Most people, Tim, might think that a "senior partner" in a law firm who had behaved in the manner of the solicitor in question in the failure to notify case, had behaved in rather more than "a very silly way." If the IC had contacted a DP Officer on more than 5 occasions in 2 years in an organisation about failure to notify many people would see the persistent failure of the DP Officer to do so as more than very silly. Much of "what we know" is in the IC's Press Release of 7th March and I think that is quite informative.
The point here, as far as I'm concerned, goes to your remarks on enforcement and choices about enforcement which seem a bit ivory tower to me. You suggest that the IC's enforcement policy is "haphazard" which which means random or careless. That clearly, for me at least, isn't true. Quite rightly (I think anyway in the view of the average person) the Office targets those who are recalcitrant offenders, who fail to respond to the graduated procedures under the Act, and/or who should know better etc. (no doubt the IC has other enforcement criteria as well - indeed the Enforcement Statement and Enforcement Strategy seem to suggest that they do). Therefore, the enforcement or prosecution policy is not haphazard but probably sensible and measured taking into account the circumstances of a particular case and the constraints under which the IC's Office operates. People can agree/disagree with the basis of the policy or its priorities but the enforcement policy is not haphazard. What you don't seem to like is the way that the IC is exercising the very discretion that you appear to want to give - but only if it actually coincides with your view.
Neither do I think that the use of your "extreme" example of your sexual offences scenario particularly informs this discussion. Failure to notify as a DP controller can hardly be compared to child sexual offences and it doesn't help to do so. As a general principle in law, extreme situations or very hard facts, rarely make for "good" law anyway. What is "good" or "bad" law anyway is a discussion that could fill books - and has.
Laurence
Laurence W. Bebbington
Team Leader (Law)/IS Copyright Officer
Hallward Library
Information Services
The University of Nottingham
University Park
Nottingham
NG7 2RD
Tel: 0115 95 14568
>>> Tim Trent <[log in to unmask]> 21/03/05 13:24:16 >>>
Imperfect assumption, Ed. I said below: "Enforce it, certainly with good
use of discretion, and publicly attributable discretion when necessary".
Nowhere have I said "rigidly".
-----Original Message-----
From: Ed Smith [mailto:[log in to unmask]]
Sent: 21 March 2005 13:03
To: [log in to unmask]
Subject: Re: [data-protection] Interview notes
So, on this basis we scrap all law that is not "properly", I assume this
means rigidly, enforced - for example not enough people to enforce it -
because it is bad law? Not much hope for the Criminal code then, but hey we
won't have any "bad" laws. Sorry. I know its not Friday yet, but ...
Ed
>>> Tim Trent <[log in to unmask]> 21/03/2005 12:20:00
>>>
My contention is that bad law is worse than no law at all.
The law that we have, while imperfect, is plenty good enough as law goes.
It is made into bad law by lack of enforcement. And thus one of two things
should happen.
Enforce it, certainly with good use of discretion, and publicly attributable
discretion when necessary
Or
Scrap it.
I do not actually argue that we should scrap it. I argue that it is being
enforced so badly that it is currently tending towards being worthless.
We, here, are "the good guys". We work hard for our organisations and for
our clients to ensure that the law of the land is upheld and that good
ethics produce good trading conditions. Watching less well prepared
organisations drive a coach and horses through the law sickens me.
I run regular DP training courses. "Who in the audience knows if their
organisation has a Privacy Officer?" I often ask. I get blank looks.
"Who
knows what to do when they get a privacy question?" Blank looks.
"Who
knows whom to ask?" Blank looks. But you can bet your life that their
employers nave made their notifications.
The blank looks? Usually three quarters of the audience, even in 2005.
-----Original Message-----
From: This list is for those interested in Data Protection issues
[mailto:[log in to unmask]] On Behalf Of Lewis, Chris G.
Sent: 21 March 2005 12:10
To: [log in to unmask]
Subject: Re: [data-protection] Interview notes
All fair enough Tim, but the fact remains that it is better to have an IC
who acts against some offenders rather than just scrap the whole thing and
have nothing, which seemed to be your preference.
-----Original Message-----
From: This list is for those interested in Data Protection issues
[mailto:[log in to unmask]] On Behalf Of Tim Trent
Sent: 21 March 2005 12:08
To: [log in to unmask]
Subject: Re: [data-protection] Interview notes
But the authorities have firm evidence against both. And the probability of
a successful prosecution is equally great in both cases.
What now? Both have been caught. Only one is prosecuted. The other is
told how good it is that they have stopped, currently.
The one who stopped abusing was of the Ian Brady/Myra Hyndley class of evil
abuser. The one who is prosecuted happened to do it once, allegedly with
kindness (ok, I know) and was caught in the act.
I am not having a personal argument with you here, Chris. I am simply
developing thinking in the way this group does. But you know that, I think.
-----Original Message-----
From: Lewis, Chris G. [mailto:[log in to unmask]]
Sent: 21 March 2005 11:58
To: Tim Trent; [log in to unmask]
Subject: RE: [data-protection] Interview notes
To use your example, it is better that only one of the paedophiles is caught
than neither.
-----Original Message-----
From: This list is for those interested in Data Protection issues
[mailto:[log in to unmask]] On Behalf Of Tim Trent
Sent: 21 March 2005 11:56
To: [log in to unmask]
Subject: Re: [data-protection] Interview notes
Let us make this more extreme, then
We have the Sexual Offences Act 2003. In part it legislates against sexual
acts with a minor child in a more effectuve manner than prior legislation.
It is clear law, though some lawyers would argue that parts of it are badly
drawn.
Would you accept that a paedophile who has stopped abusing minor children
(and I mean 10 minutes ago though there is excellent evidence to show that
he or she had been doing so during the past hour) should not be prosecuted
but that one who was caught in the act should be?
I am a firm believer in using extreme examples to show what should and
should not be done. They crystalise thought far better than anything else.
And matters sexual are the most extreme one can usually phrase.
My perception is that the UKIC needs to use more extreme examples in his
thinking over who should and who should not be prosectured. I am, as ever,
happy to have this perception corrected
-----Original Message-----
From: This list is for those interested in Data Protection issues
[mailto:[log in to unmask]] On Behalf Of Lewis, Chris G.
Sent: 21 March 2005 11:45
To: [log in to unmask]
Subject: Re: [data-protection] Interview notes
This is certainly true. However, an unevenly applied law is surely better
than no law at all, in this instance.
-----Original Message-----
From: This list is for those interested in Data Protection issues
[mailto:[log in to unmask]] On Behalf Of Tim Trent
Sent: 21 March 2005 11:44
To: [log in to unmask]
Subject: Re: [data-protection] Interview notes
The point you make about even handed and equable application of the law is
also my primary point
The UKIC failed to act against Cahoot with a prima facie breach of the law
"because they had shut the stable door after the horse had bolted".
The UKIC acted against a Rochdale solicitor for the simple offence of
failing to notify. One might make the point that the silly man HAD notified
prior to the court case!
So even handed and equable it was not. Consistent it was not.
Might one suggest it was "soft target, so let's make an example of him?"
If the UKIC is unable or unwilling to prosecute properly then something is
astray, surely, with his handling of his brief
-----Original Message-----
From: Ian Welton [mailto:[log in to unmask]]
Sent: 21 March 2005 11:36
To: 'Tim Trent'; [log in to unmask]
Subject: RE: Interview notes
Tim Trent on Monday, March 21, 2005 at 10:06 AM said:-
> Precisely.
>
> So is it not about time that our regulator started to regulate?
>
> Unenforced law is bad law. While one can argue that enforced laws
are
> by no means all good laws, one can at least see that the law is
being
> upheld.
>
> If the UKIC's office and the UKIC will not enforce and uphold the
law
> then the law should go. There is, of course, an alternative
position
> here. But we have so far had several regulators who seem not to be
> overly concerned with enforcement.
Clearly DP is an area where the regulators have to consider matters
carefully in order to ensure the law is applied equally to all.
Take part V of the Police Act 1997 as an example with similar connotations.
The basic structure of the processes for the CRB are prejudicial against
anybody who moves their residence around the country/world regularly
creating a responsively unfair environment for them where
employment/recruitment/contract requirements make short timescales
necessary. This is because each police force they have resided in is
required to respond with the results of a check. The different response
times between a person who has lived in one area and one who has lived in 20
areas creates a systematic prejudice. Unless of course everybody should
always maintain an in date CRB certificate.
It is probable that ensuring a similar prejudicial system does not emanate
from the DPA means that a great degree of care is required when considering
offences across the varied DP environment. What can create a puzzle is where
consistency is not maintained or/and people do not raise any issues with
unfair balances. Conceptually considering privacy by removing the political
aspects at least assists in recognising some of the issues involved.
Ian W
> -----Original Message-----
> From: This list is for those interested in Data Protection issues
> [mailto:[log in to unmask]] On Behalf Of Tim Trent
> Sent: Monday, March 21, 2005 10:09 AM
> To: [log in to unmask]
> Subject: Re: Interview notes
>
>
> "Gosh, I'm sorry. I never realised they were part of an access
> request." Which reinforces the absolute requirement for a correct
set
> of policies that are linked to disciplinary processes.
>
> -----Original Message-----
> From: This list is for those interested in Data Protection issues
> [mailto:[log in to unmask]] On Behalf Of Stuart Lynch
> Sent: 19 March 2005 16:36
> To: [log in to unmask]
> Subject: Re: [data-protection] Interview notes
>
> For a public authority and/or its employees, "unfair destruction"
can
> be a criminal offence, if it's done to with the intention of
> preventing disclosure as part of a SAR response (Section 77, FOIA).
>
> Stuart Lynch
> Stuart Lynch Consulting Ltd
> 01704 870365
> 07709 400236
> mailto:[log in to unmask]
> www.stuartlynchconsult.com
>
>
> -----Original Message-----
> From: This list is for those interested in Data Protection issues
> [mailto:[log in to unmask]] On Behalf Of Tim Trent
> Sent: 18 March 2005 13:42
> To: Stuart Lynch Consulting
> Subject: Re: Interview notes
>
> In all circumstances it behoves any organisation to have a "Data
> retention Policy" and a "Data Deletion and Destruction policy"
(these
> are complementary, not opposites) and to have simple versions
> available for public inspection. Interview notes and disciplinary
> hearing notes should be considered for explicit mention in the
> policies
>
> In this way no accusations of "unfair destruction" may be made
unless
> there are breaches of those policies.
>
> Such policies should, of course, be a part of the HR Code of Conduct
> and breaches should be subject to disciplinary action up to and
> including summary dismissal for a grave offence.
>
> I often end up drafting these. It never ceases to surprise me how
> often they are absent.
>
>
> Tim Trent - Consultant
> Direct: +44(0)1344 392644 Mobile:+44(0)7710 126618
> email: [log in to unmask]
> Marketing Improvement Limited, Abbey House, Grenville Place,
> Bracknell, United Kingdom, RG12 1BP
> http://www.marketingimprovement.com
>
>
>
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> -----Original Message-----
> From: This list is for those interested in Data Protection issues
> [mailto:[log in to unmask]] On Behalf Of Broom, Doreen
> Sent: 18 March 2005 13:12
> To: [log in to unmask]
> Subject: Re: [data-protection] Interview notes
>
> Yes, so be careful what you write.
> D
>
> > -----Original Message-----
> > From: This list is for those interested in Data Protection issues
> > [SMTP:[log in to unmask]] On Behalf Of Doug Colyer
> > Sent: 18 March 2005 10:30
> > To: [log in to unmask]
> > Subject: Interview notes
> >
> > Dear all
> >
> > I am certain that this subject has been previously discussed but I
> > cannot
> find the emails. So if you all don't mind being patient with me,
could
> you confirm if in your opinion within the context of a selection
> interview (as for a job), can the interviewee ask to see the notes
> made by the interviewing panel when they were interviewing him/her
for
> the job ?
> >
> >
> > Douglas Colyer
> >
> >
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