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Ian, Even Mrs France in her covering letter said that the advice given last year was "...not binding...." on authorities. This is not to say it was advisable to go against her - on receipt of the advice we followed it. However, new advice has come along not simply disagreeing with the previous, but identifying a flaw in the argument and going on to look at "...what parliament intended...." and giving a view that local authorities have the required 'vires'. I don't know - yet - nor have I addressed in any posting to date HOW we ensure compliance with the first principle. I do agree, and have said, it should, nay MUST be complied with - as must principles 2 to 8. All I have tried to make clear is that the first 'hurdle', that of 'vires' as introduced by ODPC last year and thought to be insurmountable, is - in my opinion - no longer a problem. Whilst thinking about 'what the intention was', the argument turns on your assertion of the two alternatives. The way you put it, "was it to let councils use C Tax info as they wish" or "prevent the Secretary of State imposing regulations that would infringe the rights of individual privacy" - looks very different when expressed "was it to let councils use C Tax information wisely to better perform their statutory (and related) duties" or "position Chinese walls so that one part of the council doesn't know what another part is doing - to the detriment of service users, not to mention all common sense". Yes mine may seem extreme from your point of view (it is, deliberately overstressed to make the point), but so is yours from my point of view - beauty is, as they say, in the eye of the beholder!! Dave U >>> <[log in to unmask]> 31/October/2000 01:51pm >>> In a message dated 31/10/2000 12:18:10 GMT Standard Time, [log in to unmask] writes: << No, the new advice does identify a vires!! I, too, spoke to ODPC when I received the new advice. They, as you confirm, refuse to change their 'opinion' or go back to their counsel for a revised view as they say they paid for advice, received it, and see no reason to spend further (?'public') money on the subject. I suggested that even if they didn't want to go back and get their solicitor's views on the new advice, they should at least stop issuing their 'old' advice. We are not talking a difference of opinion between two solicitors that can only be resolved in court, here. The original advice is flawed on a point of fact! They declined, and will continue to issue / refer to their original advice. As regards first principle, this is why I added the "...VERY BIG note of caution...." that I did. At the end of the day, it is for individual councils and their legal depts to say what, if any, reference to C Tax data they will permit other depts. The lawfulness of such action is what will, taken to the furthest extreme, will be determined in court. I, in no way, advocate the wholesale opening up to every corner every piece of info held. I merely suggest that careful, informed, proper sharing of minimum data for certain purposes is not, in the first place, ultra vires, and could at least be defended hopefully without resort to the courts. >> -------------------------------------------------- Dave I'm glad you are strong enough to put in writing the advice that another DPO has been giving verbally without the guts to put in writing what he believes. The advice from his QC, as I understand it, runs to around 40 pages and is in the usual legalistic jargon containing the usual caveats. Flawed in "fact"? I don't think so, and I don't agree with your analysis that it contains the vires. I read paragraph 17 this way - Subsection 1 says that the Secretary of State may make regulations in respect of the further use of this data, but subsections 2 & 3 go on to say that he cannot make such regulations in respect of information that identifies the individual - i.e. personal data. In other words, even if the Sec of State wanted to make regulations for the further use of personal data, he would not be allowed to. How's that for an equally valid interpretation of Para 17 of Schedule 2, LGFA 1992? In many court cases (and I'm sure it will take one to sort this out) they look back at Hansard to see what the intention was in respect of the particular section - was it to allow councils to use CT data as they wish, or was it to prevent the Secretary of State imposing regulations that would infringe the rights of individual privacy? [If anybody has the time and inclination to look at Hansard, I'm sure we'd all appreciate the effort] Let's assume for one moment that the vires question gets sorted one day, and let's also assume it is found in your favour, how do you propose getting consent for these further uses in order to be fair to the data subjects? Will you have a form that says at the top "you are required by law to supply this information" then have a series of tick boxes for the other purposes making it clear that these further uses are not required by law? Now I don't for one moment profess to know more than the QC who was asked for his opinion (albeit the opinion was based on a premise that was included as part of that question - and the issue of fairness wasn't posed) I just wonder whether readers are likely to ignore the advice given by the Data Protection Commissioner in her role as the enforcement authority. I, for one, would not. Ian B ********************************************************************** This email and any files transmitted with it are confidential and intended solely for the use of the individual or entity to whom they are addressed. If you have received this email in error please notify the system manager. This footnote also confirms that this email message has been swept by MIMEsweeper for the presence of computer viruses. www.mimesweeper.com ********************************************************************** %%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%