I refer to the above and in response to your letter dated 18 September 2023 on behalf of Dumfries and Galloway Council’s Chief Executive.
As the relevant Licensing Authority for Short Term Lets Licences in its geographical area, Dumfries and Galloway is required to implement, govern, and manage the application process, monitoring, and enforcement of Short Term Lets Licensing. The requirements that applicants and licence holders require to follow or satisfy are largely prescribed by statute, in particular The Civic Government (Scotland) Act 1982, as amended. This means that the Council must comply with any statutory duties imposed on it as the Licensing Authority, and to also require applicants and licence holders to comply with duties imposed on them by the legislation.
When submitting their application, short term lets licence applicants are asked to provide name, address, date of birth, contact details, which is a statutory requirement. Applicants are also required to demonstrate that the meet mandatory conditions, providing evidence such as EICR’s, gas safety certificates, etc. The Council does not impose any additional standard short term lets licence conditions currently. The Civic Government (Scotland) Act 1982, Schedule 1, paragraph 2(3) creates a legal requirement for applicants to display a notice accessible to the public containing particulars as set out in paragraph 1(2). Those particulars include the name and address of the applicants. No other personal information is included in the notice, date of birth, e-mail address, telephone number, for example.
Given that the requirement of applicants to display those particulars mentioned above in a manner accessible to the public is laid down by the legislation, it is the Council’s position that it has not committed a data breach by requiring applicants to comply with those statutory requirements when they make applications for short term lets (or any other licence governed by the 1982 Act). If applicants did not follow the procedure, then their licence may not be issued as the correct procedure has not been followed. The requirement for public display of a notice is intrinsic to the application process and allows for objections or representations to be made in relation to the application.
The Council also has a legal duty to maintain a register open to public inspection of all licence applications and their status which details the ‘kind and terms’ of the licence (schedule 1, paragraph 14(1)). In complying that legal requirement, no other personal information is included on the public register, date of birth, e-mail address and telephone number, etc.
I have included a link to the Council’s Short Term Lets Licensing Privacy Statement for your information at the foot of this email. I hope that you and the operators you represent will be satisfied that the Council has paid due consideration to privacy and data protection issues in relation to its functions as Licensing Authority.
I note and appreciate the concerns you have raised on behalf of those operators whom you represent in your letter and note that you have requested a response from the Scottish Government. I hope you and operators will recognise and understand that where operators and the Licensing Authority have duties imposed on them by the relevant legislation, it is the Council’s position that those duties must be complied with, and Dumfries and Galloway Council does not have the discretion or power to vary or disapply duties which originate from statute, or to ignore or condone non-compliance therewith.