Good stuff thanks
Not sure it works in s29 (3) cases because of 3 (1) (d)
Is the information going to be published relating to s29 (3)? Also if a crime rather than unlawful. I can fail to pay the parking meter. This is unlawful, but it is not a crime. Remember that 29 (3) is about *criminal* activity real or alleged.
I think the SI works in many areas and serves a purpose however I am uncertain that it would apply in this case for these reasons.
Happy to learn otherwise and very glad to be reminded of this SI.
Best
Lawrence
Lawrence W. Serewicz
Principal Information Management Officer
Room 4/140
Durham County Council
DH1 5UF
0191-372-8371
----- Original Message -----
From: Doherty Michael (EAST KENT HOSPITALS UNIVERSITY NHS FOUNDATION TRUST) <[log in to unmask]>
To: Lawrence Serewicz
Sent: Fri Nov 04 18:22:59 2011
Subject: RE: [data-protection] Are police really charging for s.29(3)? Is this possible? (long post)
Hello Lawrence,
Still at work, so not a lenghty reply, as there will be beer at the end of the tunnel. The Schedule 3 condition is provided by the Data Protection (Processing of Sensitive Personal Data) Order 2000. It's the first condition.
Regards,
md
Michael Doherty
Information Governance Manager
East Kent Hospitals University Foundation Trust
Kent & Canterbury Hospital
Ethelbert Road
Canterbury
CT1 3NG
Tel (direct dial): 01227 783142
________________________________________
From: This list is for those interested in Data Protection issues [[log in to unmask]] On Behalf Of Lawrence Serewicz [[log in to unmask]]
Sent: 04 November 2011 17:55
To: [log in to unmask]
Subject: [data-protection] Are police really charging for s.29(3)? Is this possible? (long post)
Dear All
Thanks for the posts on this thread. Four things that puzzles me about the thread (There is a lot that puzzles me, but that is for another post :) ).
First, I write to the police requesting that they supply the information, which is personal information and therefore exempt under the FOIA. However, I ask that they consider s.29 (3) as an exemption to those data protection rights of the individual i.e. non-disclosure. If they agree, are they then responding to an FOI request? If so, are they required to provide the information for free? My request is in writing, it is stating what I want, and I am giving them the exemption for the data protection act, which would override any concerns about personal information.
I would be asking the police to explain under which regime are they disclosing information to me for a fee. It cannot be under the Data Protection Act because I am not requesting the information about myself. What s.29 (3) is doing is allowing them to disclose the information and overcome the DPA restrictions. Therefore, they are either disclosing under the EIR or FOIA. I would guess the FOIA. If it were neither, then it would need to be clarified. They could state that they are not providing it under either regime, but they would have to explain why my request for information is being processed in this way for a fee.
Perhaps I have over analyzed this issue, but it looks like FOIA to me and they have no basis to impose a fee unless they have clearly explained by they are charging such a fee. If the fee is not in the fees and charges on their publication scheme, then there could be an argument to have them provide it for free.
Second, there is a subtle problem to this transaction. The Police are not sharing the information; they are providing it in exchange for a fee. As such, they have sold personal information to the applicant. As such, the transaction creates a different relationship than if they shared the information, with an expectation of confidence for the handling of personal information. Perhaps this is a going to astray, but there has to be something to the fact that they are selling the information rather than sharing it or disclosing it.
Third, I think there is a deeper problem to s.29 (3) requests. Perhaps this is beyond this scope of this question, but it needs to be considered. If I come to the police and I cite s.29 (3) with the claim that I need the personal information because the person is alleged to have committed a crime, is that information now sensitive personal information? Sensitive personal information has as one of its categories "the commission or *the alleged commission* by the data subject of any offence." If I have cited an offence, which I may require from now on to be sure that I am processing s.29(3), I need to consider what condition from schedule 3 is in place perhaps 3.6, but these would need to explained so that schedule 3 can be met. The s.29 (3) does not invalidate the need to meet schedule 2 or schedule 3. ["exempt from the first data protection principle (except to the extent to which it requires compliance with the conditions in schedule 2 and schedule 3)] In that scenario, how does the data controller, the police, satisfy itself that I am able to obtain this sensitive personal information (as it relates to an alleged criminal activity) to defend my legal rights? However, it raises a very deep and disturbing question relating to the police selling s.29 (3) information.
Finally, the most brutally obvious question emerges. How do I request personal information relating to a crime or a potential crime from the police and they provide it? Why are they not investigating the crime or the alleged crime? I am struggling to understand a police force that is charging people £75 to obtain personal information under s.29 (3) prevention of crime and they are not investigating that crime for alleged crime? Does that strike anyone else as strange?
I would be grateful to hear from others on these points and quite happy to be corrected on these issues. I think s.29(3) is perhaps being used in a way that is not entirely in line with the legislation and what it intended.
Best,
Lawrence
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