Yes, there was some discussion about this on twitter* a while ago.
Regarding costs, list members might want to read - if they haven't already - Tim Turner's extraordinary blog post on the costs incurred by Brighton and Sussex University Hospital Trust in their abortive appeal - £168,000. (I go a bit light-headed every time I see that figure). This means that, effectively, they paid half a million £s on a case which, if they'd paid the early discount, would have cost them about £250k.
http://2040infolawblog.com/2012/11/11/klf-revisited/
Central London Community Healthcare NHS Trust are believed to be using the same firm to assist with their appeal, and someone has made an FOI request to them for the fees they've paid.
It looks like the appeal turns on a possible loophole, whereby the argument is - as I understand it - that if a breach is self-referred to the ICO he is barred under his own statutory guidance from issuing a CMP.
My reckoning is that the argument would be that a self-referral is a referral of a discrete incident of processing under section 51(7) DPA, for the ICO to determine whether the processing accorded with good practice. His statutory guidance says that he will not issue a CMP if it comes to light as part of a section 51(7) assessment. Normally section 51(7) is used as a full audit provision, but the words could be construed so as to limit the assessment to a single act of processing (e.g. a data breach). Spurious perhaps, but if a Tribunal is persuaded of it it would negate the biggest enforcement stick the ICO has.
See http://www.computerweekly.com/news/2240171109/Will-the-ICOs-big-stick-approach-backfire-long-term which strangely says it is a unnamed Trust which is appealing.
Jonathan Baines
Complaints and Information Rights Officer
Legal and Democratic Services
Buckinghamshire County Council
Ground Floor, New County Offices
tel: 01296 383681
*I continue my quest to persuade Chris that twitter is an excellent resource/tool
________________________________
From: This list is for those interested in Data Protection issues [mailto:[log in to unmask]] On Behalf Of Chris Pounder
Sent: Thursday 15 November 2012 10:21
To: [log in to unmask]
Subject: [data-protection] Hawktalk: A curiosity concerning the Monetary Penalty Notice issued to Scottish Borders Council
Just published on Hawktalk: http://amberhawk.typepad.com/amberhawk/
The Scottish Borders Council, through its Appeal against its recent Monetary Penalty Notice (MPN), could undermine the "prompt payment" discount offered by the Information Commissioner.
If interested, follow the link
C
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