As I understand it (from the entries in the "Encyclopaedia of Data
Protection" that act as my desk's book ends) the exemption only applies
to DSARs. Presumably if a data controller was playing by the book, they
would need to declare that they were applying this exemption to the
requestor, at which point, one assumes that the data subject would
approach the local constabulary, who would be able to demand the
information under Section 35.
Maybe that would explain why no-one bothers to make use of the
exemption, because all it would mean in practice is an admission to the
Police that there was something for them to investigate on the data
subject's behalf. Maybe the exemption exists to prevent "vigilante"
data subjects taking their revenge on low-down dirty data controllers,
who have done 'em wrong. (I feel a screenplay coming on......)
-----Original Message-----
From: This list is for those interested in Data Protection issues
[mailto:[log in to unmask]] On Behalf Of Ian Welton
Sent: 05 August 2004 12:00
To: [log in to unmask]
Subject: [data-protection] Bemused - Assistance requested
DPA 1998, Schedule 7, para 11(1) & 11(2) cover the long established
legal
concept of self-incrimination and provide the exemption from SAR for
information which may reveal any offence.
Having categorically given this paragraph a thorough and vigorous test
during the last two years I am somewhat bemused that not once has it
been
used to take me to task.
As puzzling is:-
+ No relevant case that I am aware of has quoted this paragraph,
although
some explicitly refer to the DPA and evidential matters;
+ Organisations appear to resist SAR requests where they feel vulnerable
to
DPA offences, seemingly totally missing the possible DPA defence
provided by
this section.
Looking at this from an individual perspective:
+ Organisational DPO's could either not be aware of that schedule entry
due
to a lack of training, or be in such a position they are unable to
advise
their organisation effectively, or be fully cognisant of all the issues
involved in this point, and taking advantage of that paragraph so few
problems come to light by that route;
+ s.7 requestors could be being placated by open disclosure and not
moving
to legal action;
+ The IC - Could possibly not be very interested in promoting an area
which
could effectively neuter many of the actions they may take.
+ The courts stance that they should determine the legitimacy of
evidence,
rather than have the political sphere interfering in justice, could have
undermined the perceived rigour of that part of the act.
+ The interests involved in pursuing various matters could see little
benefit in a wide awareness of this section, and so may use a whispers
in
the night type of technique, as a method of suppression or gaining some
access to material which they may not otherwise get without greater
expense.
+ I could have completely misinterpreted the meaning and scope of that
section.
+ People may have originally perceived my cause or just been kind in not
taking me to task
I would be grateful for any views which may clarify my understanding of
this
paragraph of the DPA 1998.
As many will be aware my interest is, and remains, privacy based, as
such I
perceive this as one facet of a greater whole.
Ian W
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