I wonder if judges in the Tribunal, as opposed to ICO staff, are more used to considering questions about deleted information and searches of back-ups, because the subject arises quite often in litigation (especially e-discovery in commercial litigation). Whole cases have turned on the subject (e.g. Digicel).
I think it's important to note there might not be a definitive rule. In Keiller the Tribunal approved Harper where it was held that "it will be a matter of fact and degree, depending on the circumstances of the individual case whether potentially (our emphasis) recoverable information is still held for the purposes of the Act".
Jonathan Baines
Legal and Democratic Services
Buckinghamshire County Council
01296 383681
-----Original Message-----
From: This list is for those interested in Data Protection issues [mailto:[log in to unmask]] On Behalf Of Maurice Frankel
Sent: Wednesday 25 January 2012 16:04
To: [log in to unmask]
Subject: Re: [data-protection] FW: SARs and back up tapes
Yes, its complicated. In fact, the UK Information Commissioner appears to take the same view as the Scottish Information Commissioner about backups. But on both occasions when the IC's view have been tested before the Tribunal, the Tribunal has overturned the IC's rulings. The Tribunal is part of the DPA enforcement system, in Scotland as elsewhere in the UK (and SIC is not) so to the extent that one is trying to anticipate the position in relation to an SAR, the Tribunal's views have particular relevance.
Maurice Frankel
On 25 Jan 2012, at 15:08, George Ross wrote:
>> Not sure about SARs, but in relation to FOI requests, at least under
>> the UK Act, the Tribunal has held that information on backup tapes is
>> held for FOIA purposes.
>
> OTOH, the Scottish Information Commissioner's FAQ pages state: "Where
> a public authority has deleted an e-mail or an electronic file and it
> can only be retrieved by an IT specialist, the Commissioner takes the
> view that the information is no longer held by the public authority."
> So it would depend how your backups were structured, and what the
> normal access mechanism would be.
>
> --
> George D M Ross MSc PhD CEng MBCS CITP, University of Edinburgh,
> School of Informatics, 10 Crichton Street, Edinburgh, Scotland, EH8 9AB
> Mail: [log in to unmask] Voice: 0131 650 5147 Fax: 0131 650 6899
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