Not particularly a response to Lawrence's contribution, but a general one:

I think the DPA prioritises disclosure of third party material over
non-disclosure. As I read it, s.7 (4) says (paraphrased) that if the third
party has consented to the disclosure you *must* disclose. If they have not
consented (perhaps because you couldn't ask them, or were confident that you
could predict their response, or that there were no possible legitimate
objections) you *must* disclose if it is reasonable to do so. If they have
expressly withheld consent you must tread carefully, but even in that case
it may be reasonable to disclose without consent.

If I'm right, and the test of reasonableness trumps consent, then a lot of
subject access dilemmas become a lot easier.

I'd be interested to know whether I'm out on a limb here, or whether others
agree.

Paul Ticher
0116 273 8191
22 Stoughton Drive North, Leicester LE5 5UB


----- Original Message -----
From: "Lawrence Serewicz" <[log in to unmask]>
To: <[log in to unmask]>
Sent: Friday, January 22, 2010 4:05 PM
Subject: Re: Third party permission to disclose


Dear All,

I have been thinking about DP and Access to records legislation. What about
a situation where someone wants to see a file note created on their account.
I will give two different scenarios. The first is social care, the second is
benefits.

In the first, someone calls social services and expresses concern to the
care worker about a relative. They say that they are worried about how the
relative's partner is treating them and concerned about that they are being
cut off from their relatives. The phone call is noted and then entered on
the social care file. Social worker visits the client. Client is told that
someone has called expressing concern about her. The Client then becomes
upset because she believes her family (or someone) is meddling and making
slanderous or libelous allegations about the partner and asks to see a copy
of the file note to seek legal action on the allegations.

The second is a couple split up and the husband moves out. However, he
leaves no forwarding address and they remain joint owners of the home.
Council tax comes due and the wife calls the council and explains that the
husband moved on on x date so council tax should be reduced or he should be
pursued for his half. File note is duly created noting the date husband
vacated home. Husband is then pursued for his share. He seeks copy of file
note wanting to know what it says and when it was entered. The content is
simply that the wife informed the council that he left the home on the date
nothing more.


Both have DP implications. In the first, I could see redacting the 3rd
party information and still supplying the information i.e. enough so that
they cannot identify the source. In the second, the 3rd party is known i.e.
the wife so I cannot redact that in any way that the applicant would not
know the wife submitted the material. For example, we have a note on your
account showing you moved out on x date. What? Who told you that? I want to
see the file note.

In the first I could proceed, but in the second would I be better using
s.7(6)(a)? Or have I over analyzed the second and it is something that would
be routinely disclosable in any circumstance?

Any guidance would be appreciated.

Thanks

Lawrence


Durham City of Culture - Back the Bid: register at www.durham.gov.uk.

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