Dear All
I have finally received information from NFER on the question of disclosure
by LEAS for the research they are doing.
There is NO legislation that councils (and presumably schools too) can rely
on to disclose without consent. It is therefore up to councils to ensure
they meet the requirements of the DPA98 before making any disclosure.
The letter suggests that the First Principle is met if the parents are
informed of the data controller's identity, the purposes for processing
(remember processing includes disclosures) and any further information to
make the processing fair.
For Sched2, the letter suggests that condition 6(1) is sufficient in that it
is in the legitimate interests of the LEA and does not infringe the rights,
freedoms and interests of the data subject.
The letter suggests using the "research in the public interest" condition of
Sched3.
To be fair, the letter does conclude that DPA conditions are only met if the
controller informs the parents of all the relevant details including
"sufficient detail of the nature of the research that the parents would not
be surprised at the sort of information disclosed."
The code of practice attached to the letter includes a reference to the DPA84
(!!) which, as you probably remember, required only that they be "fair" to
the data supplier (LEA or school) whereas the new law requires fairness to
the data subject.
As the data controller is the council or the school disclosing, not the NFER,
it is up to them to ensure they meet the requirements of the DPA. The NFER
will not be held responsible if a parent does object after the event, the
council (or school) will.
In my humble opinion I think consent is needed.
Ian Buckland
MD
Keep IT Legal Ltd
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