Yes I would agree with that analysis - with one proviso - s
Paul
Yes I would agree with that analysis - with one proviso - since 7(4)(a)
is mandatory if consent exists (but still doesn't mean you have to seek
it).
The proviso is the need to consider whether s9A(2) or s33A(2) applies in
a particular case to take it out of the SAR scope(probably not in the
specific examples).
Phillip Bradshaw
Information Manager
Clerk to the Council
Room CY4A, County Hall
EMail: [log in to unmask]
Phone: 029 2087 3346
Mobile : 07890 265987
Fax: 029 2087 3349
Information is the Currency of Democracy
-----Original Message-----
From: This list is for those interested in Data Protection issues
[mailto:[log in to unmask]] On Behalf Of Paul Ticher
Sent: 22 January 2010 16:22
To: [log in to unmask]
Subject: Re: [data-protection] Third party permission to disclose
Not particularly a response to Lawrence's contribution, but a general
one:
I think the DPA prioritises disclosure of third party material over
non-disclosure. As I read it, s.7 (4) says (paraphrased) that if the
third party has consented to the disclosure you *must* disclose. If
they have not consented (perhaps because you couldn't ask them, or were
confident that you could predict their response, or that there were no
possible legitimate
objections) you *must* disclose if it is reasonable to do so. If they
have expressly withheld consent you must tread carefully, but even in
that case it may be reasonable to disclose without consent.
If I'm right, and the test of reasonableness trumps consent, then a lot
of subject access dilemmas become a lot easier.
I'd be interested to know whether I'm out on a limb here, or whether
others agree.
Paul Ticher
0116 273 8191
22 Stoughton Drive North, Leicester LE5 5UB
----- Original Message -----
From: "Lawrence Serewicz" <[log in to unmask]>
To: <[log in to unmask]>
Sent: Friday, January 22, 2010 4:05 PM
Subject: Re: Third party permission to disclose
Dear All,
I have been thinking about DP and Access to records legislation. What
about
a situation where someone wants to see a file note created on their
account.
I will give two different scenarios. The first is social care, the
second is
benefits.
In the first, someone calls social services and expresses concern to the
care worker about a relative. They say that they are worried about how
the
relative's partner is treating them and concerned about that they are
being
cut off from their relatives. The phone call is noted and then entered
on
the social care file. Social worker visits the client. Client is told
that
someone has called expressing concern about her. The Client then becomes
upset because she believes her family (or someone) is meddling and
making
slanderous or libelous allegations about the partner and asks to see a
copy
of the file note to seek legal action on the allegations.
The second is a couple split up and the husband moves out. However, he
leaves no forwarding address and they remain joint owners of the home.
Council tax comes due and the wife calls the council and explains that
the
husband moved on on x date so council tax should be reduced or he should
be
pursued for his half. File note is duly created noting the date husband
vacated home. Husband is then pursued for his share. He seeks copy of
file
note wanting to know what it says and when it was entered. The content
is
simply that the wife informed the council that he left the home on the
date
nothing more.
Both have DP implications. In the first, I could see redacting the 3rd
party information and still supplying the information i.e. enough so
that
they cannot identify the source. In the second, the 3rd party is known
i.e.
the wife so I cannot redact that in any way that the applicant would not
know the wife submitted the material. For example, we have a note on
your
account showing you moved out on x date. What? Who told you that? I
want to
see the file note.
In the first I could proceed, but in the second would I be better using
s.7(6)(a)? Or have I over analyzed the second and it is something that
would
be routinely disclosable in any circumstance?
Any guidance would be appreciated.
Thanks
Lawrence
Durham City of Culture - Back the Bid: register at www.durham.gov.uk.
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