PDA

View Full Version : Section 35 Data Protection Act



islandgirl
15-03-2006, 18:31 PM
Within a previous thread, Davidjohnbutton (who has helped me with advice in the past!) mentioned that you can ask your local council to give you the address of a previous tenant against whom you have a CCJ. I have found section 35

35. - (1) Personal data are exempt from the non-disclosure provisions where the disclosure is required by or under any enactment, by any rule of law or by the order of a court.
(2) Personal data are exempt from the non-disclosure provisions where the disclosure is necessary-
(a) for the purpose of, or in connection with, any legal proceedings (including prospective legal proceedings), or
(b) for the purpose of obtaining legal advice,
or is otherwise necessary for the purposes of establishing, exercising or defending legal rights.

If I write to my local council quoting this (I know my previous tenant is claiming HB in my area but don't know exactly where he is) are they obliged to give me his address? Whenever I have contacted them about him they have said that due to the DPA they can't give me any info!
Would very much appreciate your views!

davidjohnbutton
15-03-2006, 20:04 PM
Copy the text into the letter requesting this information and thus quote it to the council. A lot of staff in the local councils have simply been told "You must not tell anyone anything because of the Data Protection Act" - so here you are identifying the exact bit of legislation that says you can be given this information for legal purposes.

You may have to approach the Data Protection Officer for the local authority as they will be usually the only ones clued up enough to see that they can release the info.

However, S35 does not COMPEL release of the info - it merely states it CAN be released effectively without breaking DPA law. So if they still refuse to release it, you will have to make a complaint to the Information Commissioner and ask for a ruling which the local authority will have to comply with.

settloe_99
16-01-2007, 11:04 AM
I've requested a forwarding address from a council we deal with for a tenant who has vacated owing arrears and have quoted Section 35 of DPA.

The response I've had back is as follows:

"I am unable to provide you with her forwarding address as Section 35 of the DPA does not cover civil recovery matters."

Now it might be me but having read Section 35 no where does it state that it doesn't apply to civil recovery matters. So, I wrote back asking them where it states that Section 35 doesn't apply to civil recovery matters and have got this back from them:

"I can confirm I have contacted the Councils Data Protection office who have advised me that the Council is unable to provide you with a current for XXXX under Section 35(2)(a) of the Data Protection Act"

Talk about avoiding the question! I have to admit I've tried this with a few councils now and so far only one has written back to advise me they would provide a forwarding address if they had one. All the rest have said they can't because of the DPA.

jeffrey
16-01-2007, 11:21 AM
I've requested a forwarding address from a council we deal with for a tenant who has vacated owing arrears and have quoted Section 35 of DPA.

The response I've had back is as follows:

"I am unable to provide you with her forwarding address as Section 35 of the DPA does not cover civil recovery matters."

Now it might be me but having read Section 35 no where does it state that it doesn't apply to civil recovery matters. So, I wrote back asking them where it states that Section 35 doesn't apply to civil recovery matters and have got this back from them:

"I can confirm I have contacted the Councils Data Protection office who have advised me that the Council is unable to provide you with a current for XXXX under Section 35(2)(a) of the Data Protection Act"

Talk about avoiding the question! I have to admit I've tried this with a few councils now and so far only one has written back to advise me they would provide a forwarding address if they had one. All the rest have said they can't because of the DPA.

Act does not define "legal proceedings". The expression is therefore capable of covering civil recovery etc., not just criminal matters, so you are correct and the Council aren't.

islandgirl
16-01-2007, 12:44 PM
Settloe - I had more or less the same reply. I believe that they are not OBLIGED to tell you but are exempt from prosecution if they do in these circumstances. I know my ex tenant is claiming benefit from them but they will not give me his address - where can you go from here? Nowhere, methinks. Sorry your council is as bad as mine!

Worldlife
16-01-2007, 13:45 PM
Maybe write to the Chief Executive of the Council (quoting section 35) and stating that you have received legal advice on this matter and the legislation concerned does not differentiate between civil and criminal law.

State that should they continue to refuse to provide the information you have requested without a full and proper reason you will have to contemplate complaint to the Local Government Ombudsman. A basis for this complaint will be that the Council should not protect the anti-social elements of society who do not meet their legal obligations to others.

Suggest that the failure to provide the required information is resulting in loss of rental income to yourself and the amount of this loss will be pointed out should it be necessary to make complaint to the Local Government Ombudsman.

It is not sufficient to provide an opinion from an individual employee of the Council who may, or may not, have all the necessary technical and legal knowledge or the experience to make a final decision on this matter.

settloe_99
17-01-2007, 07:27 AM
Thanks for the advice Worldlife! Think I'll be dropping a line to the Chief Executive today.

islandgirl
17-01-2007, 09:41 AM
Thanks Worldlife from me too - much appreciated. Settloe - please tell us how you get on. Thanks

Worldlife
17-01-2007, 10:08 AM
Thanks appreciated :)

....... maybe send copies to the Chairman of the Council or the Leader of the Opposition party. for the reason that this is both a political and an administrative matter Have regard however that Labour may favour the tenant but hopefully the Conservatives support the Landlord but the Lib/Dems will be neutral)

Perhaps you could both let us know the outcome.

settloe_99
17-01-2007, 12:22 PM
I'll be sure to post the reply when I receive it back! Thanks again

settloe_99
27-03-2007, 13:50 PM
Well eventually I've had a reply off the council and it goes something like this!

"Although your application is made pursuant to section 35(2)(a) of the Data Protection Act 1998 (DPA), I consider that it would have been more appropriately lodged as a request under section 1 of the Freedom of Information Act 2000, particularly as section 35 of the Data Proctection Act 1998 does not place a legal obligation on the Council to release information. I therefore propose to respond to it as a Freedom of Information request.

Your request for information regarding XXXXXX formerly of XXXXX has now been considered and it has been determined that the Council is not obliged to supply the information you have requested.

In accordance with the Freedom of Information Act 2000 this letter acts as a Refusal Notice.

The exemption applied is section 40(2)(b) of the Freedom of Information Act 2000.

This exemption applies because the information that has been requested is personal information and could not be disclosed without contravening the data protection principles contained in schedules 1 and 2 of the Data Protection Act 1998. The exemption applied to the non disclosure provisions (as defined by section 27 of the DPA 1998) by section 35(2) of the Data Protection Act 1998 is not satisfied in terms of necessity and is not therefore applicable in this case. Furthermore the exemption provided by section 35(2) of the Data Protection Act 1998 does not release the Council from its obligation to comply with Schedule 2 of the Data Protection Act 1998.

I apologise that your request will not be met but if you have any further information needs in the future then please contact me."

So.... it looks like the next step is to appeal!

Worldlife
27-03-2007, 15:53 PM
:( Bad luck!!!


Is this a reply from the Chief Executive or a stereotyped reply from a specific Department?

My first reaction is that the first paragraph is wrong. We have mentioned elsewhere that under certain circumstances their is a legal obligation to disclose information that would otherwise be subject of protection under the Data Protection Act.

Do they give details of the appeal procedure?

If not state your case again to the Chief Executive (copy to Chairman of the Council) giving the reasons why you require the information you are requesting.

Advise that you are contemplating making a complaint to the Ombudsman and you would appreciate full clear and valid reasons why your particular request is not being complied with rather than hiding behind legal quotations.

islandgirl
27-03-2007, 17:23 PM
Thanks for coming back Settloe and sorry it's a no - I cannot understand why councils are protecting people who refuse to pay LL what they owe and seem to be above the law. What has the council got to lose??? If it gives the address in relation to court action it cannot be prosecuted or sued by the ex tenant. It seems to me that the council looks after the dregs and spongers of society and does not care about decent people who just want to claim what they are owed and no more.

davidjohnbutton
28-03-2007, 00:43 AM
Report the council to the Information Commissioner and make a formal complaint to the council's chief executive!

settloe_99
28-03-2007, 07:49 AM
Thanks for your comments everyone. My original letter was addressed to the Chief Executive but the reply I have got is from the Legal & Democratic Services Department.

The letter goes on to say I can appeal to the Freedom of Information Officer at the council or I can appeal straight away to the Information Commissioner and gives me there details to do this.

Do you think it's worth appealing to the Freedome of Information Officer at the council or should I just go straight to the Information Commissioner and copy it to the Chief Exec?

Thanks

Worldlife
28-03-2007, 08:25 AM
It might be worth going straight to The Information Commissioner on the basis that there is evidence to suggest that this is not the only Council failing to meet its obligations under the Data Protection Act where s35 applies


35. - (1) Personal data are exempt from the non-disclosure provisions where the disclosure is required by or under any enactment, by any rule of law or by the order of a court.
(2) Personal data are exempt from the non-disclosure provisions where the disclosure is necessary-
(a) for the purpose of, or in connection with, any legal proceedings (including prospective legal proceedings), or
(b) for the purpose of obtaining legal advice,
or is otherwise necessary for the purposes of establishing, exercising or defending legal rights.