I have been looking at the conditions in the current DPA relating to statutory functions. Specifically Schedule 2 Condition 5(b) and Schedule 3 7(1)(b) both of which are in identical terms: "The processing is necessary— ... for the exercise of any functions conferred on any person by or under an enactment"
I have a clear recollection and view that this can only be applied where the relevant enactment confers a duty to process, but not where it simply confers a power. However I have not been able to find any definitive statement to this effect in the ICO Guide to DP or in e.g. the Data Sharing code of Practice. The consequence would be that, if only a power, some other Schedule Condition(s) must be found.
I'm not sure if this was because, in the case of a power it is not a "function conferred" or because it will fail the necessity test - or possibly both
Can anyone point me to any guidance / caselaw which deals with this issue?
If not does anyone agree / disagree with the proposition?
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