Sales of the Edited Register

Ballot iStock 000006080605XSmall 146x219Councils have recently come under fire for sales of the edited electoral register. Emma Godding looks at the key issues for electoral registration officers and local government lawyers.

The last week has seen a flurry of articles in both local and national press criticising the way in which local authorities sell the edited electoral register to a range of private companies for a charge, some taking a view on privacy issues and others concentrating on the fees being charged for this information.

This sudden media interest appears to be as a result of local authorities' responses to freedom of information requests regarding their sales of the edited register, and it may serve to refocus local authority lawyers' minds on the position that electoral registration officers should adopt in relation to such sales.

The increased media interest comes as local authorities are making preparations for the transition to the new 'individual electoral registration' regime, which takes place in summer 2014 and is intended to provide individuals who are registered to vote with control over their registration.

Full and Edited Registers – explanation

There are two versions of the electoral register: The full register is used only for elections, preventing and detecting crime and checking applications for credit. The edited register is available for sale and can be used for commercial activities such as marketing. Voters can choose whether they want their details to be included on the edited register when they register to vote.

Supply and sale of the full register is limited: it is supplied to a prescribed list of organisations and can only be sold in certain circumstances, for instance to credit reference agencies.

However, the edited register can be sold by authorities to anyone who requests it; in fact the legislation governing sale states that election registration officer 'shall' supply a copy of the edited register to any person upon payment of the prescribed fee.

Authorities can only charge the fee set out in Regulation 110(2) of the Representation of People (England and Wales) Regulations 2001 for sales of the edited register – this is currently £20 plus £1.50 for every 1,000 entries for a data version, and £10 plus £5 for every 1,000 entries for a printed version. Given the level of the prescribed fees it seems rather unlikely that local authorities will be relying on these sales as a revenue stream.

Electoral Commission guidance

In its existing guidance 'Managing electoral registration in Great Britain for electoral registration officers', the Electoral Commission "recommends" that electoral registration officers keep a record of all sales of both the full and edited register. Their guidance states that the revenue gained and the number of registers sold should be open to public scrutiny.

Although this guidance says that the edited register can be sold to "anyone", it also advises that "in all matters of requests for data, the Electoral Registration Officer should consider the extent to which it is appropriate to release personal data, bearing in mind the provisions of the Data Protection Act 1998". Although with the edited register it does not seem that authorities have much choice but to sell it to whoever asks.

Opt in / out

At present and in accordance with the existing guidance, electors have to tick a box on the annual canvass form saying if they don't want their details to appear on the edited register. Following a spate of FOI requests revealing the types of companies to which authorities have sold the edited register, there has been some media speculation about possible pressure on the Electoral Commission to change its views on the approach to electors' choice on the edited register.

Pressure groups are calling for changes to the guidance on the opt out system and for more onus to be placed on informing electors about the way in which the edited register can be sold. Elections officers have been concerned with this issue for quite some time, and it seems that authorities receive numerous FOI requests about the format of the annual canvass forms, particularly in respect of 'pre-ticking' the opt out box for electors who had previously ticked it.

The existing guidance states that: "It is the Commission's view that to pre-print annual canvass forms with the elector's previous choice regarding opting out of their details appearing on the edited register by including a tick in the opt out box would be a significant departure from the prescribed form and would change the effect of the form. It is the fact that this part of the form requires the elector to make a decision that makes this difference in substance to the principle of pre-printing names, addresses and nationality…. The opt out box should therefore remain blank in order for the elector, or the house-holder to make a decision each year."

The transition to Individual Electoral Registration

However, as authorities will be aware, the transition to 'individual electoral registration' in summer 2014, a system which will see electors being able to register themselves to vote online, brings a raft of new guidance from the Electoral Commission, including guidance on the issue of pre-ticking opt out boxes in relation to the edited register.

The Electoral Commission's new guidance, 'Individual Electoral Registration Guidance', is the first of a number of guidance documents to be produced by the Electoral Commission; the rest is expected to be available later this month.

In the new guidance for Electoral Registration Officers (EROs), the Electoral Commission takes the same basic position for the 2013 canvass as in the existing guidance: that the opt out box for the edited register should not be pre-ticked.

Interestingly however, the new guidance goes on further to state that, "… under data protection legislation, electors have the right to require [EROs] to exclude them from the edited register on a permanent basis (or until further notice). This is because section 11 of the Data Protection Act 1998 (DPA) gives individuals a right to issue a notice to data controllers requiring them to cease (or not begin) processing their data for the purposes of direct marketing. When conducting the annual canvass and maintaining the electoral registers, EROs act as 'data controllers'." The new guidance goes on to state that when such a notice has been received, the opt-out tick box should be pre-ticked on the canvass form.

The new guidance further states that EROs "..cannot make the assumption that the elector has made a request under section 11 of the DPA simply because they have ticked the opt out box on a continuous basis for a number of years". The new guidance goes on to explain how election registration officers should respond to complaints from individuals that their form has not been pre-ticked despite them having opted out of their details being placed on the edited register for several years. The Commission advises officers to explain that current electoral legislation does not allow them to pre-tick opt out boxes despite it having been ticked in the past.

Whilst the press have taken a particular interest in sales of the edited register during the last week, the reality is that authorities have been selling the edited register in accordance with legislation and guidance for some years. Although in the future individuals will be able to request that they are excluded from the edited register permanently, the likelihood is that many voters opposed to their details being sold will be unaware of this right.

Emma Godding is a Solicitor and Information Lawyer at Bevan Brittan LLP. She can be contacted on 0870 194 8998 or by This email address is being protected from spambots. You need JavaScript enabled to view it..