospect researcher is public domain information.

People in the public domain – in Who’s Who, or LinkedIn, the Times or Companies House – are there for a variety of ‘purposes.’ They expect that the information will be used in a variety of ways – including, yes, by people who will lead them into great philanthropic acts.

We prospect researchers do great works with public domain information. It is wholly legitimate that we use public domain information for this purpose. We must defend our right to do so.

Chris Carnie is the author of “How Philanthropy is Changing in Europe”, published by Policy Press in January 2017. He writes in a personal capacity.

*The fuller quote, given here is:

“Is the English press honest or dishonest? At normal times it is deeply dishonest. All the papers that matter live off their advertisements, and the advertisers exercise an indirect censorship over news.”

15 comments on “In Defence of the Public Domain

  1. Clearly it is a nonsense to argue that the information on directors held by Companies House is compiled for one purpose (regulation of business) and therefore cannot be used for another (prospect research.). The Open Government Licence states that we are free to exploit the information commercially and non-commercially for example, by combining it with other Information, or by including it in our own product or application.

  2. Interesting. I think you miss the point Chris. This isn’t about “doing good”- I don’t think that was the legal argument on the Civil Monetary Penalty Notice from the ICO. I read it & it appears to be because of a breach of Principle 1 & 2 of the Data Protection Act. I had a read and their basis for the fine appears to be legit/grounded.

    Principle 1 says: Personal data shall be processed fairly and lawfully

    Principle 2 says: Personal data shall be obtained only for one or more specified and lawful purposes, and shall not be further processed in any manner incompatible with that purpose or those purposes.

    The take home message isn’t that prospect research/wealth screening is illegal or wrong, it just means organisations need to be transparent about how that information will be used.

    For example, “We will provide your data to a third party processor who will investigate your wealth” – the problem is that no charity would want to put that in their notice because no one will opt in. Had the Charities had that in their notice, they would be successful in appealing their decision.

    I recommend this piece by a Data Protection Specialist about the recent fines: https://2040infolawblog.com/2016/12/09/fair-cop/

    Also, charities are preparing for the General Data Protection Regulation (GDPR). I’d recommend you research it Chris, you will find that after May 2018, the ICO will have the power to investigate processors (currently only Data Controllers are liable) & they’ll have the power to fine upto 20millions euros or 4% of global turnover. What does this mean for Factary & PfG?

    • Thanks for your comment Jay. The link (so that other readers are aware) points to a blog by Tim Turner, who formerly worked at ICO and has trenchant opinions on this topic.

    • Jay – you may not have been present when an ICO official said that the use of any Public domain information was probably unlawful.

      You suggest a line in a privacy notice that says “We will provide your data to a third party processor who will investigate your wealth”

      What would be more accurate would be to say this:

      “If you give, we may use your data in ways which enable us to use our resources in the most effective way in order to continue to raise funds for the important work of

      “One of the things we do is to try to understand what would be an appropriate future level of support to ask for. Clearly, someone’s financial situation has a bearing on this. We will ask a specialist company to use data which is already in the public domain to provide us with information which helps us approach you in ways we hope will be both appropriate and respectful. The specialist does not at any time obtain control of, or retain, your data. In fact we could do this work ourselves if we recruited enough specialist staff, but in the same way we use a mailing house to send out letters, it’s a far better use of charitable funds to use a specialist to do this for us.”

      • That line cannot be disputed & it’s short, direct to the point. Transparency is key.

        The issue which you haven’t addressed is that GDPR will soon come into force. Also, I have noted that the charities have not appealed ICO’s penalty. The precedence has been set. It is likely now that more penalties will trickle through. Charities will cut all ties with prospect research unfortunately.

        I keep hearing “it’s public information.” Do you believe any organisation can process that information because it’s on the public domain?
        If so, unfortunately you need better Data Protection advisors/lawyers. You’ll find that that information is public because of certain laws other regulations (no where will it say other organisations can take this data & make money from it). Unless prospect research becomes completely voluntary project, I don’t think there will be any leniency from regulators.

        The more I read into the ICO decision, it really is the end of prospect research unless you can get opt-it or explicit consent.

        Are you familiar with the powers the ICO will get in 16months time? As someone who is very familiar with the charity sector, I can tell you that charities are pulling out. The only way prospect research will survive is if you can convince data subjects (donors) trust.

        The problem is, donors don’t know this is going on so how can they object/support. You’ll find this is the crux of the matter and until this is addressed, prospect research is is like a lamb to the ICO slaughterhouse. As I mentioned previously, ICO only has the power to investigate data controllers although it could class prospect research organisations as data controllers in their own right- if they did, I’m sure they can argue that charities do not control the way wealth screeners conduct their research. If I was representing my charity (who was under ICO scrutiny) I’d argue that.

        Be prepared & try and get consent to protect against the inevitable regulatory action.

  3. and newspapers and investigative journalists use Companies House data for purposes well outside the “regulation of business” too but, unless my memory fails me, I don’t recall the ICO fining any of them for using the information

    • Thanks for your comment Jeremy. As you suggest we are dealing with basic rights / freedom of information issues here. We will continue to defend the use of public domain information by journalists, campaigners…and prospect researchers.

  4. Great article Chris. It’s heartening to see so many fellow prospect researchers publicly supporting what we do and why. Let’s also not forget the need for due diligence. In the past organisations accepting charitable donations have been criticised for not being strategic or diligent about who they accept these donations from. We must research potential donors, aside from who makes the approach, to understand reputational risk. I’m pretty sure we are not the only sector who needs or wants to know who their associates are.

  5. Chris, you are right I believe in your concerns about public domain information and the ruling could be the thin end of a very large wedge. The comments about transparency are, I think, only partly relevant as, for example, the Sunday Times happily researches and publishes data on many high net worth individuals. As we’ve seen all fundraisers need to be more diligent and open in their research.

  6. Chris, thank you for this timely and excellent article. We are at a crucial moment when it is vital that all those interests are served by prospect research make their voices heard and work together to ensure that their vital work can continue.

  7. I don’t believe Prospect Research is dead.

    Here are a couple of very helpful links to do with a “legitimate interest” defence – hope they are helpful (Richard Marbrow from the ICO actually raised the prospect of legitimate interest at the CASE Dev Services Conference, though didn’t really help to apply it).

    Article 29 Data Protection Working Party’s opinion on the “legitimate interests of the data controller” (see in particular p24 and 25 with charitable):
    http://ec.europa.eu/justice/data-protection/article-29/documentation/opinion-recommendation/files/2014/wp217_en.pdf

    and Slaughter and May’s summary of the opinion:
    https://www.slaughterandmay.com/media/2162779/when-is-processing-personal-data-in-your-legitimate-interests.pdf

    It sounds like it is about balance – and I would say that Prospect Researchers are trying their hardest to identify people who would *want* to be involved with their charity, and to allow us to approach all of our supporters in a way which is sensitive and appropriate to their circumstances. If we are giving our “previously unknown” prospects the option to opt out of any further communication from our charity (as we should be) , then I would say we are maintaining a good balance of our legitimate interest with our supporters and prospective supporters’ interests.

    • Thanks Jon for your considered and useful response. I agree that it is legitimate for prospect researchers to want to understand their donors and potential donors – and I too would argue that prospect researchers in the UK, thanks to the guidance of RiF and APRA, are working hard to ensure that they are operating legally, and ethically.

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