The LA can only use the Section 71 notice for the acquisition of a name and address. Only the Agency can use it to obtain other information
This is an extract from the EA’s guidance on powers in relation to fly tipping: -
1.4 Notice to require information, Section 71
Both the EA and Local Authorities can use S71 notices for the purpose of the
Control of Pollution Amendment Act, to require anyone they consider may be able
to provide them with the name and address of the person using the vehicle at the
time when the offence was committed1
Local Authorities cannot use Section 71 notices for any other purpose whereas the
Agency can use Section 71 notices to obtain any information it reasonable
considers it requires.
From: This list is for those interested in Data Protection issues [mailto:[log in to unmask]] On Behalf Of Phil Bradshaw
Sent: 21 September 2012 11:30
To: [log in to unmask]
Subject: Re: [data-protection] Environmental Protection Act s71 (2) notice
If they are a collection authority that should be enough if they are exercising their s34 functions - see s71(3).
On the face of it you have received a valid notice and must comply with it under the protection of s35 DPA.
If you wish to check under the bed, then you could say to the requester: "You have served us with a notice which purports to be under s71(2) ... but have not to date supplied us with confirmation that you have power to serve such a notice. Before supplying you with personal data we are required by the Data Protection Act to take reasonable steps to ensure we make no unauthorised disclosures, and would ask you again to confirm the basis of your authority, e.g. that you are a collection authority discharging functions under s34B or C of the Act. We hope you can do so before the deadline within the notice. If not we will make the disclosure to you to avoid the sanctions under the Act, unless you withdraw the notice. If it subsequently transpires that you were acting ultra vires we will have to consider whether an offence has been committed under s55 of the DPA and if appropriate report the matter to the Information Commissioner."
----- Original Message -----
From: Ray Cooke
Sent: 09/21/12 10:49 AM
To: [log in to unmask]
Subject: [data-protection] Environmental Protection Act s71 (2) notice
Hello everyone,
Not a Friday question, I'm afraid, but I hope it's not too complicated.
I've received a request for personal data from a District Council related to a fly tipping incident. The request has been accompanied by an Environmental Protection Act 1990 section 71 (2) notice, threatening me, politely, that I'll up before the beak unless I comply within a certain period.
I haven't seen one of these notices before, so I looked up s71 where it says (or so it seems to me) that it gives powers to the Secretary of State and a waste regulation authority. Well I can't see how a District Council is a waste regulation authority, though I suppose they will be a waste collection authority and possibly a waste disposal authority. I'm suspecting the powers have been lawfully delegated in some statute or other, but I don't know where it is.
I asked the District Council if they could confirm that they had the powers under the Act. They too said they thought the powers had been "passed on", but said they would check. But so far no further response and my deadline is rapidly approaching. I fear the cold steel cuffs are already approaching my wrists. And this isn't 50 shades of grey. Can any of you good folk in local authorities help me out here? Does a council have powers under s71?
Ray Cooke
Information Compliance Officer
Oxford Brookes University
Oxford Brookes Information Solutions
Headington Campus
Gipsy Lane
Oxford, OX3 0BP
tel: +44 (0)1865 484354
fax: +44 (0)1865 483330
www.brookes.ac.uk
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