I recently was asked to advise the council about a tenant who was unlawfully
evicted and went to a street advocacy project to seek legal aid. This tenant
somehow didn't know the name & address of her landlord but the adviser came
to the council (who obviously knew) and asked for the disclosure. I looked
at S 35 and found the little word 'any' in section 35 (2) (a) which allowed
me to say yes this is an exemption that can be used in 'any' legal
proceedings - eg an action against a landlord for unlawful eviction.
At the time I was cautious and even disregarded the advice of an expert
solicitor in the field and recommended that disclosure was possible (but or
course not compulsory) but having seen your thoughts I feel much happier.
It looks like anyone going to law or even to legal advice can use this
exemption... remember not just lawyers give legal advice!
-----Original Message-----
From: J F Hitches [mailto:[log in to unmask]]
Sent: 11 September 2001 16:44
To: [log in to unmask]
Subject: Section 35
You may recall that I recently raised a query on this list in relation to
SEction 35 of the DPA. I have now received the following, surprising
response, from the OIC which confounds the general view expressed by
respondents to my original query:
Thank you for your email of 5 September. You ask about Section 35(2) of the
DPA 1998 and whether the exemption (disclosure) relates only to legal
proceedings in which the data controller is involved. You indicate a
misconduct case, involving a statutory professional body.
The exemption is not restricted to cases involving data controllers but to
anyone who requires the information
For the purpose of obtaining legal advice, or is otherwise necessary for the
purposes of establishing, exercising, or defending legal rights.
For these purposes, I would consider proceedings involving the statutory
professional body as having the same weight as actual court appearance."
I have asked to the OIC to give further thought to their response. Their
interpretation seems to indicate that I can ask a data controller to provide
personal data of someone I just think may be a witness to my alleged
speeding offence so that I can obtain legal advice, and that the provision
of data would be acceptable.
This seems to provide a wonderful loophole for fishing trips and to be
against the spirit of so much of the Act.
John Hitches
J F Hitches
Data Protection Officer and
Information Security Officer
Kingston University
River House
53-57 High Street, Kingston upon Thames
Surrey, KT1 1LQ
Telephone/Fax: 020 8547 7768
E-mail: [log in to unmask]
The views expressed are those of the individual and
not necessarily those of the university.
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