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.”


ICO rulings and Database Screenings

The ICO fines for BHF and RSPCA that were announced this week have caused understandable concern for prospect researchers and wider fundraising teams across the sector. This blog post is Factary’s initial response to this news.

The ICO has so far issued two statements about the fines levied (these can be seen here and here). The statements outline that the fines are being issued for various infringements of the Data Protection Act through wealth screening, data appending and data sharing. To be clear, this blog post refers only to the situation with wealth screening, or, as we call it, Database Screening. Data appending and data sharing of bulk data are not services we provide at Factary so we won’t comment on the situation with these fines.

The first thing to mention is that we are expecting more comprehensive information about these fines to be issued on Friday 9th December by the ICO. The full penalty notices will be published on the ICO website and Twitter feed along with details of the enforcement action. Until we have reviewed the full documents it will be difficult to respond properly to this situation. That said, since the Daily Mail broke the story (ahead of the ICO announcement) of the fines on Tuesday 6th, we have received many emails from concerned clients, colleagues and friends worrying about the implication of these fines for non-profits and prospect research, so we wanted to issue a response as soon as possible to answer some of the most pressing questions, some of which are…

Can we still carry out Database Screenings?

It seems that one of the main reasons for the fines levied for ‘wealth screenings’, as explained in the information we have seen from the ICO so far, was because “Donors were not informed of these [Screening] practices, and so were unable to consent or object” to them. The lesson here is not that Screening is unlawful from the ICO’s viewpoint, but that non-profits and Screening service providers need to be open and transparent about what they will use personal data for. This is something that we mentioned in our previous blog on data protection.

The problem still remains, of course, that we feel neither the ICO nor the Fundraising Regulator have been too clear on how this information should be presented to supporters or indeed what information is necessary / sufficient. Hopefully they will do more to educate the sector and provide greater clarity. In the meantime we would expect that the vast majority of non-profits have completed and published, or are working on, improved privacy notices that include information about prospect research so that their supporters are fully aware of what their data is used for. The RiF ‘data protection working group’ will be drawing together samples of these, and this is something Factary will be helping with. We’ll post news on this here on the blog, on our Twitter feed and the RiF committee will also post on their Twitter feed, so keep an eye out.

If you’d like to discuss privacy notices or statements please do email me.

What about previous Screenings?

One of the questions many are asking now is, “When I last undertook a Screening, the non-profit I work for did not have a robust privacy policy in place. Is there a chance that we will be fined, too?” The short answer to this is, of course, that it is entirely possible more fines will be issued. The long answer may have to wait until we have received more information from the ICO on the nature of the fines against BHF and RSPCA in relation to Screening; until we know the full extent of the infringement, it will be difficult to understand the full impact.

Either way, there is very little you can do about previous Screenings; you can really only make sure you are fully prepared and compliant for the next.

What can the sector do?

From our point of view, some of the ICO’s latest statements set a tone which portrays Screening (and prospect research more generally) negatively. The ICO statements said, “The millions of people who give their time and money to benefit good causes…will be upset to discover that charities abused their trust to target them for even more money”. This kind of reporting will no doubt result in harmful press articles (aside from the inevitable articles from the Daily Mail which I won’t reference here) such as the BBC and even Third Sector where they have reported negatively that charities are “secretly screening donors” with a “disregard for people’s privacy”.

We feel the general tone used to report on these fines suggests a lack of understanding of what Screening is and why it is used – and, by extension, what prospect research is and what it is for. We should, as a sector, take some responsibility for this as we have not historically been very open in explaining how Screening and prospect research benefits donors and helps to improve their relationships with the causes they support. That said, we can’t shoulder all the blame, as many people I have spoken to have found the ICO’s approach to communication on these issues (and when directly speaking at conferences during 2016) to also be quite negative. For example, many of the emails I have received since Tuesday start with, “One of my trustees has read the Daily Mail article…” or, “Our compliance team has seen the ICO report…”, followed by concerned questions about the legality of Screening / research. This highlights that the negative and sometimes misleading reports that are in the public domain are already having a troubling impact on our abilities to carry out the normal functions of prospect research. We understand the genuine reasons for the ICO’s actions, but it serves no purpose to paint a negative image of the sector, who largely do incredible work for people and society.

This means it is up to us push back on the negativity and educate our supporters, the wider public and even (in some instances) our own colleagues about prospect research. This echoes what was said at the RiF Conference; we need to take ownership of communicating the need, impact and benefits of prospect research through privacy statements, protocol and policies. We need to be positive in our communication and underline the benefits to donors and non-profits of prospect research – and, to highlight the negative consequences of fundraising without prospect research.

What should we do now?

  • Be clear on why prospect research is vital for fundraising in your organisation
  • Educate trustees (and wider colleagues) if necessary on the need and impact of research
  • Ensure privacy notices are robust and include information on Screening and research
  • Share best practice with colleagues from other non-profits on privacy notices
  • Also, note that when including information on Screening in a privacy notice you’ll need to link to the privacy statements of your chosen Screening company to ensure that the company is also compliant with data protection (as examples, Factary’s is here and Prospecting for Gold’s can be found here)

What happens next?

  • Friday 9 December: The penalty notices will be published on the ICO website along with details of the enforcement action. Hopefully this will give us more of an idea of what the scale of the Screening problem is (in comparison to the data appending and sharing), and exactly what the RSPCA and BHF have been fined for
  • The Institute of Fundraising is likely to respond properly to these fines when the full report has been released, keep an eye on their Twitter feed or the feed of Dan Fluskey, IoF Head of Policy and Research, who has been working with RiF on this issue. He wrote a great piece in fundraising.co.uk about this issue yesterday
  • The ICO is organising “an educational event in partnership with the Charity Commission and the Fundraising Regulator” (no date for this has been announced, presumably early 2017), keep an eye on their announcements for more information on this
  • The ICO will also present an in-depth report in regards to charity fundraising practices to Parliament in 2017; based on the negative stance the ICO has taken on fundraising practices, this has the potential to be damaging and as a sector we need to be ready to respond to this

As ever, if anyone has any questions on this please do not hesitate to contact me at nicolaw@factary.com.

We would also like to take this opportunity to thank many of our colleagues and friends from the sector who have contacted us with messages of support in the past 48 hours – we really appreciate it!


Annus Horribilis

2016 has been my personal annus horribilis, at least in the public domain. (Privately, I’m fine thanks.)

It has been the year when two of my working-life projects have fallen apart.

First, my life as a European was cut off at a stroke by England’s vote for Brexit.

And then as an early Christmas present, the Information Commissioner decided that more or less everything that I had dedicated my working life to doing – understanding philanthropists so that charities could work better with them – was illegal, immoral and subject to multi-thousand pound fines.

The Brexit decision is too political a story for this blog. Suffice it to say that when one choses as a UK citizen to live in another EU country, learn its languages, learn and enjoy its rich cultural traditions, and feel thoroughly welcome as an immigrant, it is physically painful to know that a cabal of alt-right Ministers in Westminster are determined to throw you out.

So let’s focus on the Information Commissioner’s announcement yesterday. We would expect the Commissioner to use cautious language. She does not. She piles right into the topic by claiming that ‘millions of people who give their time and money to benefit good causes will be saddened to learn that their generosity wasn’t enough.’

This is a clear example of evidence-based policy making. The Commissioner has evidence, we assume, that there are ‘millions of people’ who will be saddened that their generosity did not suffice. Given the paucity of information on donors in the UK, it would be so helpful if the Commissioner would share this data with the rest of us.

If the subjects gave their permission, of course.

Given that we are living in an age of austerity in which the ICO’s paymasters in government (of whichever colour) are cutting back on benefits, rights and payments, I would be utterly astonished if there were even ten donors, let alone millions, who would feel that their generosity was enough. It is never enough. Ask any of the homeless people in London if it is enough. Or the 960,000 people living in poverty in Scotland.

The Commissioner then applies the same broad brush approach to what she describes as ‘wealth screening.’ The language is purposefully vague and catches within its apparent scope almost all customer-focused, relationship-building, fundraising. It appears, on one reading of the statement, that it is somehow wrong to use information including ‘supporters’ names and addresses, dates of birth and the value and date of the last donation.’ It appears that to investigate ‘income, property values, lifestyle and even friendship circles,’ may be illegal, along with the ability to model ‘donors most likely to leave money in their wills.’

Adrian Beney has pointed out in an excellent blog that this is to do not with information or privacy, but our attitudes to money.

For me, it’s an Edwardian view of ‘charity.’ It’s a penny in an old man’s hat. Thanks guv’nor. Lord bless your little ones. It is about a one-way relationship, donor to ‘charity.’

There is a load of evidence (yes, actual evidence Commissioner) that this is not how donors want to relate to ‘charities’ (or, as we now call them, non-profits, or Social Purpose Organisations.)

Here is just one of dozens of research reports I could cite; ‘Donors respond to personalised communications from charities that they have a relationship with, and prompts from family, friends or colleagues.’ (source, Bagwell, Sally, Lucy de las Casas, Matt van Poortvliet, and Robb Abercrombie. ‘Money for Good UK: Understanding Donor Motivation and Behaviour’. London: New Philanthropy Capital, March 2013. http://www.thinknpc.org/publications/money-for-good-uk/., page 3).

And yet the Commissioner rails against non-profits that identify ‘friendship circles.’

The Commissioner has, either purposely or unwittingly, threatened the development of high-value philanthropy in the UK. By using this broad language, by focusing on an evidently outdated view of ‘charity’, and above all by fining organisations that are trying to build relationships with their supporters based on mutual understanding and knowledge, she has ensured that UK charities will step back, return to the door-knock and the ‘appeal’, never knowing (because the ICO bans such research) who is behind the door or receiving the letter.

This lack of research will drive a wrecking-ball through relationships between high-value philanthropists and non-profits. It is not coincidental that so many people of wealth are now establishing their own foundations; it is already hard enough to persuade them that they should build a relationship with an existing non-profit.

Thanks to the ICO, that job just become harder.

 

Chris Carnie is the author of ‘How Philanthropy is Changing in Europe‘, to be published by Policy Press in January 2017.