Tim's advice is (in my opinion) relatively sound, althought I don't
necessarily agree with his assessment of the probability.
The thing to remember is that EC law and Convention law are two TOTALLY
different things, and although there are some parallels and similarities
(it would be unthinkable for the ECJ to not take Convention rights into
account in reaching a decision on EC law (since respect for the
Convention is built into Community obligations) -- but the ECtHR would
have no regard whatsoever to Treaty rights -- all that matters, would be
whether the Convention rights have been violated.
They have a quite different function, and are not connected. Convention
rights have NOTHING TO DO WITH THE EU -- they are a creation of the
Council of Europe.
What does all this mean?
I think that it would be dangerous to base long term planning on a
restrictive interpretation of Durant. Even if Durant v UK does not find
any violation, the EU law making apparatus can issue a Regulation
confirming the wider interperation. (This is the equivalent of the UK
Parliament legislating after a defeat for the Government in the courts).
It does mean IMO and as Tim seems to intimate, taht if you are in the UK
and comply with Durant guidelines you are safe, for the time being from
any unwelcome attention from TICO.
But I wouldn't build any Information System assuming it will stay that way.
Tim Trent wrote:
> Durant is likely to be overturned (0.9 probability) based upon Brussels
> pressure on the UK. Equally Mr Durant is heading for Strasbourg.
> (http://www.marketingimprovement.com/hotnews/freestanding/durant-Strasbourg.
> html) which will create its own pressure.
>
> Since you are a wholly UK organisation you can, for the moment, choose to
> act within the Durant precedent. If your reach were outside the UK it would
> behove you to ignore it and act as if the restrictions did not exist.
>
> Tim Trent - Consultant
> Direct: +44(0)1344 392644 Mobile:+44(0)7710 126618
> email: [log in to unmask]
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> -----Original Message-----
> From: This list is for those interested in Data Protection issues
> [mailto:[log in to unmask]] On Behalf Of Graeme Hawley
> Sent: 16 March 2006 14:16
> To: [log in to unmask]
> Subject: [data-protection] Durant - Can I ignore it?
>
> Sorry to bring up Durant again.
>
> I think that I have understood that Durant allows a data contoller to take a
> very narrow definition of relevant paper filing systems (leaving aside the
> FOI affected public authorities for the minute). But does Durant stop a
> Data Contoller from applying a broader definition if they so wish. In other
> words, just because Durant allows the pusillanimous organisation the
> opportunity to discount folders with names on (but sinfully arranged in
> chronological order - what's that all about?), does the Durant ruling mean
> that a sturdier organisation is forbidden to go that gruelling extra mile,
> and, for example, fish out an individuals personnel file from the
> alphabetically arranged sequence of names in response to that individual's
> request for access.
>
> As it happens, I work for a public authority so am covered by FOISA and its
> wider definition of relevant filing system anyway. Ironically, we do hold
> information which I would like to apply a narrower definition to, but FOISA
> means we cant. We hold upwards of 50 million pages of manuscripts in our
> library collection, many of which contain personal data. Despite the best
> efforts of our staff to catalogue these, my guess is that they would more
> than classify as unstructured data not held in a relevant filing system.
> But because of FOISA, they are covered by access legislation, and all of the
> various problems this creates (such as the theoretical possibility that we
> may have to spend an unlimited amount of time and resources searching for
> the existance of a persons name in tens of thousands of paper documents -
> remembering that the FOISA charging structure does not include time spent
> establishing whether the information is held or not).
>
> Is it me?
>
>
>
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