Also in respect of consent I would consider whether the "consent" was likely to
be fully informed and freely given. The agreement should answer the fully
informed question, but could consent be freely given in this context?
Chris
Ian Mansbach <[log in to unmask]> on 31/05/2004 14:33:54
Please respond to Ian Mansbach <[log in to unmask]>
To: [log in to unmask]
cc: (bcc: Christopher Spray/Group Compliance/South East/RAC Motoring
Services)
Subject: Re: [data-protection] S35(2)
Doreen
No, you don't have to disclose under s 35(2) of the DPA. It seems to be a
popular misconception (or otherwise a common "try on") to demand/request
information "under s 35(2) of the DPA". But there is nothing in that section
which compels you to disclose anything to anyone. All s 35 does is remove
the requirement not to disclose personal data when one of the conditions is
met, in this case apparently, when disclosure is necessary for the purpose
of intended legal proceedings. Provided the landlord can satisfy you that
disclosure is for that purpose, and that it is necessary, then you are not
constrained by the DPA provisions requiring you not to disclose. Of course,
you would have to consider very carefully what it is that might satisfy you
on these two counts: a letter from their solicitors may be enough; better
still a court order.
Quite separately from the s 35(2) issue is that the landlords say they have
(contained within the tenancy agreement) the data subjects' consent for you
to disclose their new addresses. If that is true (and I suggest you might
want to see a copy of the entire tenancy agreement before contemplating that
consent to disclose is in fact what they have), then there is still nothing
to compel you to disclose. Consent to disclose (even if expressed in the
tenancy agreement to which the Council is not a party) isn't the same thing
as a request from the data subjects to do so. And so you still don't have to
disclose. Even if expressed in terms of a request by the data subjects to
disclose, I suspect there is still nothing to compel you to provide the
information to the landlords.
In all of this you might also want to consider any obligation of
confidentiality and whether any consent releases you from that obligation. I
don't know what the obligations are on local authorities but other revenue
collecting authorities such as the Inland Revenue are bound to keep
taxpayer's information confidential and are reluctant to disclose anything
to third parties without either a court order or a precisely-specified
explicit authority from the taxpayer.
The lawyers on the list may have a view on the landlords' threat to claim
compensation from the Council (presumably if you don't disclose the
requested information), but it sounds a rather hollow threat to me. Another
try-on perhaps!
So far as s 35(2) is concerned (and pretty much everything else in your
scenario), you don't need to disclose.
Ian Mansbach
Mansbachs
Data Protection Practitioners
[log in to unmask]
phone: 0871 716 5060
international: +44 (871) 716 5060
-----Original Message-----
From: This list is for those interested in Data Protection issues
[mailto:[log in to unmask]] On Behalf Of Broom, Doreen
Sent: 31 May 2004 12:19
To: [log in to unmask]
Subject: [data-protection] S35(2)
***** THIS EMAIL WAS SENT VIA THE INTERNET *****
Help..............
I am being requested for an address from our Council Tax records of two
individuals by a company of residential & commercial landlords as they are
owed monies by these individuals and they say that the individuals have
signed a Tenancy Agreement allowing us as Council Tax authority to disclose
that info. They are now making a request under S35(2) of the DP Act and may
look to us for compensation. The commercial landlords apparently have a
signed agreement by the individuals to say that our Council can disclose
from Council Tax records their future address. We were not party to this
agreement. Do we have to disclose? I presume they wish their address/es
for the purpose of commencing legal proceedings but I am not sure CT
legislation lets me disclose anyway as you cannot disclose to utilities etc.
but by using S35(2) - as you can see, I am in a bit of a
quandary............. D Doreen Broom Access to Information Officer Scottish
Borders Council
Tel: 01835 825041
Fax: 01835 826516
********************************************************************
* This email is privileged, confidential and subject to copyright. *
* Any unauthorised use or disclosure of its content is prohibited. *
* The views expressed in this communication may not necessarily *
* be the views held by Scottish Borders Council. *
********************************************************************
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
All archives of messages are stored permanently and are
available to the world wide web community at large at
http://www.jiscmail.ac.uk/lists/data-protection.html
If you wish to leave this list please send the command
leave data-protection to [log in to unmask]
All user commands can be found at : -
http://www.jiscmail.ac.uk/help/commandref.htm
(all commands go to [log in to unmask] not the list please)
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
All archives of messages are stored permanently and are
available to the world wide web community at large at
http://www.jiscmail.ac.uk/lists/data-protection.html
If you wish to leave this list please send the command
leave data-protection to [log in to unmask]
All user commands can be found at : -
http://www.jiscmail.ac.uk/help/commandref.htm
(all commands go to [log in to unmask] not the list please)
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
http://www.rac.co.uk
http://www.racbusiness.co.uk
http://www.bsm.co.uk
Any opinions expressed in this e-mail are those of the individual and not
necessarily the company. This e-mail and any attachments are confidential to RAC
and/or BSM and are solely for use by the intended recipient.
If you are not the intended recipient you must not disclose, copy or distribute
its contents to any other person nor use its contents in any way.
If you have received this e-mail in error please forward a copy of this e-mail
to "[log in to unmask]".
RAC Motoring Services: Registered England 1424399
VAT Reg No. GB 238640945
British School of Motoring: Registered England 291902
VAT Reg No. GB 239505847
Registered Office(s): 1 Forest Road, Feltham, TW 13 7RR
This e-mail and any attachments has been scanned for the presence of computer
viruses. RAC/BSM accept no responsibility for computer viruses once this e-mail
has been transmitted.
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
All archives of messages are stored permanently and are
available to the world wide web community at large at
http://www.jiscmail.ac.uk/lists/data-protection.html
If you wish to leave this list please send the command
leave data-protection to [log in to unmask]
All user commands can be found at : -
http://www.jiscmail.ac.uk/help/commandref.htm
(all commands go to [log in to unmask] not the list please)
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
|
