New Data Protection Notification Fees

The notification fee for making a notification to the Information Commissioner (formally a data protection registration) is currently £35 per year.  However, if you are a Tier 2 data controller, as defined in new  amending regulations, that will go up from 1 October 2009 to £500.

This higher fee will catch entities with a turnover of more than £25.9 million and 250 or more staff, or public authorities with more than 250 staff.

If you think £500 is too much, dust off the original regulations to see if you are within the scope of the Schedule.

An FOI opportunity missed?

The Minister of Justice, Jack Straw, has disclosed in an audit report that 954 convicted criminals who had been released on licence from prison and then recalled, are still at large.  The Daily Mail, in its article on the story, reported that the Durham and Surrey police forces cited the Data Protection Act 1998 as their reason for not being able to name criminals in their area who are at large.

We suspect that the Mail’s journalists must have contacted the police forces quoted in the story by telephone, which may explain the citing of the Data Protection Act 1998 (“DPA”) to decline the requested disclosure.   However, there is an argument that the prevention and detection of crime exemption at s.29 of the DPA could have been used to allow the disclosure, had the Durham and Surrey forces been so minded.

If the constabularies had been asked for the criminals’ details in writing, these would have been a freedom of information requests under the Freedom of Information Act 2000 (“FOIA”)(see s.8(1)).  It would have been interesting to see their reasoned explanation for their refusals (as required under s.17 of FOIA).   

The personal information exemption that a constabulary could have cited to deny the Mail the details (s.40 of the FOIA) is notoriously difficult to understand and apply.  However, it is arguable that none of the absolute exemptions from disclosure under s.40 apply, as none of the data protection principles would have been breached by a disclosure.  Instead, only the public interest test of the qualified exemption in s.40 would have applied.

It’s an interesting question:  is the public interest better served by having these criminals’ details in the public domain rather than by preserving their data protection rights (and arguably their safety and public order) by having their details retained?  Given that some other forces have published this information, it would appear the public interest may lie in disclosure.

Perhaps the Mail should pursue its story, using a written request under FOIA for these criminals’ names?

"Mathematophobia"?

We were going to comment here on the recent House of Lords case of Chartbrook Limited -v- Persimmon Homes Limited, but instead we note that John Halton of Cripps Harris Hall LLP has given an excellent summary in his blog.

However, we wish to emphasise his point about legal drafting.  We do not understand the phobia that many lawyers appear to have about using mathematical expressions in commercial contracts.  After all, massive legal expenses were incurred in Chartbrook to take the case all the way to the House of Lords as a result of the ambiguity in the definition:

Additional Residential Payment (“ARP”) means “23.4% of the price achieved for each Residential Unit in excess of the Minimum Guaranteed Residential Unit Value less the Costs and Incentives.”

The whole case hinged on the question of what the percentage applied to. What did the words mean?  If we represent:

R = price achieved for each Residential Unit (£23.849m)
M = Minimum Guaranteed Residential Unit Value (£4.684m)
C = Costs and Incentives (approx £2,500 – exact figure not given in the judgement)

then the value of ARP could have been:

1.  ARP = 23.4% *(R – M – C) = £4,484,025

2.  ARP = (23.4%*(R – M)) – C = £4,482,110

3.  ARP = (23.4%*R) – M – C = £  894,166

The maximum difference in interpretation of the definition was therefore £3,589,859.  How much simpler would it have been to have defined ARP by the correct mathematical expression intended by the parties, as set out above, instead of by unpunctuated and unbracketed words?