Unless there is a crucial bit I have missed, the Data Protection Act does
not require Data Controllers to inform Data Subjects about which exemptions
they have used. In what way is it incorrect to advise people that this is
the case? The IC's staff, in my experience, tell you what the Act says.
Anything more than that is good practice and rightly or wrongly, they don't
go in for that. It's not incorrect, it just might seem undesirable. Most of
them won't tell you what you should do, only what you have to do. In any
given individual case, it might be right to tip the requester off about the
type of information you've withheld, and equally it might be right to tell
them the absolute minimum. And it's the DP officer on the ground who should
do that, having had their parameters set by the Act (first and foremost) and
then by the regulator.
Tim Turner
Wigan Council
> ----------
> From: Carter, Antoinette
> (CCM)[SMTP:[log in to unmask]]
> Reply To: Carter, Antoinette (CCM)
> Sent: 10 August 2004 12:31
> To: [log in to unmask]
> Subject: Re: [data-protection] Non Disclosures to Data Subjects - not
> advising them
>
> 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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