Making it mandatory could fall foul of Principle 3 (relevant and not
excessive) and could fail to meet a Schedule 3 Condition: For the first
Condition, "consent" isn't "explicit" without a detailed explanation of why
the data is being collected *and* a genuine choice for the Data Subject
(otherwise it's not "freely given"). So you would have to rely on the ninth
Condition (ethnic monitoring). Unfortunately, this Condition does not give
the same specific right to the Data Subject to prevent the use of data on
ethnicity as is provided in SI 2000 No.417 in respect of religion and health
information. A similar outcome might be achieved, however, by arguing that
without consent you would have to be meeting the sixth Schedule 2 Condition
(because meeting Schedule 3 is *in addition* to meeting Schedule 2) and this
would open the way for the Data Subject to make a s.10 application to
prevent processing causing harm.
If, however, the Data Controller is arguing that its ethnic monitoring is a
matter of necessity, they may have a case for saying that there is no
definitive breach of DPA in making an ethnic monitoring question mandatory.
But it's very bad practice, and easily solved by including a "prefer not to
say" option.
Paul Ticher
0116 273 8191
22 Stoughton Drive North, Leicester LE5 5UB
I hereby require any recipient of this message not to use my personal data
for direct marketing purposes.
----- Original Message -----
From: "Paul Dodgson" <[log in to unmask]>
To: <[log in to unmask]>
Sent: Tuesday, February 01, 2005 8:16 AM
Subject: Recording ethnicity
> Dear All
>
> We are examining methods of checking that accessibility of services can be
> properly representative of users in terms of ethnicity. To do so we may
> decide to record ethnicity when someone registers on our faq system. I am
> very uncomfortable about this for obvious reasons in terms of DPA and
> Schedule 3. What is proposed is that recording ethnicity is made
> mandatory as part of the FAQ registration, so no ethnicity, no
> registration. I need support to drive my concerns forward.
>
> My question is - Am I barking or am I on the button? any views much
> appreciated
>
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