I apologise that it was not a good example.
Move the situation to "Youth group" and "Youth leader" and "Youth group
records". Please then reconsider the situation which now (presumably) falls
outside any parental right of access to an educational record.
-----Original Message-----
From: This list is for those interested in Data Protection issues
[mailto:[log in to unmask]] On Behalf Of Donald Henderson
Sent: 31 March 2006 16:33
To: [log in to unmask]
Subject: Re: [data-protection] Phot Image consent
I've been watching this debate with interest, since we are actively trying
to address this very thorny issue (and wishing we hadn't started
!)
A couple of observations... Scottish kids are deemed competent by the DPA at
12. Trying desperately to avoid being accused of racial discrimination, that
probably means that 12 year olds in the rest of the UK are going to have to
be considered competent too.
Secondly, Tim's example is not a good example since (as we all know),
parents have right of access to the school's pupil record for their child
outwith the DPA.
I must admit, our current practice is to set the age for consent on forms,
etc. at 16 - principally because we don't think we could "sell"
the lower age even though that's what the Act says.
I have had it suggested to me that we try to word things so that we "take
account of a child's views", but that seems to just make things worse since
we still wouldn't know what to do if a parent and child disagreed...
Donald Henderson
Information Compliance Manager
Perth & Kinross Council
-----Original Message-----
From: This list is for those interested in Data Protection issues
[mailto:[log in to unmask]] On Behalf Of Tim Trent
Sent: 31 March 2006 15:59
To: [log in to unmask]
Subject: Re: [data-protection] Phot Image consent
Digressing from the topic of photos a little, the concept of being
sufficiently competent to decide what happens about data concerning a child
flows both ways.
Consider a mature young teenager in the awkward period between 13 and 16,
where they are increasingly intellectually mature, and yet considered for
many things to be a child. That teenager confides in a teacher a matter
that is lawful, of great personal importance to them and that they wish
always to be kept secret from parent, carer, guardian etc. It is a matter
of sufficient important for the teacher to note carefully and formally in
the child's record, is sensitive data and is correctly safeguarded. The
Durant precedent is not relevant because of the manner in which the data is
held, and a SAR from the child would be expected to reveal this information
to the child.
The parent, suspecting something of this, issues a SAR against the school
requiring disclosure of all data held on the child. The parents motives are
irrelevant. They may be wholesome and protective of their child, they may
be abusive, but that is not relevant.
I can see a large argument ensuing whatever the school does:
A) Fulfils the SAR without reference to the child: Against child's express
wishes
B) Consults child about SAR: Child has blazing row with parents because
child feels spied upon
C) Partially fulfils SAR omitting reference to the confidential item:
Suspicious parent raises hell
D) Refuses to fulfil the SAR because the parent is not entitled to any
information of this class about the child: Parent raises hell
etc
-----Original Message-----
From: This list is for those interested in Data Protection issues
[mailto:[log in to unmask]] On Behalf Of Ian Welton
Sent: 31 March 2006 15:45
To: [log in to unmask]
Subject: Re: [data-protection] Phot Image consent
As you say given the various activities children may be involved with at
school the difficulties are numerous.
The point you make though seems to me to present the main subject at issue
from a slightly different perspective. i.e. At what point and in what way
does a child become sufficiently mature to deal with all the information
necessary to properly inform them in any particular decision they may make
about their own privacy.
Acknowledging that decisions on disclosure to a child would be dependent
upon the issues in question as well as perhaps more influentially how others
who hold relevant information are able cope with or explain it a further
matter of who should make disclosure decisions when a child has reached the
necessary level of maturity arises, and how should those people be kept
informed of opinions about levels of maturity.
Given that education systems themselves are ostensibly designed to inform
children at appropriate levels of maturity about information which is
thought pertinent to them the issue could perhaps be viewed from some
perspectives and in some circumstances as less than clear but it is one
which the DPA requires to be taken when dealing with a childs data
Ian W
> -----Original Message-----
> From: This list is for those interested in Data Protection issues
> [mailto:[log in to unmask]]On Behalf Of Tim Trent
> Sent: Friday, March 31, 2006 1:14 PM
> To: [log in to unmask]
> Subject: Re: Phot Image consent
>
>
> There is one extra and important element here. That of abusive ex
> carers who may be restrained from contact with a child.
>
> I can cite an example where my wife teaches of a child whose pictures
> may not ever appear in any form in a way to make the child traceable
> by her absent abusive ex carer. The child's school surname is
> unrelated to the "real" surname. The child may not even be aware of
> this, but the parent has given a blanket refusal, supported by court
> papers, to seek to ensure that the child's picture never appears, for
> the child is in real danger.
>
> If that child overrode the parental prohibition because he or she was
> unaware of the possible consequences, and the school were not properly
> aware of the issues (which happens because staff change and things do
> get misplaced, or buried in files beneath a welter of papers) then
> major problems would arise.
>
> Those whose role involves the safekeeping of children have a very
> challenging tightrope to walk ensuring that the child's rights and the
> child's safety are correctly balanced with the child's need to know
> about potential danger.
>
> -----Original Message-----
> From: This list is for those interested in Data Protection issues
> [mailto:[log in to unmask]] On Behalf Of Lee Gardiner
> Sent: 31 March 2006 11:38
> To: [log in to unmask]
> Subject: Re: [data-protection] Phot Image consent
>
> I certainly don't see a major conflict in the two pieces of advice.
> The Teachernet advice only says that 12 year olds are presumed to be
> able to exercise their own rights but it doesn't say that parents
> can't be consulted or that consent can't be obtained from them. In
> fact the Teachernet advice encourages schools to include parents in
> the process if children are over twelve.
>
> Just because a child is 12 years old doesn't mean they have sufficient
> maturity, its only a presumption and isn't a hard and fast rule.
> The fact is
> some 12 year olds are more than mature enough to make an informed
> decision while other older children quite clearly aren't so the
> school/LEA must make a judgement based on the individual cases or,
> more reasonably given the numbers of children starting at new schools
> every year, have a policy to notify the parents and obtain their
> consent for processing. There is nothing to stop the school involving
> the children in this process.
>
> Regardless of this I hardly think the ICO is going to have major
> issues with a school which errs on the side of caution and follows the
> 'actnow' advice and obtains consent from the parents of a 12 year old
> rather than the child themselves.
>
> A general rule of thumb test I employed at the ICO and that was said
> to data controllers asking for any advice was 'what would you expect
> to be done if it was your data being processed?' or in this case if it
> was 'your son/daughter's data being processed?' I think in the vast
> majority of cases people, as parents, would expect to be consulted and
> if in doubt for schools/LEAs to err on the side of caution. Better to
> get it 'wrong' by being too rigid than get it wrong by being too lax.
>
> As Tim has just said though consent lasting for 5 years is probably
> pushing it but as to whether it should be obtained annually or maybe
> bi-annually is a different matter My view is annual but obviously
> others may disagree.
>
> The only remaining consideration is of course once a child reaches
> their mid-teens they may be inclined to withdraw their consent for
> certain non-essential processing (photographs etc) and schools/LEAs
> should have mechanisms in place to allow for that.
>
> Lee Gardiner
> Records Manager
> x4140 or 01942 404140
> [log in to unmask]
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