Thanks Lawrence - interesting example.
I personally think it's a stretch too far, but I would like to see the offence extended to encompass this.
JB
From: Lawrence Serewicz [mailto:[log in to unmask]]
Sent: 19 February 2015 13:16
To: Baines, Jonathan; [log in to unmask]
Subject: RE: s55 "obtaining"
Jon,
Interesting question. I posed this to the ICO at the recent session here in the North East.
I posed it in the context of a data breach in which a person receives post that is not theirs, opens it, and then refuses to destroy or return the personal data.
I suggested to the ICO that the person who had received the personal data incorrectly was a data controller under the Act. They did not see it that way. They appeared to suggest that s.36 would be engaged so that there would be no issue for the ICO to explore.
I had asked the question of whether the ICO would also take an interest in the new DC as well the originating DC who had clearly breached the act by sending the PD to the wrong person ie a breach of P7 as well as (potentially or by implication) s.55.
They did not see it as an issue the ICO would address. However, in the context of dealing with organisations rather than handling specific issues defining a DC in this context, it is understandable when they suggested they would have to check to see what the official ICO position would be.
My view, happy to be corrected, is that s.55 can be applied to retaining. I would suggest that it is a stretch given the person can return the PD so no harm, no foul (so to speak) and as there is an easy and direct remedy (return the material) the point is almost moot. However, I would suggest, strictly speaking (and the law is always strict :)), it would apply as retaining can become disclosure at a later date.
Best,
Lawrence
From: This list is for those interested in Data Protection issues [mailto:[log in to unmask]] On Behalf Of Baines, Jonathan
Sent: 19 February 2015 12:59
To: [log in to unmask]<mailto:[log in to unmask]>
Subject: s55 "obtaining"
Friday question on a wet Thursday...
If someone obtains personal data in circumstances under which they acted in the reasonable but mistaken belief that they had in law the right to obtain it (for instance by saving it to a personal drive on a BYO device), but then retain it when it is clear they have not the reasonable belief that they have in law the right to retain it (i.e. they've been told to surrender it) can they be guilty of a s55 DPA offence?
But more simply, can the meaning of "obtaining" in s55 be extended to "retaining"?
I think not. But if I'm right, is this a lacuna in the law?
(Or, maybe, was the obtaining "reckless"?)
Jonathan Baines
Information Rights Specialist
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