Question 1

CCTV and data protection

Accepted Answer

I am writing regarding CCTV in our large block of 120 flats in Brighton. There are three issues: 1: We – that’s the freehold company – have CCTV installed at the entrance/ lobby area of our block of flats. Do we need to have a specific policy for this and do we need to display notes to let everyone know that there is CCTV? Or are there other issues we need to implement? The aim of CCTV is for security and the recordings are stored for about 4 weeks; 2: A leaseholder has his installed his own CCTV above the entrance to his flat. We’ve had complaints from other leaseholders about this. Do we need to / can we do something about this? 3: Personal data: We are of course holding data about leaseholders, names and addresses, etc. Does this mean that we need to register with the Office of the Information Commissioner (OIC)? FPRA replies: I must admit that I and other advisers at FPRA find it difficult to deal with queries that involve Data Protection issues. This is partly due to the extreme vagueness of the primary legislation on this. The relevant statute law sets out only general principles. The law in practice is how the OIC interprets these principles. It is also difficult because organisations who would prefer not to disclose information blame it on ‘Data Protection’ when there is no basis for this in fact. Individuals then get the idea that ‘Data Protection’ is much wider than it actually is. Unfortunately, leaseholders who are disgruntled with their RMCs then find that this is a convenient tool with which to cause trouble. Anyway, to deal with your queries: 1. CCTV is covered by the OIC and I can do no better than to refer you to some notes on their website that refer to this. These are to be found at: http://www.ico.gov.uk/home/for_the_public/topic_specific_guides/cctv.aspx You will see that the primary requirement is that you have a notice warning the public of the presence of CCTV. There is little point in my repeating or paraphrasing these requirements. 2. Your second point can, I suspect, be answered without any reference to the legislation on Data Protection. If I have correctly understood your query, the camera that the leaseholder has installed is outside his flat, on top of the door, and is therefore in the hallway of the flats. I would need to see a copy of your lease to give a definitive answer on this, but leases of flats almost always include only the interior of the flat (how much is included in a lease is referred to be lawyers as ‘the extent of the demise’). Those that go into more detail sometimes specify whether the front door of the flat belongs to the leaseholder or to the landlord/RMC. If the doorframe belongs to you as the RMC, then it is a trespass for a leaseholder to attach a camera to something that does not belong to him. Even if the doorframe itself is included in the ‘demise’ to him, I would say that having a camera projecting into the hallway is a trespass to the airspace of the hallway, which belongs to the RMC. Leaseholders who put a hanging basket outside their front door, or who put out a stand for pot plants are almost always technically committing a trespass, and the RMC would be entitled to require them to remove it. Leases sometimes contain express covenants to this effect, but, even if they do not, I would say that placing items on land belonging to someone else – even if it only overhangs it – is an act of trespass, and the landowner is entitled to remove the offending item and to return it to its owner, though I would always recommend that one first writes asking the owner to remove it, and, if that is ignored, the landowner writes to the owner again warning him that he will remove it. If the owner insisted on placing it there again a court would, if appropriate, make an injunction requiring its removal. The only circumstances where this would not apply would be if there were, say, a glass fanlight over the front door of the flat, and the leaseholder had installed the camera so that it was immediately behind the glass. I cannot see that any issue of trespass would arise in this case. If this were the case the position would seem similar to that described on the website of the OIC, where a CCTV camera is on one neighbour’s property, but includes in its survey area the garden of another. Boring a hole through the wall of the flat so that a camera could survey the hallway would generally be a trespass to the landlord’s property (on the basis that the thickness of the wall between a flat and the hallway will almost always belong to the landlord); it might also breach the usual covenant against tampering with the main structure of the building. 3. The advice that FPRA has previously received from the OIC is that ‘not for profit’ organisations are not required to register with them. The typical RMC or leaseholders’ organisation would clearly fall within this category. Not-for-profit organisations are, however, required to comply with the eight principles for fair dealing with information. I shall paste in the relevant part of the OIC’s reply: ‘If the company is able to claim the exemption, they must be aware they must still comply with the eight data protection principles of good practice. Also, they are still obliged to respond in 21 days to a written request to provide information that would have been included in the public register if they had notified.’ The eight principles for fair dealing are to be found on the OIC website. I presume that the principle that not-for profit organisations do not have to register with the OIC overrides the reference at http://www.ico.gov.uk/home/for_the_public/topic_specific_guides/cctv.aspx to organisations using CCTV having to register with them – but this sort of confusion is, in my view, typical of anything to do with the OIC. In the previous case FPRA was trying to establish on behalf of a member organisation whether it was a breach of the Data Protection legislation for an RMC to publish a ‘blacklist’ of debtors. The guidance given by the OIC was so vague that it was difficult to establish whether this would be a breach of the legislation or not. On balance I concluded that it was probably not, especially if leaseholders were forewarned that this would happen. I suspect that if you want any further details on CCTV or Data Protection, it would be better if you raised your query direct with them. They do reply eventually, though there is usually quite a delay. As I said, in most cases the answer to any problem will depend on how the OIC interprets the ‘eight principles of fair dealing’. If you do raise a query with them, it would be useful if you would forward a copy of your query and our reply to the FPRA Office, so that we have them for future reference. If you wanted a more definitive answer to point 2 above, I would need to see a complete copy of your lease, preferably including any plan. Finally, I should add that FPRA only advises member associations – we cannot and do not act for them. Opinions and statements offered orally and in writing are given free of charge and in good faith and as such are offered without legal responsibility on the part either of the maker or of FPRA Ltd. Yours sincerely Nicholas T M Roberts, BA, LLM, PhD Legal Adviser, FPRA Ltd.

Question 2

CCTV and data protection

Accepted Answer

I am writing regarding CCTV in our large block of 120 flats in Brighton. There are three issues: 1: We – that’s the freehold company – have CCTV installed at the entrance/ lobby area of our block of flats. Do we need to have a specific policy for this and do we need to display notes to let everyone know that there is CCTV? Or are there other issues we need to implement? The aim of CCTV is for security and the recordings are stored for about 4 weeks; 2: A leaseholder has his installed his own CCTV above the entrance to his flat. We’ve had complaints from other leaseholders about this. Do we need to / can we do something about this? 3: Personal data: We are of course holding data about leaseholders, names and addresses, etc. Does this mean that we need to register with the Office of the Information Commissioner (OIC)? FPRA replies: I must admit that I and other advisers at FPRA find it difficult to deal with queries that involve Data Protection issues. This is partly due to the extreme vagueness of the primary legislation on this. The relevant statute law sets out only general principles. The law in practice is how the OIC interprets these principles. It is also difficult because organisations who would prefer not to disclose information blame it on ‘Data Protection’ when there is no basis for this in fact. Individuals then get the idea that ‘Data Protection’ is much wider than it actually is. Unfortunately, leaseholders who are disgruntled with their RMCs then find that this is a convenient tool with which to cause trouble. Anyway, to deal with your queries: 1. CCTV is covered by the OIC and I can do no better than to refer you to some notes on their website that refer to this. These are to be found at: http://www.ico.gov.uk/home/for_the_public/topic_specific_guides/cctv.aspx You will see that the primary requirement is that you have a notice warning the public of the presence of CCTV. There is little point in my repeating or paraphrasing these requirements. 2. Your second point can, I suspect, be answered without any reference to the legislation on Data Protection. If I have correctly understood your query, the camera that the leaseholder has installed is outside his flat, on top of the door, and is therefore in the hallway of the flats. I would need to see a copy of your lease to give a definitive answer on this, but leases of flats almost always include only the interior of the flat (how much is included in a lease is referred to be lawyers as ‘the extent of the demise’). Those that go into more detail sometimes specify whether the front door of the flat belongs to the leaseholder or to the landlord/RMC. If the doorframe belongs to you as the RMC, then it is a trespass for a leaseholder to attach a camera to something that does not belong to him. Even if the doorframe itself is included in the ‘demise’ to him, I would say that having a camera projecting into the hallway is a trespass to the airspace of the hallway, which belongs to the RMC. Leaseholders who put a hanging basket outside their front door, or who put out a stand for pot plants are almost always technically committing a trespass, and the RMC would be entitled to require them to remove it. Leases sometimes contain express covenants to this effect, but, even if they do not, I would say that placing items on land belonging to someone else – even if it only overhangs it – is an act of trespass, and the landowner is entitled to remove the offending item and to return it to its owner, though I would always recommend that one first writes asking the owner to remove it, and, if that is ignored, the landowner writes to the owner again warning him that he will remove it. If the owner insisted on placing it there again a court would, if appropriate, make an injunction requiring its removal. The only circumstances where this would not apply would be if there were, say, a glass fanlight over the front door of the flat, and the leaseholder had installed the camera so that it was immediately behind the glass. I cannot see that any issue of trespass would arise in this case. If this were the case the position would seem similar to that described on the website of the OIC, where a CCTV camera is on one neighbour’s property, but includes in its survey area the garden of another. Boring a hole through the wall of the flat so that a camera could survey the hallway would generally be a trespass to the landlord’s property (on the basis that the thickness of the wall between a flat and the hallway will almost always belong to the landlord); it might also breach the usual covenant against tampering with the main structure of the building. 3. The advice that FPRA has previously received from the OIC is that ‘not for profit’ organisations are not required to register with them. The typical RMC or leaseholders’ organisation would clearly fall within this category. Not-for-profit organisations are, however, required to comply with the eight principles for fair dealing with information. I shall paste in the relevant part of the OIC’s reply: ‘If the company is able to claim the exemption, they must be aware they must still comply with the eight data protection principles of good practice. Also, they are still obliged to respond in 21 days to a written request to provide information that would have been included in the public register if they had notified.’ The eight principles for fair dealing are to be found on the OIC website. I presume that the principle that not-for profit organisations do not have to register with the OIC overrides the reference at http://www.ico.gov.uk/home/for_the_public/topic_specific_guides/cctv.aspx to organisations using CCTV having to register with them – but this sort of confusion is, in my view, typical of anything to do with the OIC. In the previous case FPRA was trying to establish on behalf of a member organisation whether it was a breach of the Data Protection legislation for an RMC to publish a ‘blacklist’ of debtors. The guidance given by the OIC was so vague that it was difficult to establish whether this would be a breach of the legislation or not. On balance I concluded that it was probably not, especially if leaseholders were forewarned that this would happen. I suspect that if you want any further details on CCTV or Data Protection, it would be better if you raised your query direct with them. They do reply eventually, though there is usually quite a delay. As I said, in most cases the answer to any problem will depend on how the OIC interprets the ‘eight principles of fair dealing’. If you do raise a query with them, it would be useful if you would forward a copy of your query and our reply to the FPRA Office, so that we have them for future reference. If you wanted a more definitive answer to point 2 above, I would need to see a complete copy of your lease, preferably including any plan. Finally, I should add that FPRA only advises member associations – we cannot and do not act for them. Opinions and statements offered orally and in writing are given free of charge and in good faith and as such are offered without legal responsibility on the part either of the maker or of FPRA Ltd. Yours sincerely Nicholas T M Roberts, BA, LLM, PhD Legal Adviser, FPRA Ltd.

CCTV and data protection

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