THE costs to Scottish Borders Council of any appeal against the recent £250,000 fine for the bungled disposal of thousands of personal records, will be minimal, according to the local authority, writes Mark Entwistle.
The Information Commissioner’s Office issued the fine in September, after files relating to the council were discovered in a recycling bank in the Lothians.
The fine was paid early in order to achieve a discount of £50,000, but was done so with the caveat that SBC still reserved the right to appeal, which was lodged in a written submission to the Information Tribunal.
However, the ICO confirmed to TheSouthern this week that, under the discounted fine payment scheme, there is no provision which allows a data controller to make a payment subject to reservations, for example, by reserving a right to appeal against the penalty.
“The effect of such reservations would be to nullify the advantages which the scheme is intended to achieve,” said the ICO spokesperson.
But SBC Chief Executive Tracey Logan has queried that position, saying the legal situation when it comes to many aspects of monetary penalties is not clear.
“The monetary penalties regime has not yet been tested in the courts or elsewhere,” she told us. “ There has, as yet, been no ruling by the relevant appellate tribunal, the Information Tribunal, on any appeal against any aspect of a monetary penalty. We understand the first hearing, involving another public organisation, is due to take place early next month.
“Discounts for prompt payment of data protection monetary penalties are merely one area in which clarification is urgently needed.
“Before the council filed its appeal, it asked for clarification from the Information Tribunal and from the Information Commissioner as to whether payment of the £250,000 pending the appeal was possible and whether, after the appeal ruling, a further 28-day prompt payment discount would then run on the final amount – regardless of whether it was the same as, or different from the original penalty.
“Both the Information Tribunal and staff at the ICO’s office were unable to answer the query.
“Therefore the council took the view that it would pay the monetary penalty, but we also stated in an undertaking sent to the ICO at the same time, that the undertaking was only given pending the outcome of our appeal.
“SBC feels that aside from any other issue, by withdrawing a prompt payment discount from anyone who appeals a monetary penalty, the Information Commissioner is acting unfairly and is effectively imposing an additional sanction on the organisation that has appealed.
“Our understanding is that if SBC wins, both sides have to pay their own costs, but we feel it is important to stress that the council is proceeding by way of comparatively quick and inexpensive written procedure, not by way of the alternative hearings procedure which involves witnesses. Therefore the costs to SBC should be minimal.”