Wednesday, May 12, 2010

Another drafting blunder by the Department for Transport leads to breaches of the Data Protection Act

... another iceberg spotted.

It was mentioned at the time that the Traffic Management Act 2004 had been ill-conceived and there had been little proper consultation. The Operational Guidance similarly had been pulled together in a rush and dropped on local authorities toes just weeks before the legislation came into effect.

Now we can reveal a major blunder by the draftsmen which has compromised local authorities who may now have breached the Data Protection Act by acquiring data from the DVLA to which they weren't entitled and the DVLA for releasing data which they weren't entitled to release.

The 'Current' and 'Proposed' content can be seen below ...

The issue is quite simple.

When a PCN is issued there is a period of 28 days which MUST expire before a Notice to Owner can be issued.

The current drafting gives councils an illegal 'head start' on acquiring keeper details, in conflict with the legislation.
  • The PCN, if attached to a vehicle, can be removed by the driver who may or may not be the registered keeper and who may decide to pay within the 28 days … perhaps to avoid the Registered Keeper being aware.

  • However, in law the Notice to Owner (and therefore the keeper details) CANNOT be requested until after the 28 day period has expired because the law does not permit a Notice to Owner to be issued before then. The Guidance is in conflict with the law.
  • Because the Registered Keeper is responsible in law any attempt to acquire such details prior to the 28 days will constitute procedural impropriety.

The Guidance gives local authorities a ‘head start’ but this creates a breach of the Data Protection Act because the keeper may be provided details of the movements of the driver of the vehicle. This ‘sharing’ of data will constitute an offence. I am sure the ICO will wish to comment on the implications under DPA

the big blunder is the fact that any local authority who has acquired the data early will be guilty and the PCN will have to be cancelled AND, for those who have paid, monies refunded.

A simple FoI will reveal the extent but I would anticipate that the majority of councils would have done it and with £1.3bn PCNs a year this will run into tens if not hundreds of £millions.

Perhaps this new Government will consider a shake-up of the Department responsible for yet another shambles. Quite clearly Captain Smith has not been control of this ship as another iceberg approaches.
The same draftsmen seem to have forgotten that at Annex E in the same guidance they remind local authorities to comply with TSRGD 2002 AND that CPZs should be no bigger than a dozen streets!

The leaked document is shown below in full ...

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