Subject Access is a very special form of disclosure, because it is (I think)
the only time anyone can use the DPA to force you to disclose data to them.
You have to make the disclosure regardless of any potential consequences if
you meet the tests for third party material (consent or "reasonable in all
the circumstances").
Allowing someone to view data outside the Subject Access provisions is a
disclosure that comes under the normal processing rules and I agree that the
sixth Schedule 2 Condition is the one to look at. So, if it is in the
legitimate interests of the person you are disclosing to, without
unwarranted prejudice to the rights, freedoms and legitimate interests of
the person whose data is being disclosed, you may - but don't have to -
disclose.
In this case, I think you could argue that it is in the complainant's
legitimate interests to see whether there is any CCTV footage that might
substantiate their claim, and that it doesn't unduly harm the other party.
After all, if there is no CCTV evidence it might save everyone the bother of
a 'his word against yours' argument and if there is evidence then that's
what the CCTV is there for, after all.
I suppose the alternative line would be for someone independent to view the
footage and decide whether there was enough evidence to take action anyway.
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, March 04, 2011 1:24 PM
Subject: Re: CCTV
Phillip,
I see your points and they are well made (as usual). However, I have to
disagree. The issue is about disclosure not the form or the content.
Allowing someone to view a video is disclosure just as releasing it to them
in a permanent form is a disclosure.
For example, the applicant may want to see video footage to confirm whether
something happened out of their immediate sight but on the CCTV footage. (A
bit far fetched but plausible) For example, their partner talking with
another person event though the applicant is the subject of the SAR, they
may be able to look at that footage to confirm the main issue under the
pretext of the secondary issue. You may not have given them the video but
by allowing them to see it you have disclosed that information. The
consequence may be that their suspicions are confirmed and they then clout
their partner or the other or both.
You will have to consider the consequences of disclosure and allowing
someone else to view it is disclosing it, if only to that person.
By allowing this approach, what is the limit? For example, are you
disclosing the personal information to the police if they just want to view
the video tape? For example, they come to the library and ask to view the
video tape to see if suspicious character X was in the library.
The issue revolves around disclosure and I would argue that if someone views
it you have disclosed it just as providing it in permanent form is
disclosure.
Happy to be corrected as I am eager to learn from this issue.
Best,
Lawrence
-----Original Message-----
From: Bradshaw, Phillip [mailto:[log in to unmask]]
Sent: 04 March 2011 13:09
To: Lawrence Serewicz; [log in to unmask]
Subject: RE: [data-protection] CCTV
"The ICO's view, over the telephone, was that if you are able to view
you should be able disclose."
I am happy to disagree with the IC on that issue. I can look at this two
ways
Disclosure involves applying a statutory test under s7 DPA, in which I
have to consider whether "it is reasonable in all the circumstances to
comply with the request without the consent of the other individual"
(s7(4)). One of those circumstances must be the consequences of
supplying "a copy of the information in permanent form" which I am
bound to supply if required under s8(2).
However if I do refuse then I can still allow viewing as long as I am
satisfied that this is fair and lawful using condition 6 - and I do not
have to factor in the consequences of supply. There is no reason at all
why I cannot legitimately reach the conclusion that there is no breach
in showing the tape to someone who was there. The two decisions are not
incompatible because the facts are different.
Alternatively I can ask the subject to agree to waive his rights to a
copy under s8(2)(b) and if he does so I can take that waiver into
account as one of the circumstances to be considered under s7(4) and
allow the SAR by communicating the data to him in an intelligible form
by letting him watch it on my premises.
In short, in my view (which is not to be taken as Cardiff Council's
view) , the IC is wrong.
Phillip Bradshaw
Information Manager
Democratic Services
Room CY5C, County Hall
EMail: [log in to unmask]
Phone: 029 2087 3346
Mobile : 07890 265987
Fax: 029 2087 3349
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