Alternatively, assume that passing data to a Data Processor does fall within the definition of processing (the simplest option) and agree with the Information Commissioner that there are so many bits missing from Schedule 3 + SI2000 no.417 that the provisions for sensitive data are effectively a dead letter. Paul Ticher 0116 273 8191 www.paulticher.com 22 Stoughton Drive North, Leicester LE5 5UB For continuous priority support on Data Protection, sign up to my support service: www.paulticher.com/data-protection-services ----- Original Message ----- From: "Marchini, Renzo" <[log in to unmask]> To: <[log in to unmask]> Sent: Monday, September 17, 2012 9:46 AM Subject: Re: Outsourcing There is another view to that expressed in out-law.com. Their analysis depends on the passing of data by a controller to a processor itself being an act of "processing" for which you need to find a legal basis (schedule 3). If it is, then of course, many, many, many outsourcings which happen on a daily basis could not take place - since it is almost impossible to find a schedule 3 condition. (The problem does not arise for non-sensitive data since you could generally rely on para 6 of schedule 2). Instead, one can take the view that that passing (of data from controller to processor) is not an act of "processing". You then don't need to find a schedule 3 condition. There is logic in this view: the controller remains responsible for the act of the processor, the controller still needs to comply with paras 11 and 12 of schedule 1 and so on, data subject's are not prejudiced since all other provisions of the DPA apply (including organizational and technical security and so on - which may be the real issue in this news story). There is support in the language of the definitions: "processing" doesn't expressly refer to "passing" data (by any terms) - the closest you get is "disclosure" in para (c) of Section 1(1) - but giving it to a processor (acting on a controller's behalf only) can hardly be called "disclosure". The introductory words before the examples in (a) to (d) are likewise a little difficult to make clearly fit this situation: giving data to a processor to act on a controller's behalf is not "obtaining, recording or holding". (It is true that the processor "holds" the data - but there is no need to find a schedule 2 or 3 condition in the hands of the processor - since it is only the controller that needs to have the legitimizing basis). It might, just, be the "carrying out of an operation" - but that to me implies some sort of use of the information in the data. I realize this is a rather pragmatic analysis to get out us of the need to find a schedule 3 basis, but how else does one do it? Renzo Marchini Counsel Dechert LLP +44 (0) 20 7184 7563 direct +44 (0) 20 7184 7001 fax [log in to unmask]<mailto:[log in to unmask]> www.dechert.com<http://www.dechert.com/> From: This list is for those interested in Data Protection issues [mailto:[log in to unmask]] On Behalf Of Ray Cooke Sent: 17 September 2012 08:48 To: [log in to unmask] Subject: Re: [data-protection] Outsourcing V. interesting. The reference in the article to "sections 11 and 12 of the DPA" is not quite right though, is it? This must be a reference to paras 11 and 12 of Schedule 1, Part II which set out the requirements for data processors relating to the seventh, security, principle. These are ingrained in my memory because of the need to bang on so much about the issues relating to outsourcing to data processors. Ray Cooke tel: +44 (0)1865 484354 fax: +44 (0)1865 483330 www.brookes.ac.uk<http://www.brookes.ac.uk> On 17 September 2012 08:15, <[log in to unmask]<mailto:[log in to unmask]>> wrote: ICO's 'pragmatic' view of outsourcing rules on sensitive personal data processing may be without legal basis, claim experts http://www.out-law.com/en/articles/2012/september/icos-pragmatic-view-of-outsourcing-rules-on-sensitive-personal-data-processing-may-be-without-legal-basis-claim-experts/ Regards Ibrahim Hasan Www.actnow.org.uk<http://Www.actnow.org.uk> ________________________________ All archives of messages are stored permanently and are available to the world wide web community at large at http://www.jiscmail.ac.uk/lists/data-protection.html Selected commands (the command has been filled in below in the body of the email if you are receiving emails in HTML format): * Leaving this list: send leave data-protection to [log in to unmask]<mailto:[log in to unmask]&BODY=LEAVE+data-protection> * Suspending emails from all JISCMail lists: send SET * NOMAIL to [log in to unmask]<mailto:[log in to unmask]&BODY=SET+*+NOMAIL> * To receive emails from this list in text format: send SET data-protection NOHTML to [log in to unmask]<mailto:[log in to unmask]&BODY=SET+data-protection+NOHTML> * To receive emails from this list in HTML format: send SET data-protection HTML to [log in to unmask]<mailto:[log in to unmask]&BODY=SET+data-protection+HTML> All user commands can be found at http://www.jiscmail.ac.uk/help/commandref.htm and are sent in the body of an otherwise blank email to [log in to unmask]<mailto:[log in to unmask]> Any queries about sending or receiving messages please send to the list owner [log in to unmask]<mailto:[log in to unmask]> (Please send all commands to [log in to unmask]<mailto:[log in to unmask]> not the list or the moderators, and all requests for technical help to [log in to unmask]<mailto:[log in to unmask]>, the general office helpline) ________________________________ ________________________________ All archives of messages are stored permanently and are available to the world wide web community at large at http://www.jiscmail.ac.uk/lists/data-protection.html Selected commands (the command has been filled in below in the body of the email if you are receiving emails in HTML format): * Leaving this list: send leave data-protection to [log in to unmask]<mailto:[log in to unmask]&BODY=LEAVE%20data-protection> * Suspending emails from all JISCMail lists: send SET * NOMAIL to [log in to unmask]<mailto:[log in to unmask]&BODY=SET%20*%20NOMAIL> * To receive emails from this list in text format: send SET data-protection NOHTML to [log in to unmask]<mailto:[log in to unmask]&BODY=SET%20data-protection%20NOHTML> * To receive emails from this list in HTML format: send SET data-protection HTML to [log in to unmask]<mailto:[log in to unmask]&BODY=SET%20data-protection%20HTML> All user commands can be found at http://www.jiscmail.ac.uk/help/commandref.htm and are sent in the body of an otherwise blank email to [log in to unmask]<mailto:[log in to unmask]> Any queries about sending or receiving messages please send to the list owner [log in to unmask]<mailto:[log in to unmask]> (Please send all commands to [log in to unmask]<mailto:[log in to unmask]> not the list or the moderators, and all requests for technical help to [log in to unmask]<mailto:[log in to unmask]>, the general office helpline) ________________________________ This e-mail is from Dechert LLP, a law firm, and may contain information that is confidential or privileged. 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