Many thanks for this Nick.
Doreen
-----Original Message-----
From: This list is for those interested in Data Protection issues
[mailto:[log in to unmask]] On Behalf Of Nick Landau
Sent: 07 June 2006 19:47
To: [log in to unmask]
Subject: Re: Information Disclosure to Assessors (ERO)
I thought that you might have said that the www.ico.gov.uk only applies
to E
and W.
But the advice quoted says:
"As the law gives a registration officer the power to inspect and copy
personal data, our view is that a registration officer can inspect and
copy
personal data collected for the purposes of Council Tax administration.
This
is because whilst the Commissioner understands that the only permitted
secondary uses and disclosures of Council Tax data are those specified
in
the Local Government Finance Act 1992, in consequential regulations, or
in
other statutes regulating different Local Authority, the latter
condition is
met by the above SIs. Please see our separate advice sheet __Secondary
Use
of Personal Data Held for the Collection and Administration of Council
Tax__." (not terribly helpful as it doesn't actually give the weblink -
assuming that there is one - can't find it.
There is a reference made to this advice sheet in
http://www.publications.parliament.uk/pa/cm200102/cmselect/cmtlgr/240/24
005.htm#n26
"Select Committee on Transport, Local Government and the Regions Sixth
Report
II. THE NATIONAL PROBLEM
The size of the national problem
THE NUMBER OF EMPTY HOMES"
"12. Empty property officers need information not only about the number
of
empty homes but also the identity and whereabouts of their owners. Their
names and addresses are held by local authority council tax departments
but
many local authority officers are uncertain about how such data can be
used.
Poole Borough Council has recently obtained Counsel's opinion which
suggests
that it can use data held by its council tax department to tackle the
problem of empty properties.[25] However, the Office of the Information
Commissioner has advised that local authorities have no power to make
disclosures of personal data held for council tax administration for
other
purposes and would be acting ultra vires if they do so.[26] The
Information
Commissioner wrote to the Chairman of the Committee to explain that her
staff have made several attempts over the years to encourage officials
at
the DTLR to clarify the issue for the benefit of local authorities. The
DTLR's memorandum to our inquiry, submitted in September 2001, referred
to
discussions between the Department, the Office of the Information
Commissioner and the Empty Homes Agency, an independent housing charity,
in
an attempt to identify a way forward.[27] In December, the Minister told
us
that this matter was now being considered by the Cabinet Office which
would
report in 2002.[28] The Information Commissioner informed us that there
has
been no contact from the DTLR since last year. She added that the best
way
for the Government to authorise the use of council tax data for such
purposes would be through the making of an Order in the case of
non-personal
data or through primary legislation in the case of personal data.[29]"
This was in 2002 and therefore the Advice might have been updated since
then.
Nick Landau
----- Original Message -----
From: "Broom, Doreen" <[log in to unmask]>
To: <[log in to unmask]>
Sent: Wednesday, June 07, 2006 6:44 PM
Subject: Re: [data-protection] Information Disclosure to Assessors (ERO)
Yes but Council Tax is not governed by Information Commissioner. I am
sure he was lobbying the PM about this.
D
-----Original Message-----
From: This list is for those interested in Data Protection issues
[mailto:[log in to unmask]] On Behalf Of Lawrence Serewicz
Sent: 07 June 2006 15:49
To: [log in to unmask]
Subject: Re: Information Disclosure to Assessors (ERO)
The ERO has the power to inspect to fulfill their duty. Yes, they have
a
wide ranging power on a very narrow topic.
Here is the url for the upload from the ICO
http://www.ico.gov.uk/documentUploads/The%20Right%20to%20Inspect%20Local
%20Authority%20Records.pdf
As to the Council tax, it can be used for a variety of secondary uses,
but
these are circumscribed by law. For example, and authority can use CT
to
track down its debtors. However, a council cannot use the CT for a
general information source. The address change would occur when the
person writes in or contacts the authority. If this requires going
through CT, then it would not be allowed.
Joined up government is stymied if it has to go through CT, although the
ICO has said that it might not be too bothered about pursuing this
unless
there are complaints. I cannot find the upload on the ICO page, but I
have a pdf that I downloaded from their site that covers this issue.
Here is the material cut from the pdf document
Legal Advice given to the Commissioner
5. The advice given to the Commissioner is as follows: *
Local authorities are creatures of statute and, as such, must have
specific statutory authority to use or disclose information acquired by
virtue of their powers to charge and administer Council Taxes for any
purpose.
The scheme under which Council Tax is administered is set out in the
LGFA
and the Council Tax (Administration and Enforcement) Regulations 19921
("the Regulations").
A Billing Authority (i.e. local authority) may make use of other
information in its possession, except that held in its capacity as a
police authority, together with information supplied by listing
officers,
precepting authorities, CCROs, EROs, the Commissioner of Births Deaths
and
Marriages, or the Commissioner General for England and Wales, and other
authorities, for Council Tax purposes. However, any (page break)
FN (Council Tax: secondary use of personal information held for the
collection and administration 1 SI 1992 No 613
August 2004)
p. 1
continued:
information so obtained may only be used or disclosed for Council Tax
purposes, unless specific statutory authority exists that allows
secondary
disclosure or purposes. *
There is no power in the LGFA or the Regulations to make disclosures of
personal data held for Council Tax purposes for other purposes.
Paragraph
17 of schedule 2 of the LGFA allows for regulations to be made for the
supply of relevant information to any person who requests it for another
purpose, but personal data is specifically excluded.
6. Since no other uses and disclosures are permitted, the processing of
personal data for any such other purposes (or to effect other
disclosures)
would thus be ultra vires.
7. The Commissioner also received advice regarding the application of
Section 111 of the Local Government Act 1972 to possible uses of data
held
for Council Tax purposes. This provides that: "a local authority shall
have power to do any thing ... which is calculated to facilitate, or is
conducive or incidental to, the discharge of any of their functions."
8. It has been suggested that this provision would sanction the use of
data held for Council Tax purposes for some secondary purposes,
notwithstanding the fact that the LGFA and the Regulations are silent on
the matter. The Commissioner is advised, however, that this is an
incorrect interpretation and that this Section does not allow the
exercise
of powers derived from one statute for another statutory function. In
particular it would not allow personal data held for Council Tax
purposes
to be used as a resource for other local authority purposes, even given
the consent of the Council Tax payer.
9. Section 111 may, however, allow billing authorities, when advising
Council Tax payers of how the local authority's budget has been
allocated,
to promote other Council services and to inform them of benefits and
other
schemes of which they may wish to take advantage.
10. In summary, the Commissioner's response to enquiries about possible
secondary uses of Council Tax data is that the only permitted uses and
disclosures of data are those specified in the LGFA or the Regulations,
or
in other statutes regulating different Local Authority functions. Lawful
Processing of Personal Data
11. The first data protection principle2 requires that: Personal data
shall be processed fairly and lawfully ...
12. Supported by the Data Protection Tribunal, the Commissioner has
taken
the view that the lawful processing element of this principle will be
breached if there is no lawful basis for the processing of personal data
or if the effect any processing is to breach a legal obligation3. For
public bodies such as local authorities a key question in considering
compliance with the principle is whether or not they have the power, or
vires, to carry out processing. Any processing which is itself ultra
vires, or is carried out for a purpose which is (page break)
Footnote (2 Paragraph 1 of Part I of Schedule 1 to the Data Protection
Act
1998
3 For a full account of the Commissioner's position, you should read
"Private Lives and Public Powers" published by the Commissioner in 1997.
August 2004)
page 2
continued:
itself ultra vires, will necessarily breach the first data protection
principle by virtue of the fact that it is unlawful. The Commissioner's
Enforcement Policy
13. Breaches of the data protection principles are not criminal
offences.
However, where he considers that there has been a contravention of one
or
more of the principles the Commissioner does have the power to serve
enforcement notices specifying steps to be taken to rectify the effect
of
the contravention and to prevent further contraventions taking place.
14. Before taking enforcement action the Commissioner must consider all
the relevant circumstances, which would include any consent given by the
Council Tax payer to a secondary use of the data and whether there had
been any damage or distress caused to data subjects. The Commissioner is
not aware of any allegations of widespread or significant areas of
complaint about, or abuses of, Council Tax data by local authorities. In
view of that, he does not intend to follow this advice by a compliance
investigation of authorities' uses of Council Tax data. However this
does
not mean that he will not take enforcement action in this area, for
example following a complaint from a data subject4.
Conclusion
15. The Commissioner recognises that the restrictive nature of the
advice
which he has received and of the difficulties which this may cause
Councils. The Commissioner also recognises that the effect of this
advice
may run counter to the encouragement given to public bodies in the
Modernising Government White Paper to share and make more effective use
of
information which they hold. He does, however, draw attention to the
commitment in the White Paper to: "provide a proper and lawful basis for
data sharing where this is desirable, for example in the interest of
improved service or fraud reduction consistent with our commitment to
protect privacy."
16. The Commissioner would therefore advise local authorities which wish
to use personal data held for Council Tax purposes for a secondary
purpose
to make their representations for a change in the law to the government
through the usual channels.
17. While the Commissioner's compliance staff will attempt to answer any
practical questions which arise from this advice and which are not
covered
by the Annex, they will be unable to enter into more general discussion
concerning the legal opinion received by the Commissioner which forms
the
basis of this advice. If authorities wish to make further legal points
or
raise other points for consideration, they are asked to do so in writing
to the Commissioner's Legal Department. (page break)
Footnote 4 The Commissioner's enforcement policy is set out in an
Enforcement Statement which is available on the Information
Commissioner's
web site
August 2004
page 3
Hope this helps.
Lawrence
Lawrence W. Serewicz
Scrutiny Manager
Management Support Unit
Wear Valley District Council
01388-761-985
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