If legislation is enacted that creates a legal basis for municipalities to direct and share data between the domains of government, social services, care, youth, education, housing corporations, aliens, security, enforcement and private parties, this will create a society with totalitarian traits. The solution is to keep the roles of civil servant and social worker separate in the "broad view," early signaling, and leaving the prevention and integrated approach with the social worker.
The Minister of the Interior and Kingdom Relations Kajsa Ollongren has announced that she will address the bottlenecks related to the "multiple problems. One of those bottlenecks is data sharing in the social domain. According to the minister, legislation is needed that creates a legal basis to share data between the domains of administration, assistance, care, youth, education, housing corporations, aliens, security, enforcement and private parties.(1)
The proposal gives a prominent role to the municipality: 'the college should be able to explore whether there are coherent problems in multiple domains. The college must then be able to process the data needed to organize and, if necessary, coordinate the integrated approach.'
But if this minister's plan becomes a reality, a new, major bottleneck arises: for a civil servant is not an aid worker, and it should remain so. I have addressed it here before (2)
When tasks were transferred from the social domain to the municipality five years ago, no distinction was made between the role of the civil servant and the role of the social worker.
Partly because of this and inaccessible legislation such as the Wmo 2015, the implementation of tasks in the social domain has developed very differently in the Netherlands. Many municipalities have taken on the implementation tasks, social workers have been employed, sometimes all requests for help come in through a municipal counter so that a registration is created there, or the municipality manages the youth aid files. Neighborhood teams have been formed where the municipality, housing association, social services, health care and sometimes the neighborhood police work together. A proliferation of partnerships has arisen in the form of joint arrangements, foundations, limited liability companies or corporations. Everyone wonders who is allowed to exchange data with whom in order to fulfill the task of integral working. Legislation offers no guidance and the ministry no help.
There are indeed bottlenecks and dilemmas experienced by all parties involved in the social domain. The minister lists these: "A recurring issue is the regulation of data exchange between parties. This emerges, for example, in the approach to vulnerable persons (including persons with confused behavior), the broad debt approach and the approach to vulnerable young people with a distance to the labor market. The Change Task Integration also has the integrated approach as its starting point."
The bill to address multiple problems cannot be separated from other legislative initiatives that seek to solve social problems by sharing data from different files.
In the context of tackling "undermining," there is a desire to broaden the powers of the municipality, especially those of the mayor, and to allow for more intensive data exchange. The Council of State has published an opinion on this.(3) The request for an opinion followed a call by mayors for more powers within their function to combat undermining of public administration. Privacy laws, in particular, would currently stand in the way of an effective approach.
The Council of State argues that broadening the mayor's powers is not an appropriate response to this issue. It could lead to role blurring in relation to the police and judiciary. "Because of the comprehensiveness of the undermining problem, the emphasis should be on good cooperation between the mayor, the police and the public prosecutor's office, making optimal use of the (current CE) powers of all agencies," the Council of State states. It notes that it has not yet been sufficiently demonstrated whether new legislation for adequate intra-municipal data exchange is needed.
The RvS reminds municipalities and mayors of the importance of legal expertise on data protection within municipalities. Professional data processing requires legal expertise and a proper embedding of data protection knowledge within the municipal organization.
Another initiative for more intensive data exchange is found in a proposal to amend the "Municipal Debt Relief Act for the purpose of exchanging personal data" between private and public parties including landlords, health insurers and energy companies. The proposal is to facilitate the exchange of personal data for early detection of debts. This proposal includes far-reaching powers and a directive role for the municipalities.(3) There is also a desire for a more intensive exchange of data between a large number of parties including again the municipalities when dealing with healthcare fraud.(4)
The assignment given to municipalities in 2014 in the policy vision "Careful and Aware" to work integrally and case-oriented from the principle of "one family, one plan, one director," was interpreted in many regions as a legitimization to collect personal information about people on a large scale and use it for other purposes.
Many municipalities are convinced that they should be allowed to use social domain information without question in imaging fraud, undermining and for profiling.
I still come across contracts between municipalities and social work organizations that state that the municipality is authorized to request all client data. That a municipality requests names and addresses of clients from organizations, combines these with data from its own files to conduct a satisfaction survey or for 'monitoring' or to get a picture of the most 'vulnerable' citizens. Assistance, supervision and enforcement are closely intertwined. Function creep is practice there.(5)
Further use of the special sensitive data from the social domain, for other purposes in other domains, is prohibited in the current legal regime.(6) The professional's duty of confidentiality also prevents this.
Data exchange as the Minister now envisions (prescribe by law, where at the same time a duty of secrecy applies) attacks the integrity of the professional and the fundamental right to privacy at its root. Moreover, this puts at risk the public interest behind professional secrecy. That is that everyone should be able to count on confidentiality of the information held by a professional, which guarantees free access to care for all.
What problem are they looking for a solution to? The minister's letter refers to 'hesitation to act'. The more complex the problem is and the more parties from different domains such as social support, work and income, health care and security have to find an appropriate approach together, the more 'hesitation to act' there is, says the minister.
Thus, the need for new legislation to solve the multiple problems seems to be dictated by the impotence experienced by implementation practices. Then that is where the solution should be sought.
A public servant is not a social worker. The relationship between government and citizen is of a substantially different nature than the relationship of social services with a client.
The relationship between the government and citizens is a 'compulsory' one (just try becoming a German citizen for six months); the civil servant is primarily loyal to the law (think of the refusal civil servant who is not allowed to refuse a same-sex marriage on the grounds of his or her own conviction); the civil servant derives his or her powers from the law and is thereby bound by the general principles of proper administration; the civil servant has a duty of confidentiality but also, in a number of situations, a duty of disclosure and is sometimes authorized to process personal data without the citizen's consent (for example, when registering in the Basic Registration of Persons). And in many situations the citizen has a duty to provide information, for example if he wants a benefit.
This particular relationship implies that citizen consent cannot be a legitimate basis for sharing data because in this relationship consent is not freely given.(8)
The social worker, on the other hand, basically has a free, not obligatory, relationship with the client. His loyalty lies primarily with the client (not the law) and the social worker is subject to professional codes of conduct and disciplinary law. He has a duty of silence and, in some situations, a "right to speak," that is, the authority to make his own assessment in the event of an emergency and, if necessary, to break the duty of confidentiality.
If the minister wants to place powers, direction and data exchange in the hands of the municipality, these incompatible roles are merged. Practice shows where that leads.(9)
The Personal Data Authority has also expressed concisely on a number of occasions that limits are being exceeded: "municipalities do not have a clear picture of what data they are allowed to process in the social domain." (10)
The "broad view" and the "integrated cross-domain approach" envisioned by the minister does not fit the role of the municipality as a government body. This task belongs with the social services.
The way the tasks are currently organized can be revised. For example, it should not be the municipality that takes the lead in dealing with multiple problems, but the aid agency, possibly a specially designated organization. This suits their role and competence. Social workers may "look broadly," identify early and focus on prevention and come to an integrated approach together with the client. Social workers may share data with the client's consent (as a legitimate basis) if this is necessary for an integrated cross-domain approach. They are equipped to manage multiple problems. Current legislation provides for this.(11)
Adequate working with privacy-sensitive data should become a part of professional training so that parties are better aware of their powers and current opportunities to share data. There is already an opportunity for all professional groups to share information in distressing cases. This could be clearly written out and highlighted.(12)
The nature and scope of the data that rotate in the social domain and the nature of the government-citizen relationship thus entails that the government should be very cautious in collecting information about citizens. A certain distance is a safeguard to maintain trust in government.
Legislation is needed to create safeguards that protect the privacy of citizens, to legitimize and limit the actions of the municipality, to formalize powers, to distinguish the roles of facilitator and implementer, to set limits, and thus to prevent unnecessary data processing.
Given the various initiatives to intensify data sharing, extra alertness is in order. Multiple problems involve the most vulnerable people in our society. Precisely this group should be protected by law.
There must be enough privacy left to protect. Because if legislation is enacted that creates a legal basis for sharing data between the domains of government, social services, care, youth, education, housing associations, aliens, security, enforcement and private parties, it will create a society similar to the plans of Chinese President Xi Jinping: such a law will lead to far-reaching data collection and thus the concentration of power and control possibilities of one party: the government.(13)
On March 19, the bill to address multiple problems in the social domain was published for consultation. Until May 14, anyone can respond to this proposal.(14)
(This is an abridged version of the article "Government should safeguard privacy, not erode it," Corrie Ebbers, NJB 2020 No. 6)
(1) https://www.rijksoverheid.nl/documenten/kamerstukken/2019/09/27/kamerbrief-over-gegevensuitwisseling-en-privacy-meervoudige-problematiek
(2) https://www.sociaalweb.nl/blogs/de-klikplicht-van-de-ambtenaar-de-zwijgplicht-van-de-hulpverlene
(3) Information on the role of municipalities in the administrative and integrated approach to undermining, Opinion of the Advisory Division of the Council of State dated March 20, 2019, Appendix to Parliamentary Papers II 2018/19, 29911, 223.
(4) Bill to amend the Municipal Debt Relief Act for the purpose of exchanging personal data, Parliamentary Papers II 2019/20, 35316.
(5) Parliamentary Papers II 2019/20, 28828, 114.
(6) The risks of function creep in data processing systems have previously been described in the "WRR Report No. 86 'iOverheid', March 15, 2011."
(7) Art. 9 paragraph 1 AVG and Art. 22 paragraph 1 AVG Implementation Act, Stb. 2018, 144.
(8) Recital 43 General Data Protection Regulation (AVG), Regulation (EU) 201/679. Similarly, the Personal Data Authority, 'Research report Processing personal data in the social domain: the role of consent', April 2016.
(9) http://magazines.sociaalweb.nl/priva-cy#!/zorgen-om-de-zorg and www.nationaleombudsman.nl/system/files/rap- port/20180048%20%20R%20%20201719253%20%2005-07-2018.pdf.
(10) Press releases AP: 'Municipalities careless in elaborating privacy rules social domain', April 19, 2016 and 'Municipalities collect too much personal data when implementing Wmo and Youth Act', February 15, 2018.
(11) Art. 30 paragraph 5 AVG Implementation Act.
(12) Bemoeizorg GGD, Verwijsindex risico-jongeren, meldcode huiselijk geweld, samenwerking bij schulden, 'vital interest', 'conflict of duties' etc.
(13) www.vpro.nl/programmas/door-het-hart-van-china/kijk/afleveringen/door-het-hart-van-china-7.html.
(14) https://www.internetconsultatie.nl/meervoudigeproblematiek
On October 29, November 5 and November 12, Corrie Ebbers will give the three-day training course Privacy in the social domain. She also wrote the book Privacy in the social domain together with Paulien Bunt, Sophie Vastenhout and Micha Venderbos.
