I completely agree with you; being kept in the dark as to what
information has been withheld from the data subject gives the Data
Controller carte blanche to do precisely what they want with no form of
redress.
But I don't think it is the DP Act at fault, it's the ICO's inability
(or unwillingness?) to apply the law correctly that is the problem. Is
it any wonder the EU are investigating us.
-----Original Message-----
From: This list is for those interested in Data Protection issues
[mailto:[log in to unmask]] On Behalf Of Arthur Howell
Sent: 10 August 2004 12:09
To: [log in to unmask]
Subject: [data-protection] Non Disclosures to Data Subjects - not
advising them
This may be of interest.
The original question to the IC Office was:-
I recently telephoned to get clarification on whether we should advise
the Data Subject that we are not disclosing certain confidential
information, I was advised that we need not inform the Data Subject, I
am somewhat disturbed by this advice.
If the information pertains to an investigation (crime and taxation ,
distress may be caused etc) and there is an exemption and we need not
advise, then there is no issue however, if it is a duty to
confidentiality only I believe the Data Subject has a right to be
informed that we are not disclosing for that reason (they can then
challenge that decision through the courts etc).
If we do not inform the Data Subject that we are withholding information
then this goes against the very reason for the Act in that he/she has a
right to know whether we hold information and if so a copy unless we
cannot disclose (Fairly and Lawfully?).
I would like a definitive statement as to whether we should always
advise the Data Subject that we are not disclosing unless an exemption
applies.
of the Act.
The reply from the IC Office is:-
________________________________________________________________
I can confirm that the information provided to you by the Helpline is
correct. When responding to a subject access request, the data
controller is required to do various things however there is no
requirement that the individual concerned be told of any exemptions that
have been applied or about information that has been withheld.
The Act merely requires that data controllers supply individuals with
access (usually copies) of all that personal data that the Act requires
to be provided in response to the request.
There is no legal requirement to advise individuals if or why any
information has not been supplied in response to a subject access
request however there is also no bar on this being provided on a
voluntary basis - this is entirely up to the data controller to decide.
As you say there are circumstances (eg s29) where it may not be sensible
to provide such information. Ultimately it is for the data controller to
take a view on this voluntary action.
______________________________________________________________
My faith in the DP Act is diminishing.
Arthur
Bath & North East Somerset Council
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