Ian,

Even Mrs France in her covering letter said that the advice given last
year was "...not binding...." on authorities. This is not to say it was
advisable to go against her - on receipt of the advice we followed it.
However, new advice has come along not simply disagreeing with the
previous, but identifying a flaw in the argument and going on to look at
"...what parliament intended...." and giving a view that local authorities
have the required 'vires'.

I don't know - yet - nor have I addressed in any posting to date HOW we
ensure compliance with the first principle. I do agree, and have said,  it
should, nay MUST be complied with - as must principles 2 to 8. All I have
tried to make clear is that the first 'hurdle', that of 'vires' as introduced by
ODPC last year and thought to be insurmountable, is - in my opinion - no
longer a problem.

Whilst thinking about 'what the intention was', the argument turns on your
assertion of the two alternatives. The way you put it, "was it to let
councils use C Tax info as they wish" or "prevent the Secretary of State
imposing regulations that would infringe the rights of individual privacy" -
looks very different when expressed "was it to let councils use C Tax
information wisely to better perform their statutory (and related) duties"
or "position Chinese walls so that one part of the council doesn't know
what another part is doing - to the detriment of service users, not to
mention all common sense".

Yes mine may seem extreme from your point of view (it is, deliberately
overstressed to make the point), but so is yours from my point of view -
beauty is, as they say, in the eye of the beholder!! 

Dave U


>>> <[log in to unmask]> 31/October/2000 01:51pm >>>
In a message dated 31/10/2000 12:18:10 GMT Standard Time, 
[log in to unmask] writes:

<< No, the new advice does identify a vires!!
 
 I, too, spoke to ODPC when I received the new advice. They, as you
 confirm, refuse to change their 'opinion' or go back to their counsel for a
 revised view as they say they paid for advice, received it, and see no
 reason to spend further (?'public') money on the subject. I suggested
that
 even if they didn't want to go back and get their solicitor's views on the
 new advice, they should at least stop issuing their 'old' advice. We are
 not talking a difference of opinion between two solicitors that can only
 be resolved in court, here.  The original advice is flawed on a point  of
 fact!
 
 They declined, and will continue to issue / refer to their original advice.
 
 As regards first principle, this is why I added the "...VERY BIG note of
 caution...." that I did.
 
 At the end of the day, it is for individual councils and their legal depts to
 say what, if any, reference to C Tax data they will permit other depts.
 The lawfulness of such action is what will, taken to the furthest
extreme,
 will be determined in court. I, in no way, advocate the wholesale
opening
 up to every corner every piece of info held. I merely suggest that
careful,
 informed, proper sharing of minimum data for certain purposes is not, in
 the first place, ultra vires, and could at least be defended hopefully
 without resort to the courts. >>
--------------------------------------------------
Dave

I'm glad you are strong enough to put in writing the advice that another
DPO 
has been giving verbally without the guts to put in writing what he
believes. 
 The advice from his QC, as I understand it, runs to around 40 pages and
is 
in the usual legalistic jargon containing the usual caveats.  

Flawed in "fact"?  I don't think so, and I don't agree with your analysis 
that it contains the vires.  I read paragraph 17 this way - Subsection 1
says 
that the Secretary of State may make regulations in respect of the further

use of this data, but subsections 2 & 3 go on to say that he cannot make
such 
regulations in respect of information that identifies the individual - i.e. 
personal data.  In other words, even if the Sec of State wanted to make 
regulations for the further use of personal data, he would not be allowed
to. 
 How's that for an equally valid interpretation of Para 17 of Schedule 2, 
LGFA 1992?  

In many court cases (and I'm sure it will take one to sort this out) they 
look back at Hansard to see what the intention was in respect of the 
particular section - was it to allow councils to use CT data as they wish,
or 
was it to prevent the Secretary of State imposing regulations that would 
infringe the rights of individual privacy?

[If anybody has the time and inclination to look at Hansard, I'm sure we'd 
all appreciate the effort]

Let's assume for one moment that the vires question gets sorted one
day, and 
let's also assume it is found in your favour, how do you propose getting 
consent for these further uses in order to be fair to the data subjects?  
Will you have a form that says at the top "you are required by law to
supply 
this information" then have a series of tick boxes for the other purposes 
making it clear that these further uses are not required by law?

Now I don't for one moment profess to know more than the QC who was
asked for 
his opinion (albeit the opinion was based on a premise that was included
as 
part of that question - and the issue of fairness wasn't posed) I just
wonder 
whether readers are likely to ignore the advice given by the Data
Protection 
Commissioner in her role as the enforcement authority.

I, for one, would not.


Ian B

**********************************************************************
This email and any files transmitted with it are confidential and 
intended solely for the use of the individual or entity to whom they   
are addressed. If you have received this email in error please notify 
the system manager.

This footnote also confirms that this email message has been swept by 
MIMEsweeper for the presence of computer viruses.

www.mimesweeper.com
**********************************************************************


%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%