Jane,
Thanks for the email. If the police would need to make it clear they are disclosing confidentially and not under either regime given that they have received a written request for information, which by default is an FOI request. However, two deeper problems remain.
First, why are the police disclosing personal information relating to a crime or an alleged crime? I still do not understand how that works. If case is closed, then I could begin to understand, however that undercuts the use of s.29(3), which is to prevent crime or in response to a crime. I also need help understanding why or how they are disclosing this information without investigating it themselves or having the police involved. As far as I understood the law, I am an American so there is much that I do not understand about the UK legal system, only the Police are empower, by the law, to investigate crimes. I understand that people can pull together evidence and investigate what may be a crime, but once they have a crime or an alleged crime, it turns into a criminal matter and enters a different legal territory.
Second, my understanding of government was that it could not charge a fee for anything unless it had either direct or indirect statutory authority to do so. Thus, if a public authority is charging a fee for a service, there has to be a statutory authority allowing that charge. I understand the powers of wellbeing was initially introduced to deal with this issue, but it's design and use were less than conducive to it because the charge could not generate revenue, it had to be revenue neutral. Now, it may be that the Police have a special legislative waiver in this area, but even they would need a statute or a statutory instrument to show they have the waiver.
However, I am happy to be corrected on this or any of the other points.
Best,
Lawrence
-----Original Message-----
From: Jane Holden [mailto:[log in to unmask]]
Sent: 07 November 2011 09:11
To: Lawrence Serewicz; [log in to unmask]
Subject: RE: [data-protection] Are police really charging for s.29(3)? Is this possible? (long post)
It's not FOIA or EIR because disclosure would be to the public at large. You simply cannot disclose this kind of information under either of these provisions.
And you haven't stated what information you have requested from the police in this scenario. Information requested under the provisions of S 29(3) doesn't mean the information requested are details of a persons criminal record.
If the provisions of FOIA were engaged then public authorities would put on obligation on the LAs to provide the information. S.29 does not oblige LAs to do anything it just provides a means of disclosure.
The police do not have to cite a regime in order to charge. Public authorities charge for things all the time without the backing of a specific piece of legislation explicitly giving them the permission to do so. It's an admin charge.
Jane Holden
Corporate Services Officer
Legal Services
Barrow-in-Furness Borough Council
Town Hall, Duke Street
Barrow-in-Furness
Cumbria LA14 2LD
Tel: 01229 876452
Fax: 01229 876515
-----Original Message-----
From: This list is for those interested in Data Protection issues [mailto:[log in to unmask]] On Behalf Of Lawrence Serewicz
Sent: 07 November 2011 09:01
To: [log in to unmask]
Subject: Re: [data-protection] Are police really charging for s.29(3)? Is this possible? (long post)
Michael,
Sensitive information is a crime or allegation of a crime. To get s. 29 (3) requires prevention of crime or crime. How can you prevent a crime without claiming it is a criminal activity is the question.
Sensitive personal information has as one of its categories "the commission or *the alleged commission* by the data subject of any offence."
Thus, to use s.29 (3) by default one is handling sensitive personal data. Thus, what is the schedule 3 condition to allow it? Especially from the police to a private individual?
Best
Lawrence
Lawrence W. Serewicz
Principal Information Management Officer
Room 4/140
Durham County Council
DH1 5UF
0191-372-8371
----- Original Message -----
From: Doherty Michael (EAST KENT HOSPITALS UNIVERSITY NHS FOUNDATION TRUST) <[log in to unmask]>
To: Lawrence Serewicz; [log in to unmask] <[log in to unmask]>
Sent: Mon Nov 07 08:47:29 2011
Subject: RE: [data-protection] Are police really charging for s.29(3)? Is this possible? (long post)
Morning all,
No crime, not sensitive, no schedule 3 condition required.
Regards,
md
Michael Doherty
Information Governance Manager
East Kent Hospitals University Foundation Trust
Kent & Canterbury Hospital
Ethelbert Road
Canterbury
CT1 3NG
Tel (direct dial): 01227 783142
________________________________________
From: Lawrence Serewicz [[log in to unmask]]
Sent: 04 November 2011 18:44
To: Doherty Michael (EAST KENT HOSPITALS UNIVERSITY NHS FOUNDATION TRUST); [log in to unmask]
Subject: Re: [data-protection] Are police really charging for s.29(3)? Is this possible? (long post)
Good stuff thanks
Not sure it works in s29 (3) cases because of 3 (1) (d)
Is the information going to be published relating to s29 (3)? Also if a crime rather than unlawful. I can fail to pay the parking meter. This is unlawful, but it is not a crime. Remember that 29 (3) is about *criminal* activity real or alleged.
I think the SI works in many areas and serves a purpose however I am uncertain that it would apply in this case for these reasons.
Happy to learn otherwise and very glad to be reminded of this SI.
Best
Lawrence
Lawrence W. Serewicz
Principal Information Management Officer
Room 4/140
Durham County Council
DH1 5UF
0191-372-8371
----- Original Message -----
From: Doherty Michael (EAST KENT HOSPITALS UNIVERSITY NHS FOUNDATION TRUST) <[log in to unmask]>
To: Lawrence Serewicz
Sent: Fri Nov 04 18:22:59 2011
Subject: RE: [data-protection] Are police really charging for s.29(3)? Is this possible? (long post)
Hello Lawrence,
Still at work, so not a lenghty reply, as there will be beer at the end of the tunnel. The Schedule 3 condition is provided by the Data Protection (Processing of Sensitive Personal Data) Order 2000. It's the first condition.
Regards,
md
Michael Doherty
Information Governance Manager
East Kent Hospitals University Foundation Trust
Kent & Canterbury Hospital
Ethelbert Road
Canterbury
CT1 3NG
Tel (direct dial): 01227 783142
________________________________________
From: This list is for those interested in Data Protection issues [[log in to unmask]] On Behalf Of Lawrence Serewicz [[log in to unmask]]
Sent: 04 November 2011 17:55
To: [log in to unmask]
Subject: [data-protection] Are police really charging for s.29(3)? Is this possible? (long post)
Dear All
Thanks for the posts on this thread. Four things that puzzles me about the thread (There is a lot that puzzles me, but that is for another post :) ).
First, I write to the police requesting that they supply the information, which is personal information and therefore exempt under the FOIA. However, I ask that they consider s.29 (3) as an exemption to those data protection rights of the individual i.e. non-disclosure. If they agree, are they then responding to an FOI request? If so, are they required to provide the information for free? My request is in writing, it is stating what I want, and I am giving them the exemption for the data protection act, which would override any concerns about personal information.
I would be asking the police to explain under which regime are they disclosing information to me for a fee. It cannot be under the Data Protection Act because I am not requesting the information about myself. What s.29 (3) is doing is allowing them to disclose the information and overcome the DPA restrictions. Therefore, they are either disclosing under the EIR or FOIA. I would guess the FOIA. If it were neither, then it would need to be clarified. They could state that they are not providing it under either regime, but they would have to explain why my request for information is being processed in this way for a fee.
Perhaps I have over analyzed this issue, but it looks like FOIA to me and they have no basis to impose a fee unless they have clearly explained by they are charging such a fee. If the fee is not in the fees and charges on their publication scheme, then there could be an argument to have them provide it for free.
Second, there is a subtle problem to this transaction. The Police are not sharing the information; they are providing it in exchange for a fee. As such, they have sold personal information to the applicant. As such, the transaction creates a different relationship than if they shared the information, with an expectation of confidence for the handling of personal information. Perhaps this is a going to astray, but there has to be something to the fact that they are selling the information rather than sharing it or disclosing it.
Third, I think there is a deeper problem to s.29 (3) requests. Perhaps this is beyond this scope of this question, but it needs to be considered. If I come to the police and I cite s.29 (3) with the claim that I need the personal information because the person is alleged to have committed a crime, is that information now sensitive personal information? Sensitive personal information has as one of its categories "the commission or *the alleged commission* by the data subject of any offence." If I have cited an offence, which I may require from now on to be sure that I am processing s.29(3), I need to consider what condition from schedule 3 is in place perhaps 3.6, but these would need to explained so that schedule 3 can be met. The s.29 (3) does not invalidate the need to meet schedule 2 or schedule 3. ["exempt from the first data protection principle (except to the extent to which it requires compliance with the conditions in schedule 2 and schedule 3)] In that scenario, how does the data controller, the police, satisfy itself that I am able to obtain this sensitive personal information (as it relates to an alleged criminal activity) to defend my legal rights? However, it raises a very deep and disturbing question relating to the police selling s.29 (3) information.
Finally, the most brutally obvious question emerges. How do I request personal information relating to a crime or a potential crime from the police and they provide it? Why are they not investigating the crime or the alleged crime? I am struggling to understand a police force that is charging people £75 to obtain personal information under s.29 (3) prevention of crime and they are not investigating that crime for alleged crime? Does that strike anyone else as strange?
I would be grateful to hear from others on these points and quite happy to be corrected on these issues. I think s.29(3) is perhaps being used in a way that is not entirely in line with the legislation and what it intended.
Best,
Lawrence
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