Data Protection Act 1998

The maintained copy of the data protection act can be found at: http://www.legislation.gov.uk/ukpga/1998/29/pdfs/ukpga_19980029_en.pdf

The Act

An Act to make new provision for the regulation of the processing of information relating to individuals, including the obtaining, holding, use or disclosure of such information. [16th July 1998]

B

e it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and

Commons, in this present Parliament assembled, and by the authority of the same, as follows:—

Part I

Preliminary

1.—(1) In this Act, unless the context otherwise requires—                      Basic

interpretative

“data” means information which—                                                       provisions.

  • is being processed by means of equipment operatingautomatically in response to instructions given for that purpose,
  • is recorded with the intention that it should beprocessed by means of such equipment,
  • isrecordedaspartofarelevantfilingsystemorwiththeintention that it should form part of a relevant filing system, or
  • does not fall within paragraph (a), (b) or (c) but formspart of an accessible record as defined by section 68;

“data controller” means, subject to subsection (4), a person who (either alone or jointly or in common with other persons) determines the purposes for which and the manner in which any personal data are, or are to be, processed;

“data processor”, in relation to personal data, means any person (other than an employee of the data controller) who processes the data on behalf of the data controller;

“data subject” means an individual who is the subject of personal data;

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“personal data” means data which relate to a living individual who can be identified— (a) from those data, or

(b) from those data and other information which is in the possession of, or is likely to come into the possession of, the data controller,

andincludesanyexpressionofopinionabouttheindividualand any indication of the intentions of the data controller or any other person in respect of the individual;

“processing”, in relation to information or data, means obtaining, recording or holding the information or data or carrying out any operation or set of operations on the information or data, including—

  • organisation, adaptation or alteration of the information or data,
  • retrieval, consultation or use of the information ordata,
  • disclosure of the information or data by transmission,dissemination or otherwise making available, or
  • alignment, combination, blocking, erasure or destruction of the information or data;

“relevant filing system” means any set of information relating to individuals to the extent that, although the information is not processed by means of equipment operating automatically in response to instructions given for that purpose, the set is structured, either by reference to individuals or by reference to criteria relating to individuals, in such a way that specific information relating to a particular individual is readily accessible.

  • In this Act, unless the context otherwise requires—
    • “obtaining” or “recording”, in relation to personal data,includesobtainingor recordingtheinformationto becontained in the data, and
    • “using” or “disclosing”, in relation to personal data, includesusing or disclosing the information contained in the data.
  • In determining for the purposes of this Act whether any information is recorded with the intention—
    • that it should be processed by means of equipment operatingautomatically in response to instructions given for that purpose, or
    • that it should form part of a relevant filing system,it is immaterial that it is intended to be so processed or to form part of suchasystemonlyafterbeingtransferredtoacountryorterritoryoutside the European Economic Area.
  • Where personal data are processed only for purposes for which they are required by or under any enactment to be processed, the person on whom the obligation to process the data is imposed by or under that enactment is for the purposes of this Act the data controller.

 

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2. In this Act “sensitive personal data” means personal data consisting Sensitive personal
of information as to—

(a)     the racial or ethnic origin of the data subject,

(b)    his political opinions,

(c)     his religious beliefs or other beliefs of a similar nature,

(d)    whether he is a member of a trade union (within the meaning of

data.
the Trade Union and Labour Relations (Consolidation) Act

1992),

(e)     his physical or mental health or condition,

(f)     his sexual life,

(g)    the commission or alleged commission by him of any offence, or

(h)    any proceedings for any offence committed or alleged to have been committed by him, the disposal of such proceedings or the sentence of any court in such proceedings.

1992 c. 52.
3. In this Act “the special purposes” means any one or more of the The special
following—

(a)  the purposes of journalism,

(b) artistic purposes, and(c) literary purposes.

purposes.
4.—(1) References in this Act to the data protection principles are to The data
the principles set out in Part I of Schedule 1.

(2)        Those principles are to be interpreted in accordance with Part II of Schedule 1.

(3)        Schedule 2 (which applies to all personal data) and Schedule 3 (whichappliesonlytosensitivepersonaldata)setoutconditionsapplying for the purposes of the first principle; and Schedule 4 sets out cases in which the eighth principle does not apply.

(4)        Subject to section 27(1), it shall be the duty of a data controller to comply with the data protection principles in relation to all personal data with respect to which he is the data controller.

protection principles.
5.—(1) Except as otherwise provided by or under section 54, this Act Application of
applies to a data controller in respect of any data only if— Act.
  • the data controller is established in the United Kingdom and thedata are processed in the context of that establishment, or
  • the data controller is established neither in the United Kingdomnor in any other EEA State but uses equipment in the United Kingdom for processing the data otherwise than for the purposes of transit through the United Kingdom.
  • A data controller falling within subsection (1)(b) must nominate for the purposes of this Act a representative established in the United Kingdom.
  • For the purposes of subsections (1) and (2), each of the following is to be treated as established in the United Kingdom—
    • an individual who is ordinarily resident in the United Kingdom,

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  • a body incorporated under the law of, or of any part of, theUnited Kingdom,
  • a partnership or other unincorporated association formed underthe law of any part of the United Kingdom, and
  • any person who does not fall within paragraph (a), (b) or (c) butmaintains in the United Kingdom—
    • an office, branch or agency through which he carries on any activity, or
    • a regular practice;and the reference to establishment in any other EEA State has a corresponding meaning.
The 6.—(1) The office originally established by section 3(1)(a) of the Data
Commissioner Protection Act 1984 as the office of Data Protection Registrar shall
and the Tribunal. continue to exist for the purposes of this Act but shall be known as the
1984 c. 35. office of Data Protection Commissioner; and in this Act the Data Protection Commissioner is referred to as “the Commissioner”.

(2)        The Commissioner shall be appointed by Her Majesty by Letters Patent.

(3)        For the purposes of this Act there shall continue to be a Data Protection Tribunal (in this Act referred to as “the Tribunal”).

(4)        The Tribunal shall consist of—

(a)     a chairman appointed by the Lord Chancellor after consultationwith the Lord Advocate,

(b)    such number of deputy chairmen so appointed as the LordChancellor may determine, and

(c)     such number of other members appointed by the Secretary ofState as he may determine.

(5)        The members of the Tribunal appointed under subsection (4)(a) and (b) shall be—

(a)     persons who have a 7 year general qualification, within the

1990 c. 41. meaning of section 71 of the Courts and Legal Services Act 1990,
  • advocates or solicitors in Scotland of at least 7 years’ standing,or
  • members of the bar of Northern Ireland or solicitors of theSupremeCourtofNorthernIrelandofatleast7years’standing.
  • The members of the Tribunal appointed under subsection (4)(c) shall be—

(a) persons to represent the interests of data subjects, and (b) persons to represent the interests of data controllers.

  • Schedule 5 has effect in relation to the Commissioner and the Tribunal.

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Part II

Rights of data subjects and others

7.—(1) Subject to the following provisions of this section and to Right of access to sections 8 and 9, an individual is entitled— personal data.

  • to be informed by any data controller whether personal data ofwhich that individual is the data subject are being processed by or on behalf of that data controller,
  • if that is the case, to be given by the data controller adescription of—
    • the personal data of which that individual is the datasubject,
    • the purposes for which they are being or are to beprocessed, and
    • the recipients or classes of recipients to whom they areor may be disclosed,
  • to have communicated to him in an intelligible form—
    • the information constituting any personal data ofwhich that individual is the data subject, and
    • any information available to the data controller as tothe source of those data, and
  • where the processing by automatic means of personal data ofwhich that individual is the data subject for the purpose of evaluating matters relating to him such as, for example, his performance at work, his creditworthiness, his reliability or his conduct, has constituted or is likely to constitute the sole basis for any decision significantly affecting him, to be informed by the data controller of the logic involved in that decision-taking.
  • A data controller is not obliged to supply any information under subsection (1) unless he has received—
    • a request in writing, and
    • except in prescribed cases, such fee(not exceeding the prescribedmaximum) as he may require.
  • A data controller is notobliged to comply witha request under this section unless he is supplied with such information as he may reasonably require in order to satisfy himself as to the identity of the person making the request and to locate the information which that person seeks.
  • Where a data controller cannot comply with the request without disclosing information relating to another individual who can be identified from that information, he is not obliged to comply with the request unless—
    • the other individual has consented to the disclosure of theinformation to the person making the request, or
    • it is reasonable in all the circumstances to comply with therequest without the consent of the other individual.
  • In subsection (4) the reference to information relating to another individual includes a reference to information identifying that individual as the source of the information sought by the request; and that subsection is not to be construed as excusing a data controller from communicating so much of the information sought by the request as can

 

be communicated without disclosing the identity of the other individual concerned, whether by the omission of names or other identifying particulars or otherwise.

  • In determining for the purposes of subsection (4)(b) whether it is reasonableinallthecircumstancestocomplywiththerequestwithoutthe consent of the other individual concerned, regard shall be had, in particular, to—
    • any duty of confidentiality owed to the other individual,
    • any steps taken by the data controller with a view to seeking theconsent of the other individual,
    • whether the other individual is capable of giving consent, and(d) any express refusal of consent by the other individual.
  • An individual making a request under this section may, in such cases as may be prescribed, specify that his request is limited to personal data of any prescribed description.
  • Subject to subsection (4), a data controller shall comply with a request under this sectionpromptly and in anyevent before the end of the prescribed period beginning with the relevant day.
  • Ifacourtissatisfiedontheapplicationofanypersonwhohasmade a request under the foregoing provisions of this section that the data controller in question has failed to comply with the request in contravention of those provisions, the court may order him to comply with the request.
  • In this section—

“prescribed” means prescribed by the Secretary of State by regulations;

“the prescribed maximum” means such amount as may be prescribed;

“the prescribed period” means forty days or such other period as may be prescribed;

“the relevant day”, in relation to a request under this section, means the day on which the data controller receives the request or, if later, the first day on which the data controller has both the required fee and the information referred to in subsection (3).

  • Differentamountsorperiodsmaybeprescribedunderthissection in relation to different cases.
Provisions 8.—(1) The Secretary of State may by regulations provide that, in such
supplementary to casesasmaybeprescribed,arequestforinformationunderanyprovision
section 7. of subsection (1) of section 7 is to be treated as extending also to information under other provisions of that subsection.

(2) The obligation imposed by section 7(1)(c)(i)must becomplied with bysupplyingthedatasubjectwithacopyoftheinformationinpermanent form unless—

  • the supply of such a copy is not possible or would involvedisproportionate effort, or
  • the data subject agrees otherwise;and where any of the information referred to in section 7(1)(c)(i) is expressedinterms whicharenotintelligiblewithout explanationthecopy must be accompanied by an explanation of those terms.
  • Where a data controller has previously complied with a request made under section 7 by an individual, the data controller is not obliged to comply with a subsequent identical or similar request under that section by that individual unless a reasonable interval has elapsed between compliance with the previous request and the making of the current request.
  • In determining for the purposes of subsection (3) whether requests under section 7 are made at reasonable intervals, regard shall be had to the nature of the data, the purpose for which the data are processed and the frequency with which the data are altered.
  • Section 7(1)(d) is not to be regarded as requiring the provision of information as to the logic involved in any decision-taking if, and to the extent that, the information constitutes a trade secret.
  • The information to be supplied pursuant to a request under section 7 must be supplied by reference to the data in question at the time when the request isreceived,except that itmay takeaccount ofanyamendment or deletion made between that time and the time when the information is supplied, being an amendment or deletion that would have been made regardless of the receipt of the request.
  • For the purposes of section 7(4) and (5) another individual can be identified from the information being disclosed if he can be identified from that information, or from that and any other information which, in the reasonable belief of the data controller, is likely to be in, or to come into, the possession of the data subject making the request.
9.—(1) Where the data controller is a credit reference agency, section Application of
7 has effect subject to the provisions of this section. section 7 where data controller is
(2) An individual making a request under section 7 may limit his credit reference
request to personal data relevant to his financial standing, and shall be taken to have so limited his request unless the request shows a contrary intention.

(3) Where the data controller receives a request under section 7 in a casewherepersonaldataofwhichtheindividualmakingtherequestisthe datasubjectarebeingprocessedbyoronbehalfofthedatacontroller,the obligation to supply information under that section includes an obligation to give the individual making the request a statement, in such form as may be prescribed by the Secretary of State by regulations, of the individual’s rights—

agency.
(a)     under section 159 of the Consumer Credit Act 1974 , and

(b)    to the extent required by the prescribed form, under this Act.

1974 c. 39.
10.—(1) Subject to subsection (2), an individual is entitled at any time Right to prevent
by notice in writing to a data controller to require the data controller at processing likely
the end of such period as is reasonable in the circumstances to cease, or to cause damage
not to begin, processing, or processing for a specified purpose or in a specified manner, any personal data in respect of which he is the data

subject, on the ground that, for specified reasons—

or distress.

(a) the processing of those data or their processing for that purpose or in that manner is causing or is likely to cause substantial damage or substantial distress to him or to another, and (b) that damage or distress is or would be unwarranted.

(2) Subsection (1) does not apply—

  • in a case where any of the conditions in paragraphs 1 to 4 ofSchedule 2 is met, or
  • insuchothercasesasmaybeprescribedbytheSecretaryofStateby order.

(3) The data controller must within twenty-one days of receiving a notice under subsection (1) (“the data subject notice”) give the individual who gave it a written notice—

  • stating that he has complied or intends to comply with the datasubject notice, or
  • stating his reasonsfor regarding the data subject noticeas to anyextent unjustified and the extent (if any) to which he has complied or intends to comply with it.
  • If a court is satisfied, on the application of any person who has given a notice under subsection (1) which appears to the court to be justified (or to be justified to any extent), that the data controller in question has failed to comply with the notice, the court may order him to take such steps for complying with the notice (or for complying with it to that extent) as the court thinks fit.
  • The failure by a data subject to exercise the right conferred by subsection (1) or section 11(1) does not affect any other right conferred on him by this Part.
Right to prevent 11.—(1) An individual is entitled at any time by notice in writing to a
processing for data controller to require the data controller at the end of such period as
purposes of direct is reasonablein the circumstances to cease, or not to begin, processing for
marketing. the purposes of direct marketing personal data in respect of which he is the data subject.

(2)        If the court is satisfied, on the application of any person who has given a notice under subsection (1), that the data controller has failed to comply with the notice, the court may order him to take such steps for complying with the notice as the court thinks fit.

(3)        In this section “direct marketing” means the communication (by whatever means) of any advertising or marketing material which is directed to particular individuals.

Rights in relation 12.—(1)Anindividualisentitledatanytime,bynoticeinwritingtoany
to automated data controller, to require the data controller to ensure that no decision
decision-taking. takenbyoronbehalfofthedatacontrollerwhichsignificantlyaffectsthat individual is based solely on the processing by automatic means of personal data in respect of which that individual is the data subject for thepurposeofevaluatingmattersrelatingtohimsuchas,forexample,his performance at work, his creditworthiness, his reliability or his conduct.

(2) Where, in a case where no notice under subsection (1) has effect, a decision which significantly affects an individual is based solely on such processing as is mentioned in subsection (1)—

  • the data controller must as soon as reasonably practicable notifythe individual that the decision was taken on that basis, and
  • the individual is entitled, within twenty-one days of receivingthatnotificationfromthedatacontroller,bynoticeinwritingto requirethedatacontrollertoreconsiderthedecisionortotakea new decision otherwise than on that basis.
  • The data controller must, within twenty-one days of receiving a notice under subsection (2)(b) (“the data subject notice”) give the individual a written notice specifying the steps that he intends to take to comply with the data subject notice.
  • A notice under subsection (1) does not have effect in relation to an exempt decision; and nothing in subsection (2) applies to an exempt decision.
  • In subsection (4) “exempt decision” means any decision—
    • in respect of which the condition in subsection (6) and thecondition in subsection (7) are met, or
    • which is made in such other circumstances as may be prescribedby the Secretary of State by order.
  • The condition in this subsection is that the decision—
    • is taken in the course of steps taken—
      • for the purpose of considering whether to enter into acontract with the data subject,
      • with a view to entering into such a contract, or(iii) in the course of performing such a contract, or (b) is authorised or required by or under any enactment.
    • The condition in this subsection is that either—
      • the effect of the decision is to grant a request of the data subject, or
      • steps have been taken to safeguard the legitimate interests of thedata subject (for      example,          by           allowing           him      to         make representations).
    • If a court is satisfied on the application of a data subject that a person taking a decision in respect of him (“the responsible person”) has failed to comply with subsection (1) or (2)(b), the court may order the responsible person to reconsider the decision, or to take a new decision which is not based solely on such processing as is mentioned in subsection (1).
    • An order under subsection (8) shall not affect the rights of any person other than the data subject and the responsible person.
13.—(1) An individual who suffers damage by reason of any Compensation for
contravention by a data controller of any of the requirements of this Act failure to comply
is entitled to compensation from the data controller for that damage. with certain requirements.
  • An individual who suffers distress by reason of any contravention by a data controller of any of the requirements of this Act is entitled to compensation from the data controller for that distress if—
    • the individual         also      suffers damage by        reason  of         the contravention, or
    • the contravention relates to the processing of personal data forthe special purposes.
  • In proceedings brought against a person by virtue of this section it isadefencetoprovethathehadtakensuchcareasinallthecircumstances was reasonably required to comply with the requirement concerned.
Rectification, 14.—(1) If a court is satisfied on the application of a data subject that
blocking, erasure personal data of which the applicant is the subject are inaccurate, the
and destruction. court may order the data controller to rectify, block, erase or destroy those data and any other personal data in respect of which he is the data controller and which contain an expression of opinion which appears to the court to be based on the inaccurate data.

(2) Subsection (1) applies whether or not the data accurately record information received or obtained by the data controller from the data subject or a third party but where the data accurately record such information, then—

  • if the requirements mentioned in paragraph 7 of Part II ofSchedule 1 have been complied with, the court may, instead of making an order under subsection (1), make an order requiring the data to be supplemented by such statement of the true facts relating to the matters dealt with by the data as the court may approve, and
  • if all or any of those requirements have not been complied with,the court may, instead of making an order under that subsection, make such order as it thinks fit for securing compliance with those requirements with or without a further orderrequiringthedatatobesupplementedbysuchastatement as is mentioned in paragraph (a).

(3) Where the court—

  • makes an order under subsection (1), or
  • issatisfiedonthe applicationof adata subjectthatpersonaldataof which he was the data subject and which have been rectified, blocked, erased or destroyed were inaccurate,

it may, where it considers it reasonably practicable, order the data controller to notify third parties to whom the data have been disclosed of the rectification, blocking, erasure or destruction.

  • If a court is satisfied on the application of a data subject—
    • that he has suffered damage by reason of any contravention by adatacontrollerofanyoftherequirementsofthisActinrespect of any personal data, in circumstances entitling him to compensation under section 13, and
    • that there is a substantial risk of furthercontravention in respectof those data in such circumstances,

the court may order the rectification, blocking, erasure or destruction of any of those data.

  • Where the court makes an orderunder subsection (4) it may, where it considers it reasonably practicable, order the data controller to notify third parties to whom the data have been disclosed of the rectification, blocking, erasure or destruction.
  • In determining whether it is reasonably practicable to require such notification as is mentioned in subsection (3) or (5) the court shall have regard, in particular, to the number of persons who would have to be notified.

15.—(1) The jurisdiction conferred by sections 7 to 14 is exercisable by Jurisdiction and the High Court or a county court or, in Scotland, by the Court of Session procedure. or the sheriff.

(2) For the purpose of determining any question whether an applicant under subsection (9) of section 7 is entitled to the information which he seeks (including any question whether any relevant data are exempt from that section by virtue of Part IV) a court may require the information constitutingany data processed by or on behalfof the data controller and any information as to the logic involved in any decision-taking as mentioned in section 7(1)(d) to be made available for its own inspection but shall not, pending the determination of that question in the applicant’s favour, require the information sought by the applicant to be disclosed to him or his representatives whether by discovery (or, in Scotland, recovery) or otherwise.

Part III

Notification by data controllers

16.—(1) In this Part “the registrable particulars”, in relation to a data   Preliminary. controller, means— (a) his name and address,

  • if he has nominated a representative for the purposes of this Act,the name and address of the representative,
  • a description of the personal data being or to be processed by oronbehalfofthedatacontrollerandofthecategoryorcategories of data subject to which they relate,
  • a description of the purpose or purposes for which the data arebeing or are to be processed,
  • a description of any recipient or recipients to whom the datacontroller intends or may wish to disclose the data,
  • thenames,oradescriptionof,anycountriesorterritoriesoutsidethe European Economic Area to which the data controller directly or indirectly transfers, or intends or may wish directly or indirectly to transfer, the data, and
  • in any case where—
    • personal data are being, or are intended to be,processed in circumstances in which the prohibition in subsection(1)ofsection17isexcludedbysubsection(2)or(3) of that section, and
    • the notification does not extend to those data,a statement of that fact.
  • In this Part—

“fees regulations” means regulations made by the Secretary of State under section 18(5) or 19(4) or (7);

“notification regulations” means regulations made by the Secretary of State under the other provisions of this Part;

 

“prescribed”, except where used in relation to fees regulations, means prescribed by notification regulations.

  • For the purposes of this Part, so far as it relates to the addresses of data controllers—
    • the address of a registered company is that of its registeredoffice, and
    • the address of a person (other than a registered company) carrying on a business is that of his principal place of business in the United Kingdom.
Prohibition on 17.—(1) Subject to the following provisions of this section, personal
processing data must not be processed unless an entry in respect of the data
without controller is included in the register maintained by the Commissioner
registration. under section 19 (or is treated by notification regulations made by virtue of section 19(3) as being so included).

(2)        Except where the processing is assessable processing for the purposes of section 22, subsection (1) does not apply in relation to personal data consisting of information which falls neither within paragraph (a) of the definition of “data” in section 1(1) nor within paragraph (b) of that definition.

(3)        If it appearstothe Secretary of State that processingof a particular description is unlikely to prejudice the rights and freedoms of data subjects, notification regulations may provide that, in such cases as may be prescribed, subsection (1) is not to apply in relation to processing of that description.

(4)        Subsection (1) does not apply in relation to any processing whose sole purpose is the maintenance of a public register.

Notification by 18.—(1) Any data controller who wishes to be included in the register
data controllers. maintainedunder section19shall giveanotificationto theCommissioner under this section.
  • A notification under this section must specify in accordance with notification regulations—
    • the registrable particulars, and
    • a general description of measures to be taken for the purpose ofcomplying with the seventh data protection principle.
  • Notification regulations made by virtue of subsection (2) may provide for the determination by the Commissioner, in accordance with any requirements of the regulations, of the form in which the registrable particulars and the description mentioned in subsection (2)(b) are to be specified, including in particular the detail required for the purposes of section 16(1)(c), (d), (e) and (f) and subsection (2)(b).
  • Notification regulations may make provision as to the giving of notification—
    • by partnerships, or
    • inothercaseswheretwoormorepersonsarethedatacontrollersin respect of any personal data.
  • The notification must be accompanied by such fee as may be prescribed by fees regulations.

III

(6) Notification regulations may provide for any fee paid under subsection(5)orsection19(4)toberefundedinprescribedcircumstances.
19.—(1) The Commissioner shall— Register of
(a)     maintain a register of persons who have given notification undersection 18, and

(b)    make an entry in the register in pursuance of each notificationreceived by him under that section from a person in respect of whom no entry as data controller was for the time being included in the register.

(2)        Each entry in the register shall consist of—

(a)     theregistrableparticularsnotifiedundersection18or,asthecaserequires, those particulars as amended in pursuance of section 20(4), and

(b)    such other information as the Commissioner may be authorisedor required by notification regulations to include in the register.

(3)        Notification regulationsmay makeprovision asto thetime asfrom which any entry in respect of a data controller is to be treated for the purposes of section 17 as having been made in the register.

(4)        No entry shall be retained in the register for more than the relevant time except on payment of such fee as may be prescribed by fees regulations.

(5)        In subsection (4) “the relevant time” means twelve months or such other period as may be prescribed by notification regulations; and different periods may be prescribed in relation to different cases.

(6)        The Commissioner—

(a)     shall provide facilities for making the information contained inthe entries in the register available for inspection (in visible and legible form) by members of the public at all reasonable hours and free of charge, and

(b)    may provide such other facilities for making the informationcontained in those entries available to the public free of charge as he considers appropriate.

(7)        The Commissioner shall, on payment of such fee, if any, as may be prescribed by fees regulations, supply any member of the public with a duly certified copy in writing of the particulars contained in any entry made in the register.

notifications.
20.—(1) For the purpose specified in subsection (2), notification Duty to notify
regulations shallinclude provision imposing on every person inrespect of whom an entry as a data controller is for the time being included in the register maintained under section 19 a duty to notify to the Commissioner, in such circumstances and at such time or times and in such form as may be prescribed, such matters relating to the registrable particulars and measures taken as mentioned in section 18(2)(b) as may be prescribed. changes.
  • The purpose referred to in subsection (1) is that of ensuring, so far as practicable, that at any time—
    • the entries in the register maintained under section 19 containcurrent names and addresses and describe the current practice or intentions of the data controller with respect to the processing of personal data, and
    • the Commissioner is provided with a general description ofmeasures currently being taken as mentioned in section

18(2)(b).

  • Subsection (3) of section 18 has effect in relation to notification regulations made by virtue of subsection (1) as it has effect in relation to notification regulations made by virtue of subsection (2) of that section.
  • On receiving any notification under notification regulations made by virtue of subsection (1), the Commissioner shall make such amendmentsoftherelevantentryintheregistermaintainedundersection 19 as are necessary to take account of the notification.
Offences. 21.—(1) If section 17(1) is contravened, the data controller is guilty of an offence.

(2)        Any person who fails to comply with the duty imposed by notification regulations made by virtue of section 20(1) is guilty of an offence.

(3)        It shall be a defence for a person charged with an offence under subsection (2) to show that he exercised all due diligence to comply with the duty.

Preliminary 22.—(1) In this section “assessable processing” means processing
assessment by which is of a description specified in an order made by the Secretary of
Commissioner. State as appearing to him to be particularly likely—
  • to cause substantial damage or substantial distress to datasubjects, or
  • otherwise significantly to prejudice the rights and freedoms ofdata subjects.
  • On receiving notificationfrom any data controller undersection 18 or under notification regulations made by virtue of section 20 the Commissioner shall consider—
    • whether any of the processing to which the notification relates isassessable processing, and
    • if so, whether the assessable processing is likely to comply withthe provisions of this Act.
  • Subject to subsection (4), the Commissioner shall, within the period of twenty-eight days beginning with the day on which he receives a notification which relates to assessable processing, give a notice to the data controller stating the extent to which the Commissioner is of the opinion that the processing is likely or unlikely to comply with the provisions of this Act.
  • Before the end of the period referred to in subsection (3) the Commissioner may, by reason of special circumstances, extend that period on one occasion only by notice to the data controller by such further period not exceeding fourteen days as the Commissioner may specify in the notice.

 

III

(5)        Noassessableprocessinginrespectofwhichanotificationhasbeen given to the Commissioner as mentioned in subsection (2) shall be carried on unless either—

(a)     the period of twenty-eight days beginning with the day on whichthe notification is received by the Commissioner (or, in a case falling within subsection (4), that period as extended under that subsection) has elapsed, or

(b)    before the end of that period (or that period as so extended) thedata controller has received a notice from the Commissioner under subsection (3) in respect of the processing.

(6)        Where subsection (5) is contravened, the data controller is guilty of an offence.

(7)        The Secretary of State may by order amend subsections (3), (4) and (5) by substituting for the number of days for the time being specified there a different number specified in the order.

23.—(1) The Secretary of State may by order— Power to make
(a) make provision under which a data controller may appoint a provision for appointment of
person to act as a data protection supervisor responsible in data protection
particular for monitoring in an independent manner the data controller’s compliance with the provisions of this Act, and

(b) provide that, in relation to any data controller who has appointed a data protection supervisor in accordance with the provisions of the order and who complies with such conditions as may be specified in the order, the provisions of this Part are to have effect subject to such exemptions or other modifications as may be specified in the order.

(2) An order under this section may—

(a)     impose duties on data protection supervisors in relation to theCommissioner, and

(b)    confer functions on the Commissioner in relation to dataprotection supervisors.

supervisors.
24.—(1) Subject to subsection (3), where personal data are processed Duty of certain
in a case where— data controllers to make certain
(a) by virtue of subsection (2) or (3) of section 17, subsection (1) of information
that section does not apply to the processing, and available.

(b) the data controller has not notified the relevant particulars in respect of that processing under section 18,

the data controller must, within twenty-one days of receiving a written request from any person, make the relevant particulars available to that person in writing free of charge.

  • In this section “the relevant particulars” means the particulars referred to in paragraphs (a) to (f) of section 16(1).
  • This section has effect subject to any exemption conferred for the purposes of this section by notification regulations.
  • Any data controller who fails to comply with the duty imposed by subsection (1) is guilty of an offence.
  • It shall be a defence for a person charged with an offence under subsection (4) to show that he exercised all due diligence to comply with the duty.
Functions of 25.—(1) As soon as practicable after the passing of this Act, the
Commissioner in Commissioner shall submit to the Secretary of State proposals as to the
relation to making of notification provisions to be included in the first notification regulations.
regulations. (2)        The Commissioner shall keep under review the working of notification regulations and may from time to time submit to the Secretary of State proposals as to amendments to be made to the regulations.

(3)        The Secretary of State may from time to time require the

Commissioner to consider any matter relating to notification regulations and to submit to him proposals as to amendments to be made to the regulations in connection with that matter.

(4)        Before making any notification regulations, the Secretary of State shall—

(a) consider any proposals made to him by the Commissioner under subsection (1), (2) or (3), and (b) consult the Commissioner.

Fees regulations. 26.—(1) Fees regulations prescribing fees for the purposes of any provision of this Part may provide for different fees to be payable in different cases.

(2) In making any fees regulations, the Secretary of State shall have regard to the desirability of securing that the fees payable to the Commissioner are sufficient to offset—

(a)     the expenses incurred by the Commissioner and the Tribunal indischarging their functions and any expenses of the Secretary of State in respect of the Commissioner or the Tribunal, and

(b)    to the extent that the Secretary of State considers appropriate—

(i)                      any deficit previously incurred (whether before or afterthe passing of this Act) in respect of the expenses mentioned in paragraph (a), and

(ii)                    expenses incurred or to be incurred by the Secretary ofState in respect of the inclusion of any officers or staff of the Commissioner in any scheme under section 1 of the

1972 c. 11. Superannuation Act 1972.

Part IV

Exemptions

Preliminary. 27.—(1) References in any of the data protection principles or any provision of Parts II and III to personal data or to the processing of personal data do not include references to data or processing which by virtue of this Part are exempt from that principle or other provision.

(2) In this Part “the subject information provisions” means—

  • the first data protection principle to the extent to which itrequires compliance with paragraph 2 of Part II of Schedule 1, and
  • section 7.
  • In this Part “the non-disclosure provisions” means the provisions specifiedinsubsection(4)totheextenttowhichtheyareinconsistentwith the disclosure in question.
  • The provisions referred to in subsection (3) are—
    • the first data protection principle, except to the extent to whichit requires compliance with the conditions in Schedules 2 and 3, (b) thesecond,third,fourthandfifthdataprotectionprinciples,and (c) sections 10 and 14(1) to (3).
  • Except as provided by thisPart, the subject information provisions shallhaveeffectnotwithstandinganyenactmentorruleoflawprohibiting or restricting the disclosure, or authorising the withholding, of information.

28.—(1) Personal data are exempt from any of the provisions of—              National security.

  • the data protection principles,
  • Parts II, III and V, and
  • section 55,if the exemption from that provision is required for the purpose of safeguarding national security.
  • Subject to subsection (4), a certificate signed by a Minister of the Crown certifying that exemption from all or any of the provisions mentioned in subsection (1) is or atany time was required forthe purpose there mentioned in respect of any personal data shall be conclusive evidence of that fact.
  • A certificate under subsection (2) may identify the personal data to which it applies by means of a general description and may be expressed to have prospective effect.
  • Any person directly affected by the issuing of a certificate under subsection (2) may appeal to the Tribunal against the certificate.
  • If on an appeal under subsection (4), the Tribunal finds that, applying the principles applied by the court on an application for judicial review, the Minister did not have reasonable grounds for issuing the certificate, the Tribunal may allow the appeal and quash the certificate.
  • WhereinanyproceedingsunderorbyvirtueofthisActitisclaimed by a data controller that a certificate under subsection (2) which identifies the personal data to which it applies by means of a general description applies to any personal data, any other party to the proceedings may appeal to the Tribunal on the ground that the certificate does not apply to the personal data in question and, subject to any determination under subsection (7), the certificate shall be conclusively presumed so to apply.
  • On any appeal under subsection (6), the Tribunal may determine that the certificate does not so apply.
  • Adocumentpurportingtobeacertificateundersubsection(2)shall be received in evidence and deemed to be such a certificate unless the contrary is proved.

 

  • A document which purports to be certified by or on behalf of a Minister of the Crown as a true copy of a certificate issued by that Minister under subsection (2) shall in any legal proceedings be evidence (or, in Scotland, sufficient evidence) of that certificate.
  • Thepowerconferredbysubsection(2)onaMinisteroftheCrown shall not be exercisable except by a Minister who is a member of the Cabinet or by the Attorney General or the Lord Advocate.
  • No power conferred by any provision of Part V may be exercised in relation to personal data which by virtue of this section are exempt from that provision.
  • Schedule6shallhaveeffectinrelationtoappealsundersubsection (4) or (6) and the proceedings of the Tribunal in respect of any such appeal.

Crime and 29.—(1) Personal data processed for any of the following purposes— taxation.

  • the prevention or detection of crime,
  • the apprehension or prosecution of offenders, or
  • the assessment or collection of any tax or duty or of anyimposition of a similar nature,

are exempt from the first data protection principle (except to the extent to which it requires compliance with the conditions in Schedules 2 and 3) and section 7 in any case to the extent to which the application of those provisions to the data would be likely to prejudice any of the matters mentioned in this subsection.

  • Personal data which—
    • are processed for the purpose of discharging statutory functions, and
    • consist of information obtained for such a purpose from aperson who had it in his possession for any of the purposes mentioned in subsection (1),

are exempt from the subject information provisions to the same extent as personal data processed for any of the purposes mentioned in that subsection.

  • Personaldataareexemptfromthenon-disclosureprovisionsinany case in which—
    • the disclosure is for any of the purposes mentioned in subsection(1), and
    • the application of those provisions in relation to the disclosurewouldbelikelytoprejudiceanyofthemattersmentionedinthat subsection.
  • Personal data in respect of which the data controller is a relevant authority and which—
    • consist of a classification applied to the data subject as part of asystem of risk assessment which is operated by that authority for either of the following purposes—
    • the assessment or collection of any tax or duty or anyimposition of a similar nature, or
    • the prevention or detection of crime, or apprehensionor prosecution of offenders, where the offence concerned involves any unlawful claim for any payment out of, or any unlawful application of, public funds, and

(b) are processed for either of those purposes, areexemptfromsection7totheextenttowhichtheexemptionisrequired in the interests of the operation of the system.

(5) In subsection (4)—

“public funds” includes funds provided by any Community institution;

“relevant authority” means— (a) a government department,

  • a local authority, or
  • any other authority administering housing benefit orcouncil tax benefit.

30.—(1) The Secretary of State may by order exempt from the subject Health, education information provisions, or modify those provisions in relation to, and social work. personal data consisting of information as to the physical or mental health or condition of the data subject.

  • The Secretary of State may by order exempt from the subject information provisions, or modify those provisions in relation to—
    • personal data in respect of which the data controller is theproprietor of, or a teacher at, a school, and which consist of information relating to persons who are or have been pupils at the school, or
    • personal data in respect of which the data controller is aneducation authority in Scotland, and which consist of information relating to persons who are receiving, or have received, further education provided by the authority.
  • The Secretary of State may by order exempt from the subject information provisions, or modify those provisions in relation to, personal data of such other descriptions as may be specified in the order, being information—
    • processed by government departments or local authorities or byvoluntary organisations or other bodies designated by or under the order, and
    • appearing to him to be processed in the course of, or for thepurposes of, carrying out social work in relation to the data subject or other individuals;

but the Secretary of State shall not under this subsection confer any exemptionormakeanymodificationexceptsofarasheconsidersthatthe applicationtothedataofthoseprovisions(orofthoseprovisionswithout modification)wouldbe likelytoprejudicethecarrying outofsocialwork.

  • An order under this section may make different provision in relation to data consisting of information of different descriptions.
  • In this section—
“education authority” and “further education” have the same
1980 c. 44. meaning as in the Education (Scotland) Act 1980 (“the 1980 Act”), and

“proprietor”—

(a) in relation to a school in England or Wales, has the
1996 c. 56. same meaning as in the Education Act 1996,

(b) in relation to a school in Scotland, means—

(i) in the case of a self-governing school, the board of

1989 c. 39. management within the meaning of the SelfGoverning Schools etc. (Scotland) Act 1989,

(ii)      in the case of an independent school, the proprietorwithin the meaning of the 1980 Act,

(iii)    in the case of a grant-aided school, the managerswithin the meaning of the 1980 Act, and

(iv)    in the case of a public school, the educationauthority within the meaning of the 1980 Act, and

(c) in relation to a school in Northern Ireland, has the

S.I. 1986/594 same meaning as in the Education and Libraries (Northern
(N.I.3). Ireland) Order 1986 and includes, in the case of a controlled school, the Board of Governors of the school.
Regulatory 31.—(1) Personal data processed for the purposes of discharging
activity. functions to which this subsection applies are exempt from the subject information provisions in any case to the extent to which the application of those provisions to the data would be likely to prejudice the proper discharge of those functions.

(2) Subsection (1) applies to any relevant function which is designed—

(a) for protecting members of the public against—

  • financial loss due to dishonesty, malpractice or otherseriously improper conduct by, or the unfitness or incompetence of, persons concerned in the provision of banking, insurance, investment or other financial services or in the management of bodies corporate,
  • financial loss due to the conduct of discharged orundischarged bankrupts, or
  • dishonesty, malpractice or other seriously improperconduct by, or the unfitness or incompetence of, persons authorised to carry on any profession or other activity,
  • for protecting charities against misconduct or mismanagement

(whether by trustees or other persons) in their administration,

  • for protecting         the       property           of         charities           from    loss    or misapplication,
  • for the recovery of the property of charities,
  • for securing the health, safety and welfare of persons at work, or
  • for protecting persons other than persons at work against risk tohealth or safety arising out of or in connection with the actions of persons at work.

(3) In subsection (2) “relevant function” means—

  • any function conferred on any person by or under anyenactment,
  • any function of the Crown, a Minister of the Crown or agovernment department, or
  • any other function which is of a public nature and is exercised inthe public interest.
  • Personal data processed for the purpose of discharging any function which—
    • is conferred by or under any enactment on—
      • the Parliamentary Commissioner for Administration,
      • the Commission for Local Administration in England,the Commission for Local Administration in Wales or the Commissioner for Local Administration in Scotland,
      • the Health Service Commissioner for England, theHealthServiceCommissionerforWalesortheHealthService

Commissioner for Scotland,

  • the Welsh Administration Ombudsman,
  • the Assembly Ombudsman for Northern Ireland, or
  • the Northern Ireland Commissioner for Complaints,and
  • is designed for protecting members of the public against—
    • maladministration by public bodies,
    • failures in services provided by public bodies, or
    • a failure of a public body to provide a service which itwas a function of the body to provide, are exempt from the subject information provisions in any case to the extent to which the application of those provisions to the data would be likely to prejudice the proper discharge of that function.
  • Personal data processed for the purpose of discharging any function which—
    • is conferred by or under any enactment on the Director Generalof Fair Trading, and
    • is designed—
      • for protecting members of the public against conductwhich may adversely affect theirinterests by persons carrying on a business,
      • for regulating agreements or conduct which have astheir object or effect the prevention, restriction or distortion ofcompetitioninconnectionwithanycommercialactivity,or
      • for regulating conduct on the part of one or moreundertakings which amounts to the abuse of a dominant position in a market, are exempt from the subject information provisions in any case to the extent to which the application of those provisions to the data would be likely to prejudice the proper discharge of that function.

32.—(1) Personal data which are processed only for the special Journalism, purposes are exempt from any provision to which this subsection literature and art. relates if—

  • the processing is undertaken with a view to the publication byany person of any journalistic, literary or artistic material,
  • the data controller reasonably believes that, having regard inparticular to the special importance of the public interest in freedom of expression, publication would be in the public interest, and
  • the data controller reasonably believes that, in all thecircumstances, compliance with that provision is incompatible with the special purposes.
    • Subsection (1) relates to the provisions of—
      • the data protection principles except the seventh data protectionprinciple,
      • section 7,
      • section 10,
      • section 12, and
      • section 14(1) to (3).
    • In considering for the purposes of subsection (1)(b) whether the belief of a data controller that publication would be in the public interest was or is a reasonable one, regard may be had to his compliance with any code of practice which—
      • is relevant to the publication in question, and
      • is designated by the Secretary of State by order for the purposesof this subsection.
    • Where at any time (“the relevant time”) in any proceedings against a data controller under section 7(9), 10(4), 12(8) or 14 or by virtue of section 13 the data controller claims, or it appears to the court, that any personal data to which the proceedings relate are being processed—
      • only for the special purposes, and
      • with a view to the publication by any person of any journalistic,literary or artistic material which, at the time twenty-four hours immediately before the relevant time, had not previously been published by the data controller,

the court shall stay the proceedings until either of the conditions in subsection (5) is met.

  • Those conditions are—
    • that a determination of the Commissioner under section 45 withrespect to the data in question takes effect, or
    • in a case where the proceedings were stayed on the making of aclaim, that the claim is withdrawn.
  • For the purposes of this Act “publish”, in relation to journalistic, literary or artistic material, means make available to the public or any section of the public.

Research, history 33.—(1) In this section— and statistics.

“research purposes” includes statistical or historical purposes;

“the relevant conditions”, in relation to any processing of personal data, means the conditions—

  • that the data are not processed to support measures ordecisions with respect to particular individuals, and
  • that the data are not processed in such a way thatsubstantial damage or substantial distress is, or is likely to be, caused to any data subject.
  • For the purposes of the second data protection principle, the further processing of personal data only for research purposes in compliance with the relevant conditions is not to be regarded as incompatible with the purposes for which they were obtained.
  • Personal data which are processed only for research purposes in compliance with the relevant conditions may, notwithstanding the fifth data protection principle, be kept indefinitely.
  • Personal data which are processed only for research purposes are exempt from section 7 if—
    • they are processed in compliance with the relevant conditions,and
    • the results of the research or any resulting statistics are not madeavailableinaformwhichidentifiesdatasubjectsoranyofthem.
  • For the purposes of subsections (2) to (4) personal data are not to be treated as processed otherwise than for research purposes merely because the data are disclosed—
    • to any person, for research purposes only,
    • to the data subject or a person acting on his behalf,
    • attherequest,or withtheconsent,ofthedata subjectorapersonacting on his behalf, or
34. Personal data are exempt from— Information
(a) the subject information provisions, available to the public by or under
(b)                  the fourth data protection principle and section 14(1) to (3), and

(c)                  the non-disclosure provisions,if the data consist of information which the data controller is obliged by or under any enactment to make available to the public, whether by publishing it, by making it available for inspection, or otherwise and whether gratuitously or on payment of a fee.

enactment.
35.—(1) Personal data are exempt from the non-disclosure provisions Disclosures
where the disclosure is required by or under any enactment, by any rule required by law or
of law or by the order of a court. made in connection with
(2) Personaldataareexemptfromthenon-disclosureprovisionswhere legal proceedings etc.
  • in circumstances in which the person making the disclosure hasreasonable grounds for believing that the disclosure falls within paragraph (a), (b) or (c). the disclosure is necessary—
  • for the purpose of, or in connection with, any legal proceedings

(including prospective legal proceedings), or

  • for the purpose of obtaining legal advice,or is otherwise necessary for the purposes of establishing, exercising or defending legal rights.
Domestic 36. Personal data processed by an individual only for the purposes of
purposes. that individual’s personal, family or household affairs (including recreationalpurposes)areexemptfromthedataprotectionprinciplesand the provisions of Parts II and III.
Miscellaneous 37. Schedule 7 (which confers further miscellaneous exemptions) has
exemptions. effect.
Powers to make 38.—(1) The Secretary of State may by order exempt from the subject
further information provisions personal data consisting of information the
exemptions by disclosure of which is prohibited or restricted by or under any enactment
order. if and to the extent that he considers it necessary for the safeguarding of the interests of the data subject or the rights and freedoms of any other individual that the prohibition or restriction ought to prevail over those provisions.

(2) The Secretary of State may by order exempt from the nondisclosure provisions any disclosures of personal data made in circumstances specified in the order, if he considers the exemption is necessary for the safeguarding of the interests of the data subject or the rights and freedoms of any other individual.

Transitional relief.             39. Schedule 8 (which confers transitional exemptions) has effect.

Part V

Enforcement

Enforcement 40.—(1) If the Commissioner is satisfied that a data controller has notices. contravened or is contravening any of the data protection principles, the Commissioner may serve him with a notice (in this Act referred to as “an enforcement notice”) requiring him, for complying with the principle or principles in question, to do either or both of the following—

  • to take within such time as may be specified in the notice, or torefrain from taking after such time as may be so specified, such steps as are so specified, or
  • to refrain from processing any personal data, or any personaldata of a description specified in the notice, or to refrain from processing them for a purpose so specified or in a manner so specified, after such time as may be so specified.
  • In deciding whether to serve an enforcement notice, the Commissioner shall consider whether the contravention has caused or is likely to cause any person damage or distress.
  • An enforcement notice in respect of a contravention of the fourth data protection principle which requires the data controller to rectify, block, erase or destroy any inaccurate data may also require the data controller to rectify, block, erase or destroy any other data held by him and containing an expression of opinion which appears to the Commissioner to be based on the inaccurate data.
  • An enforcement notice in respect of a contravention of the fourth data protection principle, in the case of data which accurately record information received or obtained by the data controller from the data subject or a third party, may require the data controller either—

 

  • to rectify, block, erase or destroy any inaccurate data and anyother data held by him and containing an expression of opinion as mentioned in subsection (3), or
  • to take such steps as are specified in the notice for securingcompliance with the requirements specified in paragraph 7 of Part II of Schedule 1 and, if the Commissioner thinks fit, for supplementing the data with such statement of the true facts relating to the matters dealt with by the data as the Commissioner may approve.
  • Where—
    • an enforcement notice requires the data controller to rectify,block, erase or destroy any personal data, or
    • theCommissionerissatisfiedthatpersonaldatawhichhavebeenrectified, blocked, erased or destroyed had been processed in contravention of any of the data protection principles,

an enforcement notice may, if reasonably practicable, require the data controller to notify third parties to whom the data have been disclosed of the rectification, blocking, erasure or destruction; and in determining whether it is reasonably practicable to require such notification regard shall be had, in particular, to the number of persons who would have to be notified.

  • An enforcement notice must contain—
    • a statement of the data protection principle or principles whichthe Commissioner is satisfied have been or are being contravened and his reasons for reaching that conclusion, and (b) particulars of the rights of appeal conferred by section 48.
  • Subject to subsection (8), an enforcement notice must not require any of the provisions of the notice to be complied with before the end of the period within which an appeal can be brought against the notice and, ifsuchanappealisbrought,thenoticeneednotbecompliedwithpending the determination or withdrawal of the appeal.
  • If by reason of special circumstances the Commissioner considers that an enforcement notice should be complied with as a matter of urgency he may include in the notice a statement to that effect and a statement of his reasons for reaching that conclusion; and in that event subsection (7) shall not apply but the notice must not require the provisions of the notice to be complied with before the end of the period of seven days beginning with the day on which the notice is served.
  • Notification regulations (as defined by section 16(2)) may make provision as to the effect of the service of an enforcement notice on any entry in the register maintained under section 19 which relates to the person on whom the notice is served.
  • This section has effect subject to section 46(1).
41.—(1) IftheCommissioner considers that all or anyof the provisions Cancellation of
of an enforcement notice need not be complied with in order to ensure enforcement
compliance with the data protection principle or principles to which it relates, he may cancel or vary the notice by written notice to the person on whom it was served. notice.

(2) A person on whom an enforcement notice has been served may, at any time after the expiry of the period during which an appeal can be brought against that notice, apply in writing to the Commissioner for the cancellation or variation of that notice on the ground that, by reason of a change of circumstances, all or any of the provisions of that notice need not be complied with in order to ensure compliance with the data protection principle or principles to which that notice relates.

Request for 42.—(1) A request may be made to the Commissioner by or on behalf
assessment. of any person who is, or believes himself to be, directly affected by any processing of personal data for an assessment as to whether it is likely or unlikely thatthe processinghas beenoris beingcarried outincompliance with the provisions of this Act.

(2)        On receiving a request under this section, the Commissioner shall make an assessment in such manner as appears to him to be appropriate, unless he has not been supplied with such information as he may reasonably require in order to—

(a)     satisfy himself as to the identity of the person making therequest, and

(b)    enable him to identify the processing in question.

(3)        The matters to which the Commissioner may have regard in determining in what manner it is appropriate to make an assessment include—

(a)     the extent to which the request appears to him to raise a matterof substance,

(b)    any undue delay in making the request, and

(c)     whether or not the person making the request is entitled to makean application under section 7 in respect of the personal data in question.

(4)        Where the Commissioner has received a request under this section he shall notify the person who made the request—

(a)     whetherhehasmadeanassessmentasaresultoftherequest,and

(b)    to the extent that he considers appropriate, having regard inparticular to any exemption from section 7 applying in relation to the personal data concerned, of any view formed or action taken as a result of the request.

Information notices. 43.—(1) If the Commissioner—
  • has received a request under section 42 in respect of anyprocessing of personal data, or
  • reasonably requires any information for the purpose ofdetermining whether the data controller has complied or is complying with the data protection principles,

he may serve the data controller with a notice (in this Act referred to as “an information notice”) requiring the data controller, within such time as is specified in the notice, to furnish the Commissioner, in such form as may be so specified, with such information relating to the request or to compliance with the principles as is so specified.

(2) An information notice must contain—

  • in a case falling within subsection (1)(a), a statement that theCommissioner has received a request under section 42 in relation to the specified processing, or
  • in a case falling within subsection (1)(b), a statement that theCommissioner regards the specified information as relevant for the purpose of determining whether the data controller has complied, or is complying, with the data protection principles and his reasons for regarding it as relevant for that purpose.
  • An information notice must also contain particulars of the rights of appeal conferred by section 48.
  • Subject to subsection (5), the time specified in an information noticeshallnotexpirebeforetheendoftheperiodwithinwhichanappeal can be brought against the notice and, if such an appeal is brought, the information need not be furnished pending the determination or withdrawal of the appeal.
  • If by reason of special circumstances the Commissioner considers that the information is required as a matter of urgency, he may include in the notice a statement to that effect and a statement of his reasons for reaching that conclusion; and in that event subsection (4) shall not apply, but the notice shall not require the information to be furnished before the endoftheperiodofsevendaysbeginningwiththedayonwhichthenotice is served.
  • A person shall not be required by virtue of this section to furnish the Commissioner with any information in respect of—
    • any communication between a professional legal adviser and hisclient in connection with the giving of legal advice to the client with respect to his obligations, liabilities or rights under this Act, or
    • any communication between a professional legal adviser and hisclient, or between such an adviser or his client and any other person, made in connection with or in contemplation of proceedings under or arising out of this Act (including proceedings before the Tribunal) and for the purposes of such proceedings.
  • In subsection (6) references to the client of a professional legal adviser include references to any person representing such a client.
  • A person shall not be required by virtue of this section to furnish the Commissioner with any information if the furnishing of that information would, by revealing evidence of the commission of any offence other than an offence under this Act, expose him to proceedings for that offence.
  • The Commissioner may cancel an information notice by written notice to the person on whom it was served.
  • This section has effect subject to section 46(3).
44.—(1) If the Commissioner— Special
(a) has received a request under section 42 in respect of any processing of personal data, or information notices.

 

(b) has reasonable grounds for suspecting that, in a case in which proceedings have been stayed under section 32, the personal data to which the proceedings relate—

  • arenotbeingprocessedonlyforthespecialpurposes,or
  • are not being processed with a view to the publicationby any person of any journalistic, literary or artistic material which has not previously been published by the data controller,

he may serve the data controller with a notice (in this Act referred to as a “special information notice”) requiring the data controller, within such time as is specified in the notice, to furnish the Commissioner, in such form as may be so specified, with such information as is so specified for the purpose specified in subsection (2).

  • That purpose is the purpose of ascertaining—
    • whether the personal data are being processed only for thespecial purposes, or
    • whether they are being processed with a view to the publicationby any person of any journalistic, literary or artistic material which has not previously been published by the data controller.
  • A special information notice must contain—
    • in a case falling within paragraph (a) of subsection (1), astatement that the Commissioner has received a request under section 42 in relation to the specified processing, or
    • in a case falling within paragraph (b) of that subsection, astatement of the Commissioner’s grounds for suspecting that the personal data are not being processed as mentioned in that paragraph.
  • A special information notice must also contain particulars of the rights of appeal conferred by section 48.
  • Subjectto subsection(6),the timespecifiedina specialinformation noticeshallnotexpirebeforetheendoftheperiodwithinwhichanappeal can be brought against the notice and, if such an appeal is brought, the information need not be furnished pending the determination or withdrawal of the appeal.
  • If by reason of special circumstances the Commissioner considers that the information is required as a matter of urgency, he may include in the notice a statement to that effect and a statement of his reasons for reaching that conclusion; and in that event subsection (5) shall not apply, but the notice shall not require the information to be furnished before the endoftheperiodofsevendaysbeginningwiththedayonwhichthenotice is served.
  • A person shall not be required by virtue of this section to furnish the Commissioner with any information in respect of—
    • any communication between a professional legal adviser and hisclient in connection with the giving of legal advice to the client with respect to his obligations, liabilities or rights under this Act, or
    • any communication between a professional legal adviser and hisclient, or between such an adviser or his client and any other person, made in connection with or in contemplation of proceedings under or arising out of this Act (including proceedings before the Tribunal) and for the purposes of such proceedings.
  • In subsection (7) references to the client of a professional legal adviser include references to any person representing such a client.
  • A person shall not be required by virtue of this section to furnish the Commissioner with any information if the furnishing of that information would, by revealing evidence of the commission of any offence other than an offence under this Act, expose him to proceedings for that offence.
  • The Commissioner may cancel a special information notice by written notice to the person on whom it was served.

45.—(1) Where at anytime itappears to the Commissioner (whetheras         Determination by

 

a result of the service of a special information notice or otherwise) that Commissioner as
any personal data— to the special purposes.
  • are not being processed only for the special purposes, or
  • are not being processed with a view to the publication by anyperson of any journalistic, literary or artistic material which has not previously been published by the data controller,

he may make a determination in writing to that effect.

  • Notice of the determination shall be given to the data controller; and the notice must contain particulars of the right of appeal conferred by section 48.
  • A determination under subsection (1) shall not take effect until the end of the period within which an appeal can be brought and, where an appeal is brought, shall not take effect pending the determination or withdrawal of the appeal.

46.—(1) The Commissioner may not at any time serve an enforcement      Restriction on

 

notice on a data controller with respect to the processing of personal data enforcement in
for the special purposes unless— case of processing for the special
  • a determination under section 45(1) with respect to those data has taken effect, and
  • the court has granted leave for the notice to be served.
  • Thecourtshallnotgrantleaveforthepurposesofsubsection(1)(b) unless it is satisfied—
    • that the Commissioner has reason to suspect a contravention ofthe data protection principles which is of substantial public importance, and
    • except where the case is one of urgency, that the data controllerhas been given notice, in accordance with rules of court, of the application for leave.
  • The Commissioner may not serve an information notice on a data controller with respect to the processing of personal data for the special purposes unless a determination under section 45(1) with respect to those data has taken effect.
Failure to comply 47.—(1) A person who fails to comply with an enforcement notice, an
with notice. information notice or a special information notice is guilty of an offence.

(2)        Apersonwho,inpurportedcompliancewithaninformationnotice or a special information notice—

(a)  makes a statement which he knows to be false in a material

respect, or

(b) recklessly makes a statement which is false in a material respect,is guilty of an offence.

(3)        It is a defence for a person charged with an offence under subsection (1) to prove that he exercised all due diligence to comply with the notice in question.

Rights of appeal. 48.—(1) A person on whom an enforcement notice, an information notice or a special information notice has been served may appeal to the Tribunal against the notice.

(2)        A person on whom an enforcement notice has been served may appeal to the Tribunal against the refusal of an application under section 41(2) for cancellation or variation of the notice.

(3)        Where an enforcement notice, an information notice or a special information notice contains a statement by the Commissioner in accordance with section 40(8), 43(5) or 44(6) then, whether or not the person appeals against the notice, he may appeal against—

(a)     the Commissioner’s decision to include the statement in thenotice, or

(b)    the effect of the inclusion of the statement as respects any part of the notice.

(4)        A data controller in respect of whom a determination has been made under section 45 may appeal to the Tribunal against the determination.

(5)        Schedule 6 has effect in relation to appeals under this section and the proceedings of the Tribunal in respect of any such appeal.

Determination of 49.—(1) If on an appeal under section 48(1) the Tribunal considers—
appeals. (a) that the notice against which the appeal is brought is not in accordance with the law, or

(b) to the extent that the notice involved an exercise of discretion by theCommissioner,thatheoughttohaveexercisedhisdiscretion differently,

the Tribunal shall allow the appeal or substitute such other notice or decision as could have been served or made by the Commissioner; and in any other case the Tribunal shall dismiss the appeal.

  • On such an appeal, the Tribunal may review any determination of fact on which the notice in question was based.
  • If on an appeal under section 48(2) the Tribunal considers that the enforcement notice ought to be cancelled or varied by reason of a change in circumstances, the Tribunal shall cancel or vary the notice.
  • On an appeal under subsection (3) of section 48 the Tribunal may direct—
  • that the noticeinquestion shallhaveeffectas if itdid notcontain any such statement as is mentioned in that subsection, or
  • thattheinclusionofthestatementshallnothaveeffectinrelation to any part of the notice,

and may make such modifications in the notice as may be required for giving effect to the direction.

  • On an appeal under section 48(4), the Tribunal may cancel the determination of the Commissioner.
  • AnypartytoanappealtotheTribunalundersection48mayappeal from the decision of the Tribunal on a point of law to the appropriate court; and that court shall be—
    • the High Court of Justice in England if the address of the personwho was the appellant before the Tribunal is in England or Wales,
    • the Court of Session if that address is in Scotland, and
    • the High Court of Justice in Northern Ireland if that address isin Northern Ireland.
  • For the purposes of subsection (6)—
    • the address of a registered company is that of its registeredoffice, and
    • the address of a person (other than a registered company) carrying on a business is that of his principal place of business in the United Kingdom.
50. Schedule 9 (powers of entry and inspection) has effect.

Part VI

Miscellaneous and General

Functions of Commissioner

Powers of entry and inspection.
51.—(1) It shall be the duty of the Commissioner to promote the General duties of
following of good practice by data controllers and, in particular, so to perform his functions under this Act as to promote the observance of the requirements of this Act by data controllers. Commissioner.
  • TheCommissionershallarrangeforthedisseminationinsuchform and manner as he considers appropriate of such information as it may appear to him expedient to give to the public about the operation of this Act, about good practice, and about other matters within the scope of his functions under this Act, and may give advice to any person as to any of those matters.
  • Where—
    • the Secretary of State so directs by order, or
    • the Commissioner considers it appropriate to do so,the Commissioner shall, after such consultation with trade associations, data subjects or persons representing data subjects as appears to him to be appropriate, prepare and disseminate to such persons as he considers appropriate codes of practice for guidance as to good practice.
  • The Commissioner shall also—

 

  • where he considers it appropriate to do so, encourage tradeassociations to prepare, and to disseminate to their members, such codes of practice, and
  • whereanytradeassociationsubmitsacodeofpracticetohimforhisconsideration,considerthecodeand,aftersuchconsultation with data subjects or persons representing data subjects as appears to him to be appropriate, notify the trade association whether in his opinion the code promotes the following of good practice.
  • An order under subsection (3) shall describe the personal data or processingtowhichthecodeofpracticeistorelate,andmayalsodescribe the persons or classes of persons to whom it is to relate.
  • TheCommissionershallarrangeforthedisseminationinsuchform and manner as he considers appropriate of—
    • any Community finding as defined by paragraph 15(2) of Part IIof Schedule 1,
    • any decision of the European Commission, under the procedureprovided for in Article 31(2) of the Data Protection Directive, which is made for the purposes of Article 26(3) or (4) of the Directive, and
    • such other information as it may appear to him to be expedienttogive todata controllersinrelationto anypersonaldata about the protection of the rights and freedoms of data subjects in relation to the processing of personal data in countries and territories outside the European Economic Area.
  • The Commissioner may, with the consent of the data controller, assess any processing of personal data for the following of good practice and shall inform the data controller of the results of the assessment.
  • The Commissioner may charge such sums as he may with the consent of the Secretary of State determine for any services provided by the Commissioner by virtue of this Part.
  • In this section—

“good practice” means such practice in the processing of personal data as appears to the Commissioner to be desirable having regard to the interests of data subjects and others, and includes (but is not limited to) compliance with the requirements of this Act;

“trade association” includes any body representing data controllers.

Reports and codes                     52.—(1) The Commissioner shall lay annually before each House of

of practice to be laid before ParliamentageneralreportontheexerciseofhisfunctionsunderthisAct.
Parliament. (2) The Commissioner may from time to time lay before each House of Parliament such other reports with respect to those functions as he thinks fit.

(3) The Commissioner shall lay before each House of Parliament any code of practice prepared under section 51(3) for complying with a direction of the Secretary of State, unless the code is included in any report laid under subsection (1) or (2).

53.—(1) An individual who is an actual or prospective party to any Assistance by
proceedings under section 7(9), 10(4), 12(8) or 14 or by virtue of section Commissioner in
13 which relate to personal data processed for the special purposes may cases involving
applytotheCommissionerforassistanceinrelationtothoseproceedings.

(2)        The Commissioner shall, as soon as reasonably practicable after receiving an application under subsection (1), consider it and decide whether and to what extent to grant it, but he shall not grant the applicationunless,inhisopinion,thecaseinvolvesamatterofsubstantial public importance.

(3)        Ifthe Commissionerdecidesto provideassistance,heshall, assoon as reasonably practicable after making the decision, notify the applicant, stating the extent of the assistance to be provided.

(4)        If the Commissioner decides not to provide assistance, he shall, as soon as reasonably practicable after making the decision, notify the applicant of his decision and, if he thinks fit, the reasons for it.

(5)        In this section—

(a)     references to “proceedings” include references to prospectiveproceedings, and

(b)    “applicant”, in relation to assistance under this section, meansan individual who applies for assistance.

(6)        Schedule 10 has effect for supplementing this section.

processing for the special purposes.
54.—(1) The Commissioner— International co-
(a) shall continue to be the designated authority in the United Kingdom for the purposes of Article 13 of the Convention, and operation.

(b) shallbe thesupervisory authorityinthe UnitedKingdom forthe purposes of the Data Protection Directive.

  • The Secretary of State may by order make provision as to the functions to be discharged by the Commissioner as the designated authority in the United Kingdom for the purposes of Article 13 of the Convention.
  • The Secretary of State may by order make provision as to cooperationby theCommissioner withthe EuropeanCommission andwith supervisory authorities in other EEA States in connection with the performance of their respective duties and, in particular, as to—
    • the exchange of information with supervisory authorities inother EEA States or with the European Commission, and
    • the exercise within the United Kingdom at the request of asupervisory authority in another EEA State, in cases excluded by section 5 from the application of the other provisions of this Act, of functions of the Commissioner specified in the order.
  • The Commissioner shall also carry out any data protection functions which the Secretary of State may by order direct him to carry out for the purpose of enabling Her Majesty’s Government in the United Kingdom to give effect to any international obligations of the United Kingdom.
  • The Commissioner shall, if so directed by the Secretary of State, provide any authority exercising data protection functions under the law of a colony specified in the direction with such assistance in connection with the discharge of those functions as the Secretary of State may direct or approve, on such terms (including terms as to payment) as the Secretary of State may direct or approve.
  • Where the European Commission makes a decision for the purposesofArticle26(3)or(4)oftheDataProtectionDirectiveunderthe procedure provided for in Article 31(2) of the Directive, the Commissioner shall comply with that decision in exercising his functions under paragraph 9 of Schedule 4 or, as the case may be, paragraph 8 of that Schedule.
  • TheCommissionershallinformtheEuropeanCommissionandthe supervisory authorities in other EEA States—
    • of any approvals granted for the purposes of paragraph 8 ofSchedule 4, and
    • of anyauthorisations granted for thepurposes of paragraph 9 ofthat Schedule.
  • In this section—

“the Convention” means the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data which was opened for signature on 28th January 1981;

“data protection functions” means functions relating to the protection of individuals with respect to the processing of personal information.

Unlawful obtaining etc. of personal data

Unlawful 55.—(1) A person must not knowingly or recklessly, without the
obtaining etc. of personal data. consent of the data controller—
  • obtain or disclose personal data or the information contained inpersonal data, or
  • procure the disclosure to another person of the informationcontained in personal data.

(2) Subsection (1) does not apply to a person who shows— (a) that the obtaining, disclosing or procuring—

  • was necessary for the purpose of preventing ordetecting crime, or
  • was requiredor authorisedby or underany enactment,by any rule of law or by the order of a court,
  • that he acted in the reasonable belief that he had in law the rightto obtain or disclose the data or information or, as the case may be, to procure the disclosure of the information to the other person,
  • that he acted in the reasonable belief that he would have had theconsent of the data controller if the data controller had known of the obtaining, disclosing or procuring and the circumstances of it, or
  • that in the particular circumstances the obtaining, disclosing orprocuring was justified as being in the public interest.
  • A person who contravenes subsection (1) is guilty of an offence.
  • A person who sells personal data is guilty of an offence if he has obtained the data in contravention of subsection (1).
  • A person who offers to sell personal data is guilty of an offence if— (a) he has obtained the data in contravention of subsection (1), or

(b) he subsequently obtains the data in contravention of that subsection.

  • For the purposes of subsection (5), an advertisement indicating that personal data are or may be for sale is an offer to sell the data.
  • Section 1(2) does not apply for the purposes of this section; and for the purposes of subsections (4) to (6), “personal data” includes information extracted from personal data.
  • Referencesinthissectiontopersonaldatadonotincludereferences to personal data which by virtue of section 28 are exempt from this section.

Records obtained under data subject’s right of access

56.—(1) A person must not, in connection with— Prohibition of
(a) the recruitment of another person as an employee, requirement as to production of
(b)    the continued employment of another person, or

(c)     any contract for the provision of services to him by anotherperson,

require that other person or a third party to supply him with a relevant record or to produce a relevant record to him.

(2)     A person concerned with the provision (for payment or not) of goods, facilities or services to the public or a section of the public must not,asaconditionofprovidingorofferingtoprovideanygoods,facilities or servicesto another person, requirethat other person or a third partyto supply him with a relevant record or to produce a relevant record to him.

(3)     Subsections (1) and (2) do not apply to a person who shows—

(a)     that the imposition of the requirement was required orauthorised by or under any enactment, by any rule of law or by the order of a court, or

(b)    that in the particular circumstances the imposition of therequirement was justified as being in the public interest.

certain records.
(4) Having regard to the provisions of Part V of the Police Act 1997 1997 c. 50.

(certificates of criminal records etc.), the imposition of the requirement referred to in subsection (1) or (2) is not to be regarded as being justified as being in the public interest on the ground that it would assist in the prevention or detection of crime.

  • A person who contravenes subsection (1) or (2) is guilty of an offence.
  • In this section “a relevant record” means any record which—
    • has been or is to be obtained by a data subject from any datacontroller specified in the first column of the Table below in the exercise of the right conferred by section 7, and
    • contains information relating to any matter specified in relationto that data controller in the second column, and includes a copy of such a record or a part of such a record.

TABLE

Data controller Subject-matter
1.   Any of the following persons—

(a)         a chief officer of police of a police force in England and Wales.

(b)        a chief constable of a policeforce in Scotland.

(c)         the Chief Constable of theRoyal Ulster Constabulary.

(d)        the Director General of theNational Criminal

Intelligence Service.

(e)         the Director General of theNational Crime Squad.

2.   The Secretary of State.

3.   The Department of Health

(a) Convictions. (b) Cautions.

(a)      Convictions.

(b)     Cautions.

(c)      His functions under section

53 of the Children and Young Persons Act 1933, section 205(2) or 208 of the Criminal Procedure (Scotland) Act 1995 or section 73 of the Children and Young Persons Act

(Northern Ireland) 1968 in relation to any person sentenced to detention.

(d)     His functions under thePrison Act 1952, the Prisons (Scotland) Act 1989 or the Prison Act (Northern

Ireland) 1953 in relation to any person imprisoned or detained.

(e)      His functions under the

SocialSecurity Contributions and Benefits Act 1992, the

SocialSecurityAdministration Act 1992 or the Jobseekers Act 1995.

(f)      His functions under Part Vof the Police Act 1997.

Its functions under the Social

and      Social   Services           for       Security Contributions and Northern Ireland.     Benefits (Northern Ireland)

Act 1992, the Social Security Administration  (Northern Ireland) Act 1992 or the Jobseekers    (Northern

Ireland) Order 1995.

  • In the Table in subsection (6)—

“caution” means a caution given to any person in England and Wales or Northern Ireland in respect of an offence which, at the time when the caution is given, is admitted;

“conviction” has the same meaning as in the Rehabilitation of 1974 c. 53.
Offenders Act 1974 or the Rehabilitation of Offenders S.I. 1978/1908
(Northern Ireland) Order 1978.

(8)       The Secretary of State may by order amend— (a) the Table in subsection (6), and (b) subsection (7).

(9)       For the purposes of this section a record which states that a data controller is not processing any personal data relating to a particular matter shall be taken to be a record containing information relating to that matter.

(10)    In this section “employee” means an individual who—

(a) works under a contract of employment, as defined by section

(N.I.27)
230(2) of the Employment Rights Act 1996, or

(b) holds any office, whether or not he is entitledto remuneration; and “employment” shall be construed accordingly.

1996 c. 18.
57.—(1) Any term or condition of a contract is void in so far as it Avoidance of
purports to require an individual— certain
(a) to supply any other person with a record to which this section contractual terms relating to health
applies, or with a copy of such a record or a part of such a record, or

(b) to produce to any other person such a record, copy or part.

(2) This section applies to any record which—

(a)     has been or is to be obtained by a data subject in the exercise ofthe right conferred by section 7, and

(b)    consists of the information contained in any health record asdefined by section 68(2).

Information provided to Commissioner or Tribunal

records.
58.Noenactmentorruleoflawprohibitingorrestrictingthedisclosure Disclosure of
ofinformationshallprecludeapersonfromfurnishingtheCommissioner or the Tribunal with any information necessary for the discharge of their functions under this Act. information.
59.—(1) No person who is or has been the Commissioner, a member of Confidentiality of
the Commissioner’s staff or an agent of the Commissioner shall disclose any information which— information.
  • has been obtained by, or furnished to, the Commissioner underor for the purposes of this Act,
  • relates to an identified or identifiable individual or business, and
  • is not at the time of the disclosure, and has not previously been,available to the public from other sources,

unless the disclosure is made with lawful authority.

(2) For the purposes of subsection (1) a disclosure of information is made with lawful authority only if, and to the extent that—

  • the disclosureis madewith the consentof theindividual orof theperson for the time being carrying on the business,
  • the information was provided for the purpose of its being madeavailable to the public (in whatever manner) under any provision of this Act,
  • the disclosure is made for the purposes of, and is necessary for,the discharge of—
    • any functions under this Act, or
    • any Community obligation,
  • the disclosure is made for the purposes of any proceedings,whethercriminalorcivilandwhetherarisingunder,orbyvirtue of, this Act or otherwise, or
  • having regard to the rights and freedoms or legitimate interestsof any person, the disclosure is necessary in the public interest.

(3) Any person who knowingly or recklessly discloses information in contravention of subsection (1) is guilty of an offence.

General provisions relating to offences

Prosecutions and     60.—(1) No proceedings for an offence under this Act shall be penalties.     instituted—

  • in England or Wales, except by the Commissioner or by or withthe consent of the Director of Public Prosecutions;
  • in Northern Ireland, except by the Commissioner or by or withthe consent of the Director of Public Prosecutions for Northern Ireland.

(2) A person guilty of an offence under any provision of this Act other than paragraph 12 of Schedule 9 is liable—

  • on summary conviction, to a fine not exceeding the statutorymaximum, or
  • on conviction on indictment, to a fine.
  • A person guilty of an offence under paragraph 12 of Schedule 9 is liable on summary conviction to a fine not exceeding level 5 on the standard scale.
  • Subject to subsection (5), the court by or before which a person is convicted of—
  • an offence under section 21(1), 22(6), 55 or 56,
  • an offence under section 21(2) relating to processing which is assessable processing for the purposes of section 22, or
  • an offence under section 47(1) relating to an enforcement notice, may order any document or other material used in connection with the processing of personal data and appearing to the court to be connected with the commission of the offence to be forfeited, destroyed or erased.

(5) The court shall not make an order under subsection (4) in relation to any material where a person (other than the offender) claiming to be the owner of or otherwise interested in the material applies to beheard by the court, unless an opportunity is given to him to show cause why the order should not be made.

61.—(1)WhereanoffenceunderthisActhasbeencommittedbyabody Liability of
corporate and is proved to have been committed with the consent or connivance of or to be attributable to any neglect on the part of any director, manager, secretary or similar officer of the body corporate or any person who was purporting to act in any such capacity, he as well as the body corporate shall be guilty of that offence and be liable to be proceeded against and punished accordingly.

(2)        Where the affairs of a body corporate are managed by its members subsection (1) shall apply in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate.

(3)        Where an offence under this Act has been committed by a Scottish partnership and the contravention in question is proved to have occurred with the consent or connivance of, or to be attributable to any neglect on the part of, a partner, he as well as the partnership shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

Amendments of Consumer Credit Act 1974

directors etc.
62.—(1) In section 158 of the Consumer Credit Act 1974 (duty of Amendments of
agency to disclose filed information)— Consumer Credit
(a) in subsection (1)—

(i)                  in paragraph (a) for “individual” there is substituted“partnership or other unincorporated body of persons not consisting entirely of bodies corporate”, and

(ii)                for “him” there is substituted “it”,

Act 1974.

1974 c. 39.

  • in subsection        (2),       for       “his”    there    is          substituted       “the consumer’s”, and
  • in subsection (3), for “him” there is substituted “the consumer”.
  • In section 159 of that Act (correction of wrong information) for subsection (1) there is substituted—

“(1) Any individual (the “objector”) given—

  • information under section 7 of the Data Protection Act

1998 by a credit reference agency, or

  • information under section 158,who considers that an entry in his file is incorrect, and that if it is not corrected he is likely to be prejudiced, may give notice to the agency requiring it either to remove the entry from the file or amend it.”
  • In subsections (2) to (6) of that section—

 

  • for “consumer”, wherever occurring, there is substituted“objector”, and
  • for “Director”, wherever occurring, there is substituted “therelevant authority”.
  • After subsection (6) of that section there is inserted—

“(7) The Data Protection Commissioner may vary or revoke any order made by him under this section.

(8) In this section “the relevant authority” means—

  • wheretheobjectorisapartnershiporotherunincorporatedbody of persons, the Director, and
  • in any other case, the Data Protection Commissioner.”
  • In section 160 of that Act (alternative procedure for business consumers)—

(a) in subsection (4)—

  • for “him” there is substituted “to the consumer”, and
  • in paragraphs (a) and (b) for “he” there is substituted“the consumer” and for “his” there is substituted “the consumer’s”, and

(b) after subsection (6) there is inserted—

“(7) In this section “consumer” has the same meaning as in section 158.”

General

Application to Crown. 63.—(1) This Act binds the Crown.

(2)        For the purposes of this Act each government department shall be treated as a person separate from any other government department.

(3)        Where the purposes for which and the manner in which any personal data are, or are to be, processed are determined by any person acting on behalf of the Royal Household, the Duchy of Lancaster or the Duchy of Cornwall, the data controller in respect of those data for the purposes of this Act shall be—

(a)     in relation to the Royal Household, the Keeper of the Privy

Purse,

(b)    in relation to the Duchy of Lancaster, such person as theChancellor of the Duchy appoints, and

(c)     in relation to the Duchy of Cornwall, such person as the Dukeof Cornwall, or the possessor for the time being of the Duchy of Cornwall, appoints.

(4)        Different persons may be appointed under subsection (3)(b) or (c) for different purposes.

(5)        Neither a government department nor a person who is a data controller by virtue of subsection (3) shall be liable to prosecution under this Act, but section 55 and paragraph 12 of Schedule 9 shall apply to a person in the service of the Crown as they apply to any other person.

Transmission of 64.—(1) This section applies to—
notices etc. by electronic or other means. (a) a notice or request under any provision of Part II,
  • a notice under subsection (1) of section 24 or particulars madeavailable under that subsection, or
  • an application under section 41(2),but does not apply to anything which is required to be served in accordance with rules of court.
  • The requirement      that      any      notice,  request, particulars        or application to which this section applies should be in writing is satisfied where the text of the notice, request, particulars or application—
    • is transmitted by electronic means,
    • is received in legible form, and
    • is capable of being used for subsequent reference.
  • The Secretary of State may by regulations provide that any requirement that any notice, request, particulars or application to which this section applies should be in writing is not to apply in such circumstances as may be prescribed by the regulations.
65.—(1) Any notice authorised or required by this Act to be served on Service of notices
or given to any person by the Commissioner may—

(a)     if that person is an individual, be served on him—

(i)                     by delivering it to him, or

(ii)                   by sending it to him by post addressed to him at hisusual or last-known place of residence or business, or

(iii)                 by leaving it for him at that place;

(b)    if that person is a body corporate or unincorporate, beserved onthat body—

(i)                     by sending it by post to the proper officer of the body at its principal office, or

(ii)                   by addressing it to the proper officer of the body and leaving it at that office;

(c)     if that person is a partnership in Scotland, be served on thatpartnership—

(i)                     by sending it by post to the principal office of the partnership, or

(ii)                   by addressing it to that partnership and leaving it atthat office.

(2)        In subsection (1)(b) “principal office”, in relation to a registered company, means its registered office and “proper officer”, in relation to any body, means the secretary or other executive officer charged with the conduct of its general affairs.

(3)        This section is without prejudice to any other lawful method of serving or giving a notice.

by Commissioner.
66.—(1) Where a question falls to be determined in Scotland as to the Exercise of rights
legal capacity of a person under the age of sixteen years to exercise any in Scotland by
right conferred by any provision of this Act, that person shall be taken to havethat capacity where he has a general understanding of what it means to exercise that right. children.

(2) Without prejudice to the generality of subsection (1), a person of twelve years of age or more shall be presumed to be of sufficient age and maturity to have such understanding as is mentioned in that subsection.

Orders,    67.—(1) Any power conferred by this Act on the Secretary of State to regulations and              make an order, regulations or rules shall be exercisable by statutory rules. instrument.

(2) Any order, regulations or rules made by the Secretary of State under this Act may—

  • make different provision for different cases, and
  • make such supplemental, incidental, consequential or transitional provision or savings as the Secretary of State considers appropriate;

and nothing in section 7(11), 19(5), 26(1) or 30(4) limits the generality of paragraph (a).

(3) Before making—

  • anorderunderanyprovisionofthisActotherthansection75(3),
  • any regulations under this Act other than notification regulations (as defined by section 16(2)),

the Secretary of State shall consult the Commissioner.

  • A statutory instrument containing (whether alone or with other provisions) an order under—

section 10(2)(b), section 12(5)(b), section 22(1), section 30, section 32(3), section 38, section 56(8), paragraph 10 of Schedule 3, or paragraph 4 of Schedule 7,

shallnotbemadeunlessadraftoftheinstrumenthasbeenlaidbeforeand approved by a resolution of each House of Parliament.

  • A statutory instrument which contains (whether alone or with other provisions)—
    • an order under—section 22(7), section 23, section 51(3), section 54(2), (3) or (4), paragraph 3, 4 or 14 of Part II of Schedule 1, paragraph 6 of Schedule 2, paragraph 2, 7 or 9 of Schedule 3, paragraph 4 of Schedule 4, paragraph 6 of Schedule 7,
    • regulations under section 7 which—
  • prescribe cases for the purposes of subsection (2)(b),
  • are made by virtue of subsection (7), or
  • relate to the definition of “the prescribed period”,
  • regulations under section 8(1) or 9(3),
  • regulations under section 64,
  • notification regulations (as defined by section 16(2)), or
  • rules under paragraph 7 of Schedule 6,and which is not subject to the requirement in subsection (4) that a draft of the instrument be laid before and approved by a resolution of each House of Parliament, shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(6) A statutory instrument which contains only—

  • regulations prescribing fees for the purposes of any provision ofthis Act, or
  • regulations under section 7 prescribing fees for the purposes ofany other enactment,

shall be laid before Parliament after being made.

68.—(1) In this Act “accessible record” means— Meaning of
(a) a health record as defined by subsection (2), (b) an educational record as defined by Schedule 11, or

(c) an accessible public record as defined by Schedule 12.

(2) In subsection (1)(a) “health record” means any record which—

(a)     consists of information relating to the physical or mental healthor condition of an individual, and

(b)    has been made by or on behalf of a health professional inconnection with the care of that individual.

“accessible record”.
69.—(1)InthisAct“healthprofessional”meansanyofthefollowing— Meaning of
(a) a registered medical practitioner, “health professional”.
(b) a registered dentist as defined by section 53(1) of the Dentists Act 1984, 1984 c. 24.
(c)     a registered optician as defined by section 36(1) of the OpticiansAct 1989,

(d)    a registered pharmaceutical chemist as defined by section 24(1)

1989 c. 44.
of the Pharmacy Act 1954 or a registered person as defined by 1954 c. 61.
Article 2(2) of the Pharmacy (Northern Ireland) Order 1976, S.I. 1976/1213
(e) a registered nurse, midwife or health visitor, (N.I.22).
(f)     a registered osteopath as defined by section 41 of the OsteopathsAct 1993,

(g)    a registered chiropractor as defined by section 43 of the

1993 c. 21.
Chiropractors Act 1994,

(h) any person who is registered as a member of a profession to

1994 c. 17.
which the Professions Supplementary to Medicine Act 1960 for the time being extends, 1960 c. 66.
  • a clinical psychologist, child psychotherapist or speech therapist,
  • a music therapist employed by a health service body, and
  • a scientist employed by such a body as head of a department.
(2) In subsection (1)(a) “registered medical practitioner” includes any person who is provisionally registered under section 15 or 21 of the
1983 c. 54. Medical Act 1983 and is engaged in such employment as is mentioned in subsection (3) of that section.

(3) In subsection (1) “health service body” means—

1977 c. 49. (a)     a Health Authority established under section 8 of the NationalHealth Service Act 1977,

(b)    a Special Health Authority established under section 11 of thatAct,

1978 c. 29. (c)     a Health Board within the meaning of the National HealthService (Scotland) Act 1978,

(d)    a Special Health Board within the meaning of that Act,

(e)     the managers of a State Hospital provided under section 102 ofthat Act,

(f)     a National Health Service trust first established under section 5

1990 c. 19. of the National Health Service and Community Care Act 1990 or section 12A of the National Health Service (Scotland) Act 1978,

(g) a Health and Social Services Board established under Article 16

S.I. 1972/1265 of the Health and Personal Social Services (Northern Ireland)
(N.I.14). Order 1972,

(h) a special health and social services agency established under the

S.I. 1990/247                         Health and Personal            Social Services (Special Agencies)
(N.I.3). (Northern Ireland) Order 1990, or

(i) a Health and Social Services trust established under Article 10 of

S.I.1991/194 the Health and Personal Social Services (Northern Ireland)
(N.I.1). Order 1991.
Supplementary 70.—(1) In this Act, unless the context otherwise requires—
definitions. “business” includes any trade or profession;

“the Commissioner” means the Data Protection Commissioner;

1974 c. 39. “credit reference agency” has the same meaning as in the Consumer Credit Act 1974;

“the Data Protection Directive” means Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data;

“EEA State” means a State which is a contracting party to the Agreement on the European Economic Area signed at Oporto on 2nd May 1992 as adjusted by the Protocol signed at Brussels on 17th March 1993;

“enactment” includes an enactment passed after this Act;

“government department” includes a Northern Ireland department and any body or authority exercising statutory functions on behalf of the Crown;

“Minister of the Crown” has the same meaning as in the Ministers

1975 c. 26. of the Crown Act 1975;

“publicregister”meansanyregisterwhichpursuanttoarequirement imposed—

  • by or under any enactment, or
  • in pursuance of any international agreement,is open to public inspection or open to inspection by any person having a legitimate interest;

“pupil”—

(a) in relation to a school in England and Wales, means a
registered pupil within the meaning of the Education Act 1996,

(b) in relation to a school in Scotland, means a pupil

1996 c. 56.
within the meaning of the Education (Scotland) Act 1980, and

(c) in relation to a school in Northern Ireland, means a

1980 c. 44.
registered pupil within the meaning of the Education and S.I. 1986/594
Libraries (Northern Ireland) Order 1986; (N.I.3).

“recipient”, in relation to any personal data, means any person to whom the data are disclosed, including any person (such as an employee or agent of the data controller, a data processor or an employee or agent of a data processor) to whom they are disclosed in the course of processing the data for the data controller, but does not include any person to whom disclosure is or may be made as a result of, or with a view to, a particular inquiry by or on behalf of that person made in the exercise of any power conferred by law;

“registered company” means a company registered under the enactments relating to companies for the time being in force in the United Kingdom;

“school”—

  • in relation to England and Wales, has the samemeaning as in the Education Act 1996,
  • in relation to Scotland, has the same meaning as in theEducation (Scotland) Act 1980, and
  • in relation to Northern Ireland, has the same meaningas in the Education and Libraries (Northern Ireland) Order 1986;

“teacher” includes—

  • in Great Britain, head teacher, and
  • in Northern Ireland, the principal of a school;

“third party”, in relation to personal data, means any person other than—

  • the data subject,
  • the data controller, or
  • any data processor or other person authorised toprocess data for the data controller or processor; “the Tribunal” means the Data Protection Tribunal.

(2) ForthepurposesofthisActdataareinaccurateiftheyareincorrect or misleading as to any matter of fact.

 

Index of defined                               71. The following Table shows provisions defining or otherwise

expressions.                    explaining expressions used in this Act (other than provisions defining or

explaining an expression only used in the same section or Schedule)—

accessible record                                                  section 68

address (in Part III)                                              section 16(3)

business                                                               section 70(1)

the Commissioner                                                section 70(1)

credit reference agency                                         section 70(1)

data                                                                     section 1(1)

data controller                                                      sections 1(1) and (4)

and 63(3)

data processor                                                      section 1(1)

the Data Protection Directive                               section 70(1)

data protection principles                                   section 4 and Schedule 1

data subject                                                          section 1(1)

disclosing (of personal data)                                 section 1(2)(b)

EEA State                                                            section 70(1)

enactment                                                            section 70(1)

enforcement notice                                               section 40(1)

fees regulations (in Part III)                                  section 16(2)

government department                                        section 70(1)

health professional                                               section 69

inaccurate (in relation to data)                              section 70(2)

information notice                                               section 43(1)

Minister of the Crown                                          section 70(1)

the non-disclosure provisions (in Part IV)             section 27(3)

notification regulations (in Part III)                      section 16(2)

obtaining (of personal data)                                 section 1(2)(a)

personal data                                                       section 1(1)

prescribed (in Part III)                                          section 16(2)

processing (of information or data)                       section 1(1) and

paragraph 5 of

Schedule 8

public register                                                      section 70(1)

publish (in relation to journalistic, literary            section 32(6)

or artistic material)

pupil (in relation to a school)                               section 70(1)

recipient (in relation to personal data)                  section 70(1)

recording (of personal data)                                 section 1(2)(a)

registered company                                              section 70(1)

registrable particulars (in Part III)                        section 16(1)

relevant filing system                                           section 1(1)

school                                                                  section 70(1)

sensitive personal data                                         section 2

special information notice                                    section 44(1)

the special purposes                                             section 3

the subject information provisions (in Part            section 27(2)

IV)

teacher                                                                 section 70(1)

third party (in relation to processing of                 section 70(1)

personal data)

the Tribunal                                                         section 70(1)

using (of personal data)                                        section 1(2)(b).

 

22-10-98 01:35:50

Data Protection Act 1998

Part VI

72.Duringtheperiodbeginningwiththecommencementofthissection Modifications of
and ending with 23rd October 2007, the provisions of this Act shall have effect subject to the modifications set out in Schedule 13. Act.
73. Schedule 14 (which contains transitional provisions and savings) Transitional
has effect. provisions and savings.
74.—(1) Schedule 15 (which contains minor and consequential Minor and
amendments) has effect. consequential amendments and
(2) The enactments and instruments specified in Schedule 16 are repeals and
repealed or revoked to the extent specified. revocations.
75.—(1) This Act may be cited as the Data Protection Act 1998. Short title,

commencement

(2)        The following provisions of this Act—

(a)     sections 1 to 3,

(b)    section 25(1) and (4),

(c)     section 26,

(d)    sections 67 to 71,

(e)     this section,

(f)     paragraph 17 of Schedule 5,

(g)    Schedule 11,

(h)    Schedule 12, and

(i)      so much of any other provision of this Act as confers any powerto make subordinate legislation,

shall come into force on the day on which this Act is passed.

(3)        The remaining provisions of this Act shall come into force on such day as the Secretary of State may by order appoint; and different days may be appointed for different purposes.

(4)        The day appointed under subsection (3) for the coming into force of section 56 must not be earlier than the first day on which sections 112,

and extent.
113 and 115 of the Police Act 1997 (which provide for the issue by the Secretary of State of criminal conviction certificates, criminal record certificates and enhanced criminal record certificates) are all in force. 1997 c. 50.
  • Subject to subsection (6), this Act extends to Northern Ireland.
  • Any amendment, repeal or revocation made by Schedule 15 or 16 has the same extent as that of the enactment or instrument to which it relates.

SCHEDULES

Section 4(1) and                                                                       SCHEDULE 1

(2).

The data protection principles

Part I

The principles

  1. Personal data shall be processed fairly and lawfully and, in particular, shallnot be processed unless—
    • at least one of the conditions in Schedule 2 is met, and
    • in the case of sensitive personal data, at least one of the conditions inSchedule 3 is also met.
  2. Personal data shall be obtained only for one or more specified and lawfulpurposes, and shall not be further processed in any manner incompatible with that purpose or those purposes.
  3. Personal data shall be adequate, relevant and not excessive in relation to thepurpose or purposes for which they are processed.
  4. Personal data shall be accurate and, where necessary, kept up to date.
  5. Personal data processed for any purpose or purposes shall not be kept forlonger than is necessary for that purpose or those purposes.
  6. Personal data shall be processed in accordance with the rights of datasubjects under this Act.
  7. Appropriate technical and organisational measures shall be taken againstunauthorised or unlawfulprocessing ofpersonaldata and againstaccidental loss or destruction of, or damage to, personal data.
  8. Personal data shall not be transferred to a country or territory outside theEuropean Economic Area unless that country or territory ensures an adequate level of protection for the rights and freedoms of data subjects in relation to the processing of personal data.

Part II

Interpretation of the principles in Part I

The first principle

1.—(1) In determining for the purposes of the first principle whether personal data are processed fairly, regard is to be had to the method by which they are obtained, including in particular whether any person from whom they are obtained is deceived or misled as to the purpose or purposes for which they are to be processed.

(2) Subject to paragraph 2, for the purposes of the first principle data are to be treated as obtained fairly if they consist of information obtained from a person who—

  • is authorised by or under any enactment to supply it, or
  • is required to supply it by or under any enactment or by any conventionorotherinstrumentimposinganinternationalobligationontheUnited Kingdom.

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2.—(1) Subject to paragraph 3, for the purposes of the first principle personal data are not to be treated as processed fairly unless—

  • in the case of data obtained from the data subject, the data controllerensures so far as practicable that the data subject has, is provided with, or has made readily available to him, the information specified in subparagraph (3), and
  • in any other case, the data controller ensures so far as practicable that,before the relevant time or as soon as practicable after that time, the data subjecthas,isprovided with,orhas madereadilyavailabletohim, the information specified in sub-paragraph (3).
  • In sub-paragraph (1)(b) “the relevant time” means— (a) the time when the data controller first processes the data, or
    • in a case where at that time disclosure to a third party within areasonable period is envisaged—
      • if the data are in fact disclosed to such a person within thatperiod, the time when the data are first disclosed,
      • if within that period the data controller becomes, or ought tobecome, aware that the data are unlikely to be disclosed to such a person within that period, the time when the data controller does become, or ought to become, so aware, or
      • in any other case, the end of that period.
    • The information referred to in sub-paragraph (1) is as follows, namely— (a) the identity of the data controller,
      • if he has nominated a representative for the purposes of this Act, theidentity of that representative,
      • the purpose or purposes for which the data are intended to beprocessed, and
      • anyfurtherinformationwhichisnecessary,havingregardtothespecificcircumstances in which the data are or are to be processed, to enable processing in respect of the data subject to be fair.

3.—(1) Paragraph 2(1)(b) does not apply where either of the primary conditions in sub-paragraph (2), together withsuch further conditions asmay be prescribed by the Secretary of State by order, are met.

(2) The primary conditions referred to in sub-paragraph (1) are—

  • thatthe provision ofthat informationwouldinvolve adisproportionateeffort, or
  • that the recording of the information to be contained in the data by, orthe disclosure of the data by, the data controller is necessary for compliance with any legal obligation to which the data controller is subject, other than an obligation imposed by contract.

4.—(1) Personal data which contain a general identifier falling within a description prescribed by the Secretary of State by order are not to be treated as processed fairly and lawfully unless they are processed in compliance with any conditions so prescribed in relation to general identifiers of that description.

(2) In sub-paragraph (1) “a general identifier” means any identifier (such as, for example, a number or code used for identification purposes) which—

  • relates to an individual, and
  • forms part of a set of similar identifiers which is of general application.

Sch. 1

The second principle

  1. The purpose or purposes for which personal data are obtained may inparticular be specified—
    • in a notice given for the purposes of paragraph 2 by the data controllerto the data subject, or
    • in a notification given to the Commissioner under Part III of this Act.
  2. In determining whether any disclosure of personal data is compatible withthe purpose or purposes for which the data were obtained, regard is to be had to the purpose or purposesfor which the personaldata are intended tobeprocessed by any person to whom they are disclosed.

The fourth principle

  1. The fourth principle is not to be regarded as being contravened by reasonofanyinaccuracyinpersonaldatawhichaccuratelyrecordinformationobtained by the data controller from the data subject or a third party in a case where—
    • having regard to the purpose or purposes for which the data wereobtained and further processed, the data controller has taken reasonable steps to ensure the accuracy of the data, and
    • if the data subject has notified the data controller of the data subject’sview that the data are inaccurate, the data indicate that fact.

The sixth principle

8.Apersonistoberegardedascontraveningthesixthprincipleif,butonlyif—

  • he contravenes section 7 by failing to supply information in accordancewith that section,
  • he contravenes section10 by failing to comply with a notice given undersubsection (1) of that section to the extent that the notice is justified or by failing to give a notice under subsection (3) of that section,
  • he contravenes section 11 by failing to comply with a notice given undersubsection (1) of that section, or
  • he contravenes section12 by failing to comply with a notice given undersubsection(1) or(2)(b) ofthatsection orbyfailing togive anotification under subsection (2)(a) of that section or a notice under subsection (3) of that section.

The seventh principle

  1. Having regard to the state of technological development and the cost of implementing any measures, the measures must ensure a level of security appropriate to—
  • the harm that might result from such unauthorised or unlawfulprocessing or accidental loss, destruction or damage as are mentioned in the seventh principle, and
  • the nature of the data to be protected.
  1. The data controller must take reasonable steps to ensure the reliability ofany employees of his who have access to the personal data.
  2. Where processing of personal data is carried out by a data processor onbehalf of a data controller, the data controller must in order to comply with the seventh principle—

(a) choose a data processor providing sufficient guarantees in respect of the technical and organisational security measures governing the processing to be carried out, and

 

. 1 (b) take reasonable steps to ensure compliance with those measures.

  1. Where processing of personal data is carried out by a data processor onbehalf of a data controller, the data controller is not to be regarded as complying with the seventh principle unless—
    • the processing is carried out under a contract—(i) which is made or evidenced in writing, and

(ii) under which the data processor is to act only on instructions from the data controller, and

  • the contract requires the data processor to comply with obligationsequivalent to those imposed on a data controller by the seventh principle.

The eighth principle

  1. An adequate level of protection is one which is adequate in all thecircumstances of the case, having regard in particular to—
    • the nature of the personal data,
    • the country or territory of origin of the information contained in thedata,
    • the country or territory of final destination of that information,
    • the purposes for which and period during which the data are intendedto be processed,
    • the law in force in the country or territory in question,
    • the international obligations of that country or territory,
    • any relevant codes of conduct or other rules which are enforceable inthat country or territory (whether generally or by arrangement in particular cases), and
    • any security measures taken in respect of the data in that country orterritory.
  2. The eighth principle does not apply to a transfer falling within anyparagraph of Schedule 4, except in such circumstances and to such extent as the Secretary of State may by order provide.

15.—(1) Where—

  • in any proceedings under this Act any question arises as to whether therequirementoftheeighthprincipleastoanadequatelevelofprotection is met in relation to the transfer of any personal data to a country or territory outside the European Economic Area, and
  • a Community finding has been made in relation to transfers of the kindin question,

that question is to be determined in accordance with that finding.

(2) In sub-paragraph (1) “Community finding” means a finding of the European Commission, under the procedure provided for in Article 31(2) of the Data Protection Directive, that a country or territory outside the European Economic Area does, or does not, ensure an adequate level of protection within the meaning of Article 25(2) of the Directive.

Sch. 2

Section 4(3).                                                                             SCHEDULE 2

Conditions relevant for purposes of the first principle: processing of any personal data

  1. The data subject has given his consent to the processing.
  2. The processing is necessary—
    • for the performance of a contract to whichthe data subject is a party, or
    • for the taking of steps at the request of the data subject with a view toentering into a contract.
  3. The processing is necessary for compliance with any legal obligation towhich the data controller is subject, other than an obligation imposed by contract.
  4. The processing is necessary in order to protect the vital interests of thedata subject.
  5. The processing is necessary—
    • for the administration of justice,
    • for the exercise of any functions conferred on any person by or underany enactment,
    • for the exercise of any functions of the Crown, a Minister of the Crownor a government department, or
    • for the exercise of any other functions of a publicnature exercised in thepublic interest by any person.

6.—(1) The processing is necessary for the purposes of legitimate interests pursued by the data controller or by the third party or parties to whom the data are disclosed, except where the processing is unwarranted in any particular case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject.

(2) The Secretary of State may by order specify particular circumstances in which this condition is, or is not, to be taken to be satisfied.

Section 4(3).                                                                             SCHEDULE 3

Conditions relevant for purposes of the first principle: processing of sensitive personal data

  1. The data subject has given his explicit consent to the processing of the personal data.

2.—(1) The processing is necessary for the purposes of exercising or performing any right or obligation which is conferred or imposed by law on the data controller in connection with employment.

(2) The Secretary of State may by order—

  • exclude the application of sub-paragraph (1) in such cases as may bespecified, or

ch2998s03a

. 3

  • provide that, in such cases as may be specified, the condition in subparagraph (1) is not to be regarded as satisfied unless such further conditions as may be specified in the order are also satisfied.
  1. The processing is necessary—
    • in order to protect the vital interests of the data subject or anotherperson, in a case where—
      • consent cannot be given by or on behalf of the data subject, or
      • the data controller cannot reasonably be expected to obtainthe consent of the data subject, or
    • in order to protect the vital interests of another person, in a case whereconsent by or on behalf of the data subject has been unreasonably withheld.
  2. The processing—
    • is carried out in the course of its legitimate activities by any body orassociation which—
      • is not established or conducted for profit, and
      • exists for political, philosophical, religious or trade-unionpurposes,
    • is carried out with appropriate safeguards for the rights and freedomsof data subjects,
    • relates only to individuals who either are members of the body orassociation or have regular contact with it in connection with its purposes, and
    • does not involve disclosure of the personal data to a third party withoutthe consent of the data subject.
  3. The information contained in the personal data has been made public as aresult of steps deliberately taken by the data subject.
  4. The processing—
    • is necessary for the purpose of, or in connection with, any legalproceedings (including prospective legal proceedings),
    • is necessary for the purpose of obtaining legal advice, or
    • is otherwise necessary for the purposes of establishing, exercising ordefending legal rights.

7.—(1) The processing is necessary— (a) for the administration of justice,

  • for the exercise of any functions conferred on any person by or underan enactment, or
  • for the exercise of any functions of the Crown, a Minister of the Crownor a government department.

(2) The Secretary of State may by order—

  • exclude the application of sub-paragraph (1) in such cases as may bespecified, or
  • provide that, in such cases as may be specified, the condition in subparagraph (1) is not to be regarded as satisfied unless such further conditions as may be specified in the order are also satisfied.

8.—(1) The processing is necessary for medical purposes and is undertaken

by—

 

ch2998s03a

54

Sch. 3

  • a health professional, or
  • a person who in the circumstances owes a duty of confidentiality whichis equivalent to that which would arise if that person were a health professional.
  • In this paragraph “medical purposes” includes the purposes of preventativemedicine, medicaldiagnosis, medicalresearch,the provision ofcare and treatment and the management of healthcare services.

9.—(1) The processing—

  • is of sensitive personal data consisting of information as to racial orethnic origin,
  • is necessary for the purpose of identifying or keeping under review theexistence or absence of equality of opportunity or treatment between personsofdifferentracialorethnicorigins,withaviewtoenablingsuch equality to be promoted or maintained, and
  • is carried out with appropriate safeguards for the rights and freedomsof data subjects.

(2) The Secretary of State may by order specify circumstances in which processing falling within sub-paragraph (1)(a) and (b) is, or is not, to be taken for the purposes of sub-paragraph (1)(c) to be carried out with appropriate safeguards for the rights and freedoms of data subjects.

  1. The personal data are processed in circumstances specified in an order made by the Secretary of State for the purposes of this paragraph.

Section 4(3).                                                                             SCHEDULE 4

Cases where the eighth principle does not apply

  1. The data subject has given his consent to the transfer.
  2. The transfer is necessary—
    • for the performance of a contract between the data subject and the datacontroller, or
    • for the taking of steps at the request of the data subject with a view tohis entering into a contract with the data controller.
  • The transfer is necessary—
    • for the conclusion of a contract between the data controller and aperson other than the data subject which—
      • is entered into at the request of the data subject, or
      • is in the interests of the data subject, or(b) for the performance of such a contract.

4.—(1) The transfer is necessary for reasons of substantial public interest.

(2) The Secretary of State may by order specify—

  • circumstances in which a transfer is to be taken for the purposes of subparagraph (1) to be necessary for reasons of substantial public interest, and
  • circumstances in which a transfer which is not required by or under anenactment is not to be taken for the purpose of sub-paragraph (1) to be necessary for reasons of substantial public interest.

ch2998s04a

. 4

5.             The transfer—

(a)    is necessary for the purpose of, or in connection with, any legal

proceedings (including prospective legal proceedings),

(b)    is necessary for the purpose of obtaining legal advice, or

(c)    is otherwise necessary for the purposes of establishing, exercising ordefending legal rights.

6.             The transfer is necessary in order to protect the vital interests of the datasubject.

7.             The transfer is of part of the personal data on a public register and anyconditions subject to which the register is open to inspection are complied with by any person to whom the data are or may be disclosed after the transfer.

8.             The transfer is made on terms which are of a kind approved by theCommissioner as ensuring adequate safeguards for the rights and freedoms of data subjects.

9.             The transfer has been authorised by the Commissioner as being made insuch a manner as to ensure adequate safeguards for the rights and freedoms of data subjects.

SCHEDULE 5

The Data Protection Commissioner and the Data Protection Tribunal

Part I

The Commissioner

Status and capacity

1.—(1) The corporation sole by the name of the Data Protection Registrar

Section 6(7).
established by the Data Protection Act 1984 shall continue in existence by the name of the Data Protection Commissioner. 1984 c. 35.

(2) The Commissioner and his officers and staff are not to be regarded as servants or agents of the Crown.

Tenure of office

2.—(1) Subject to the provisions of this paragraph, the Commissioner shall hold office for such term not exceeding five years as may be determined at the time of his appointment.

  • The Commissioner may be relieved of his office by Her Majesty at his own request.
  • The Commissioner may be removed from office by Her Majesty in pursuance of an Address from both Houses of Parliament.
  • The Commissioner shall in any case vacate his office—
    • oncompleting the yearof service in whichhe attains the age of sixty-fiveyears, or
    • if earlier, on completing his fifteenth year of service.
  • Subject to sub-paragraph (4), a person who ceases to be Commissioner on the expiration of his term of office shall be eligible for re-appointment, but a 56

Sch. 5

person may not be re-appointed for a third or subsequent term as Commissioner unless, by reason of special circumstances, the person’s re-appointment for such a term is desirable in the public interest.

Salary etc.

3.—(1) There shall be paid—

  • to the Commissioner such salary, and
  • to or in respect of the Commissioner such pension,as may be specified by a resolution of the House of Commons.

(2) A resolution for the purposes of this paragraph may—

  • specify the salary or pension,
  • provide that the salary or pension is to be the same as, or calculated onthe same basis as, that payable to, or to or in respect of, a person employed in a specified office under, or in a specified capacity in the service of, the Crown, or
  • specify the salary or pension and provide for it to be increased byreference to such variables as may be specified in the resolution.
  • A resolution for the purposes of this paragraph may take effect from the date on which it is passed or from any earlier or later date specified in the resolution.
  • A resolution for the purposes of this paragraph may make different provision in relation to the pension payable to or in respect of different holders of the office of Commissioner.
  • Any salary or pension payable under this paragraph shall be charged on and issued out of the Consolidated Fund.
  • In this paragraph “pension” includes an allowance or gratuity and any reference to the payment of a pension includes a reference to the making of payments towards the provision of a pension.

Officers and staff

4.—(1) The Commissioner—

  • shall appoint a deputy commissioner, and
  • may appoint such number of other officers and staff as he may determine.
  • The remuneration and other conditions of service of the persons appointed under this paragraph shall be determined by the Commissioner.
  • The Commissioner may pay such pensions, allowances or gratuities to or inrespectofthepersonsappointedunderthisparagraph,ormakesuchpayments towards the provision of such pensions, allowances or gratuities, as he may determine.
  • The references in sub-paragraph (3) to pensions, allowances or gratuities to or in respect of the persons appointed under this paragraph include references to pensions, allowances or gratuities by way of compensation to or in respect of any of those persons who suffer loss of office or employment.
  • Any determination under sub-paragraph (1)(b), (2) or (3) shall require the approval of the Secretary of State.

1969 c. 57. (6) The Employers’ Liability (Compulsory Insurance) Act 1969 shall not require insurance to be effected by the Commissioner.

 

. 5

5.—(1)Thedeputycommissionershallperformthefunctionsconferredbythis Act on the Commissioner during any vacancy in that office or at any time when the Commissioner is for any reason unable to act.

(2) Without       prejudice               to            sub-paragraph      (1),          any         functions               of            the CommissionerunderthisActmay,totheextentauthorisedbyhim,beperformed by any of his officers or staff.

Authentication of seal of the Commissioner

  1. The application of the seal of the Commissioner shall be authenticated byhissignatureorbythesignatureofsomeotherpersonauthorisedforthepurpose.

Presumption of authenticity of documents issued by the Commissioner

  1. Any document purporting to be an instrument issued by the Commissionerand to be duly executed under the Commissioner’s seal or to be signed by or on behalf of the Commissioner shall be received in evidence and shall be deemed to be such an instrument unless the contrary is shown.

Money

  1. The Secretary of State may make payments to the Commissioner out ofmoney provided by Parliament.

9.—(1) All fees and other sums received by the Commissioner in the exercise of his functions under this Act or section 159 of the Consumer Credit Act 1974 1974 c. 39. shall be paid by him to the Secretary of State.

  • Sub-paragraph (1) shall not apply where the Secretary of State, with the consent of the Treasury, otherwise directs.
  • Any sums received by the Secretary of State under sub-paragraph (1) shall be paid into the Consolidated Fund.

Accounts

10.—(1) It shall be the duty of the Commissioner—

  • to keep proper accounts and other records in relation to the accounts,
  • to prepare in respect of each financial year a statement of account insuch form as the Secretary of State may direct, and
  • tosendcopiesofthatstatementtotheComptrollerandAuditorGeneralon or before 31st August next following the end of the year to which the statement relates or on or before such earlier date after the end of that year as the Treasury may direct.
  • The Comptroller and Auditor General shall examine and certify any statement sent to him under this paragraph and lay copies of it together with his report thereon before each House of Parliament.
  • In this paragraph “financial year” means a period of twelve months beginning with 1st April.

Application of Part I in Scotland

  1. Paragraphs 1(1), 6 and 7 do not extend to Scotland.

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Part II

The Tribunal

Tenure of office

12.—(1)Subjecttothefollowingprovisionsofthisparagraph,amemberofthe Tribunal shall hold and vacate his office in accordance with the terms of his appointment and shall, on ceasing to hold office, be eligible for re-appointment.

(2) Any member of the Tribunal may at any time resign his office by notice in writing to the Lord Chancellor (in the case of the chairman or a deputy chairman) or to the Secretary of State (in the case of any other member).

(3) A person who is the chairman or deputy chairman of the Tribunal shall vacate his office on the day on which he attains the age of seventy years; but this
1993 c. 8. sub-paragraph is subject to section 26(4) to (6) of the Judicial Pensions and Retirement Act 1993 (power to authorise continuance in office up to the age of seventy-five years).

Salary etc.

13. The Secretary of State shall pay to the members of the Tribunal out of money provided by Parliament such remuneration and allowances as he may determine.

Officers and staff

14.TheSecretaryofStatemayprovidetheTribunalwithsuchofficersandstaff as he thinks necessary for the proper discharge of its functions.

Expenses

15.SuchexpensesoftheTribunalastheSecretaryofStatemaydetermineshall be defrayed by the Secretary of State out of money provided by Parliament.

Part III

Transitional provisions

16.Anyreferencein anyenactment,instrumentorotherdocumenttotheData Protection Registrar shall be construed, in relation to any time after the commencement of section 6(1), as a reference to the Commissioner.

17. Any reference in this Act or in any instrument under this Act to the Commissioner shall be construed, in relation to any time before the commencement of section 6(1), as a reference to the Data Protection Registrar.

Sections 28(12), 48(5). SCHEDULE 6

Appeal proceedings

Hearing of appeals

  1. For the purpose of hearing and determining appeals or any matter preliminary or incidental to an appeal the Tribunal shall sit at such times and in such places as the chairman or a deputy chairman may direct and may sit in two or more divisions.

ch2998s06a

. 6 Constitution of Tribunal in national security cases

2.—(1) The Lord Chancellor shall from time to time designate, from among the chairman and deputy chairmen appointed by him under section 6(4)(a) and (b), those persons who are to be capable of hearing appeals under section 28(4) or (6).

(2) A designation under sub-paragraph (1) may at any time be revoked by the Lord Chancellor.

  1. In any case where the application of paragraph 6(1) is excluded by rules under paragraph 7, the Tribunal shall be duly constituted for an appeal under section 28(4) or (6) if it consists of three of the persons designated under paragraph 2(1), of whom one shall be designated by the Lord Chancellor to preside.

Constitution of Tribunal in other cases

4.—(1) Subject to any rules made under paragraph 7, the Tribunal shall be duly constituted for an appeal under section 48(1), (2) or (4) if it consists of—

  • the chairman or a deputy chairman (who shall preside), and
  • an equal number of the members appointed respectively in accordancewith paragraphs (a) and (b) of section 6(6).

(2) The members who are to constitute the Tribunal in accordance with subparagraph (1) shall be nominated by the chairman or, if he is for any reason unable to act, by a deputy chairman.

Determination of questions by full Tribunal

  1. The determination of any question before the Tribunal when constituted in accordance with paragraph 3 or 4 shall be according to the opinion of the majority of the members hearing the appeal.

Ex parte proceedings

6.—(1) Subject to any rules made under paragraph 7, the jurisdiction of the Tribunal in respect of an appeal under section 28(4) or (6) shall be exercised ex parte by one or more persons designated under paragraph 2(1).

(2) Subject to any rules made under paragraph 7, the jurisdiction of the Tribunal in respect of an appeal under section 48(3) shall be exercised ex parte by the chairman or a deputy chairman sitting alone.

Rules of procedure

7.—(1) TheSecretary ofStatemay make rulesforregulating theexerciseof the rights of appeal conferred by sections 28(4) or (6) and 48 and the practice and procedure of the Tribunal.

  • Rules under this paragraph may in particular make provision—
    • with respect to the period within which an appeal can be brought andthe burden of proof on an appeal,
    • for the summoning (or, in Scotland, citation) of witnesses and theadministration of oaths,
    • for securing the production of documents and material used for theprocessing of personal data,
    • fortheinspection,examination,operationandtestingofanyequipmentor material used in connection with the processing of personal data,
    • for the hearing of an appeal wholly or partly in camera,

 

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  • for hearing an appeal in the absence of the appellant or for determiningan appeal without a hearing,
  • forenablinganappealundersection48(1)againstaninformationnoticeto be determined by the chairman or a deputy chairman,
  • for enabling any matter preliminary or incidental to an appeal to bedealt with by the chairman or a deputy chairman, (i) for the awarding of costs or, in Scotland, expenses,
    • for the publication of reports of the Tribunal’s decisions, and
    • for conferring on the Tribunal such ancillary powers as the Secretary ofState thinks necessary for the proper discharge of its functions.
  • Inmakingrulesunderthisparagraphwhichrelatetoappealsundersection 28(4) or (6) the Secretary of State shall have regard, in particular, to the need to secure that information is not disclosed contrary to the public interest.

Obstruction etc.

8.—(1) If any person is guilty of any act or omission in relation to proceedings before the Tribunal which, if those proceedings were proceedings before a court having power to commit for contempt, would constitute contempt of court, the Tribunal may certify the offence to the High Court or, in Scotland, the Court of Session.

(2) Where an offence is so certified, the court may inquire into the matter and, after hearing any witness who may be produced against or on behalf of the person charged with the offence, and after hearing any statement that may be offered in defence, deal with him in any manner in which it could deal with him if he had committed the like offence in relation to the court.

Section 37.                                                                                SCHEDULE 7

Miscellaneous exemptions

Confidential references given by the data controller

  1. Personal data are exempt from section 7 if they consist of a reference given or to be given in confidence by the data controller for the purposes of—
    • the education, training or employment, or prospective education,training or employment, of the data subject,
    • theappointment,orprospectiveappointment, ofthedatasubjecttoanyoffice, or
    • the provision, or prospective provision, by the data subject of anyservice.

Armed forces

  1. Personal data are exempt from the subject information provisions in anycase to the extent to which the application of those provisions would be likely to prejudice the combat effectiveness of any of the armed forces of the Crown.

Judicial appointments and honours

  1. Personal data processed for the purposes of—
    • assessing any person’s suitability for judicial office or the office of Queen’s Counsel, or
    • the conferring by the Crown of any honour,are exempt from the subject information provisions.

. 7 Crown employment and Crown or Ministerial appointments

  1. The Secretary of State may by order exempt from the subject informationprovisions personal data processed for the purposes of assessing any person’s suitability for—
    • employment by or under the Crown, or
    • any office to which appointments are made by Her Majesty, by a Minister of the Crown or by a Northern Ireland department.

Management forecasts etc.

  1. Personal data processed for the purposes of management forecasting ormanagement planningto assist the data controller in the conduct of anybusiness or other activity are exempt from the subject information provisions in any case to the extent to which the application of those provisions would be likely to prejudice the conduct of that business or other activity.

Corporate finance

6.—(1) Where personal data are processed for the purposes of, or in connection with, a corporate finance service provided by a relevant person—

  • the data are exempt from the subject information provisions in any caseto the extent to which either—
    • the application of those provisions to the data could affect the price of any instrument which is already in existence or is to be or may be created, or
    • the data controller reasonably believes that the application ofthose provisions to the data could affect the price of any such instrument, and
  • to the extent that the data are not exempt from the subject informationprovisions by virtue of paragraph (a), they are exempt from those provisions if the exemption is required for the purpose of safeguarding an important economic or financial interest of the United Kingdom.
  • For the purposes of sub-paragraph (1)(b) the Secretary of State may by order specify—
    • matters to be taken into account in determining whether exemptionfrom the subject information provisions is required for the purpose of safeguarding an important economic or financial interest of the United Kingdom, or
    • circumstances in which exemption from those provisions is, or is not, tobe taken to be required for that purpose.
  • In this paragraph—

“corporate finance service” means a service consisting in—

  • underwriting in respect of issues of, or the placing of issues of,any instrument,
  • advicetoundertakingsoncapitalstructure,industrialstrategyand related matters and advice and service relating to mergers and the purchase of undertakings, or
  • services relating to such underwriting as is mentioned inparagraph (a);

“instrument” means any instrument listed in section B of the Annex to the Council Directive on investment services in the securities field

(93/22/EEC), as set out in Schedule 1 to the Investment Services S.I. 1995/3275. Regulations 1995;

“price” includes value;

“relevant person” means—

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(a) anypersonwhoisauthorisedunderChapterIIIofPartIofthe

1986 c. 60. Financial Services Act 1986 or is an exempted person under Chapter IV of Part I of that Act,

  • any person who, but for Part III or IV of Schedule 1 to thatAct, would require authorisation under that Act,
  • any European investment firm within the meaning given byI. 1995/3275. Regulation 3 of the Investment Services Regulations 1995,
  • any person who, in the course of his employment, provides tohis employer a service falling within paragraph (b) or (c) of the definition of “corporate finance service”, or
  • any partner who provides to other partners in the partnershipa service falling within either of those paragraphs.

Negotiations

  1. Personal data which consist of records of the intentions of the data controller in relation to any negotiations with the data subject are exempt from the subject information provisions in any case to the extent to which the application of those provisions would be likely to prejudice those negotiations.

Examination marks

8.—(1) Section 7 shall have effect subject to the provisions of sub-paragraphs (2) to (4) in the case of personal data consisting of marks or other information processed by a data controller—

  • for the purpose of determining the results of an academic, professionalorotherexaminationorofenablingtheresultsofanysuchexamination to be determined, or
  • in consequence of the determination of any such results.
  • Where the relevant day falls before the day on which the results of the examination are announced, the period mentioned in section 7(8) shall be extended until—
    • the end of five months beginning with the relevant day, or
    • the end of forty days beginning with the date of the announcement,whichever is the earlier.
  • Where by virtue of sub-paragraph (2) a period longer than the prescribed period elapses after the relevant day before the request is complied with, the information to be supplied pursuant to the request shall be supplied both by reference to the data in question at the time when the request is received and (if different) by reference to the data as from time to time held in the period beginning when the request is received and ending when it is complied with.
  • For the purposes of this paragraph the results of an examination shall be treated as announced when they are first published or (if not published) when they are first made available or communicated to the candidate in question.
  • In this paragraph—

“examination” includes any process for determining the knowledge, intelligence, skill or ability of a candidate by reference to his performance in any test, work or other activity;

“the prescribed period” means forty days or such other period as is for the time being prescribed under section 7 in relation to the personal data in question;

“relevant day” has the same meaning as in section 7.

 

. 7 Examination scripts etc.

9.—(1) Personal data consistingof informationrecordedby candidatesduring an academic, professional or other examination are exempt from section 7.

(2) In this paragraph “examination” has the same meaning as in paragraph 8.

Legal professional privilege

  1. Personal data are exempt from the subject information provisions if the data consist of information in respect of which a claim to legal professional privilege or, in Scotland, to confidentiality as between client and professional legal adviser, could be maintained in legal proceedings.

Self-incrimination

11.—(1) A person need not comply with any request or order under section 7

to the extent that compliance would, by revealing evidence of the commission of any offence other than an offence under this Act, expose him to proceedings for that offence.

(2) Information disclosed by any person in compliance with any request or order under section 7 shall not be admissible against him in proceedings for an offence under this Act.

SCHEDULE 8                                                                     Section 39.

Transitional relief

Part I

Interpretation of Schedule

1.—(1) For the purposes of this Schedule, personal data are “eligible data” at any time if, and to the extent that, they are at that time subject to processing which was already under way immediately before 24th October 1998.

(2) In this Schedule—

“eligible automated data” means eligible data which fall within paragraph (a) or (b) of the definition of “data” in section 1(1);

“eligible manual data” means eligible data which are not eligible automated data;

“the first transitional period” means the period beginning with the commencement of this Schedule and ending with 23rd October 2001;

“the second transitional period” means the period beginning with 24th October 2001 and ending with 23rd October 2007.

Part II

Exemptions available before 24th October 2001

Manual data

2.—(1) Eligible manual data, other than data forming part of an accessible record, areexempt fromthe dataprotection principlesand PartsIIandIII ofthis Act during the first transitional period.

(2) This paragraphdoesnotapply toeligible manualdatatowhichparagraph 4 applies.

3.—(1) This paragraph applies to—

  • eligible manual data forming part of an accessible record, and

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  • personaldatawhichfallwithinparagraph(d)ofthe definitionof“data”in section 1(1) but which, because they are not subject to processing which was already under way immediately before 24th October 1998, are not eligible data for the purposes of this Schedule.

(2) During the first transitional period, data to which this paragraph applies are exempt from—

  • the data protection principles, except the sixth principle so far asrelating to sections 7 and 12A,
  • Part II of this Act, except—
    • section 7 (as it has effect subject to section 8) and section

12A, and

  • section 15 so far as relating to those sections, and(c) Part III of this Act.

4.—(1) This paragraph applies to eligible manual data which consist of information relevant to the financial standing of the data subject and in respect of which the data controller is a credit reference agency.

(2) During the first transitional period, data to which this paragraph applies are exempt from—

  • the data protection principles, except the sixth principle so far asrelating to sections 7 and 12A,
  • Part II of this Act, except—
    • section 7(as ithas effectsubject tosections 8and 9)and section

12A, and

  • section 15 so far as relating to those sections, and(c) Part III of this Act.

Processing otherwise than by reference to the data subject

  1. During the first transitional period, for the purposes of this Act (apart from paragraph 1), eligible automated data are not to be regarded as being “processed” unless the processing is by reference to the data subject.

Payrolls and accounts

6.—(1) Subject to sub-paragraph (2), eligible automated data processed by a data controller for one or more of the following purposes—

  • calculating amounts payable by way of remuneration or pensions inrespect of service in any employment or office or making payments of, or of sums deducted from, such remuneration or pensions, or
  • keepingaccounts relating to any business or other activitycarried on bythe data controller or keeping records of purchases, sales or other transactionsforthe purposeofensuringthatthe requisitepaymentsare made by or to him in respect of those transactions or for the purpose of making financial or management forecasts to assist him in the conduct of any such business or activity,

are exempt from the data protection principles and Parts II and III of this Act during the first transitional period.

  • It shall be a condition of the exemption of any eligible automated data under this paragraph that the data are not processed for any other purpose, but the exemption is not lost by any processing of the eligible data for any other purpose if the data controller shows that he had taken such care to prevent it as in all the circumstances was reasonably required.
  • Data processed only for one or more of the purposes mentioned in subparagraph (1)(a) may be disclosed—

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  • to any person, other than the data controller, by whom theremuneration or pensions in question are payable,
  • for the purpose of obtaining actuarial advice,
  • for the purpose of giving information as to the persons in anyemployment or office for use in medical research into the health of, or injuries suffered by, persons engaged in particular occupations or working in particular places or areas,
  • if the data subject (or a person acting on his behalf) has requested orconsented to the disclosure of the data either generally or in the circumstances in which the disclosure in question is made, or
  • ifthe personmaking thedisclosure has reasonable groundsforbelievingthat the disclosure falls within paragraph (d).
  • Data processed for any of the purposes mentioned in sub-paragraph (1) may be disclosed—
    • for the purpose of audit or where the disclosure is for the purpose onlyof giving information about the data controller’s financial affairs, or
    • in any case in which disclosure would be permitted by any otherprovision of this Part of this Act if sub-paragraph (2) were included among the non-disclosure provisions.
  • In this paragraph “remuneration” includes remuneration in kind and “pensions” includes gratuities or similar benefits.

Unincorporated members’ clubs and mailing lists

7.Eligibleautomateddataprocessedbyanunincorporatedmembers’cluband relating only to the members of the club are exempt from the data protection principles and Parts II and III of this Act during the first transitional period.

8.Eligibleautomateddataprocessedbyadatacontrolleronlyforthepurposes of distributing, or recording the distribution of, articles or information to the data subjects and consisting only of their names, addresses or other particulars necessary for effecting the distribution, are exempt from the data protection principles and Parts II and III of this Act during the first transitional period.

  1. Neither paragraph 7 nor paragraph 8 applies to personal data relating toany data subject unless he has been asked by the club or data controller whether he objects to the data relating to him being processed as mentioned in that paragraph and has not objected.
  2. It shall be a condition of the exemption ofany data under paragraph 7 thatthe data are not disclosed except as permitted by paragraph 11 and of the exemption under paragraph 8 that the data are not processed for any purpose other than that mentioned in that paragraph or as permitted by paragraph 11, but—
    • the exemption under paragraph 7 shall not be lost by any disclosure inbreach of that condition, and
    • the exemption under paragraph 8 shall not be lost by any processing inbreach of that condition,

if the data controller shows that he had taken such care to prevent it as in all the circumstances was reasonably required.

  1. Data to which paragraph 10 applies may be disclosed—
    • if the data subject (or a person acting on his behalf) has requested orconsented to the disclosure of the data either generally or in the circumstances in which the disclosure in question is made,

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  • ifthepersonmakingthedisclosurehasreasonablegroundsforbelievingthat the disclosure falls within paragraph (a), or
  • in any case in which disclosure would be permitted by any otherprovision of this Part of this Act if paragraph 10 were included among the non-disclosure provisions.

Back-up data

  1. Eligible automated data which are processed only for the purpose ofreplacing other data in the event of the latter being lost, destroyed or impaired are exempt from section 7 during the first transitional period.

Exemption of all eligible automated data from certain requirements

13.—(1) During the first transitional period, eligible automated data are exempt from the following provisions—

(a) the first data protection principle to the extent to which it requires compliance with—

  • paragraph 2 of Part II of Schedule 1,
  • the conditions in Schedule 2, and
  • the conditions in Schedule 3,
  • the seventh data protection principle to the extent to which it requirescompliance with paragraph 12 of Part II of Schedule 1;
  • the eighth data protection principle,
  • in section 7(1), paragraphs (b), (c)(ii) and (d),
  • sections 10 and 11,
  • section 12, and
  • section 13, except so far as relating to—

(i) any contravention of the fourth data protection principle, (ii) any disclosure without the consent of the data controller,

  • loss or destruction of data without the consent of the datacontroller, or
  • processing for the special purposes.

(2) The specific exemptions conferred by sub-paragraph (1)(a), (c) and (e) do not limit the data controller’s general duty under the first data protection principle to ensure that processing is fair.

Part III

Exemptions available after 23rd October 2001 but before 24th October

2007

14.—(1) This paragraph applies to—

  • eligible manual data which were held immediately before 24th October1998, and
  • personaldatawhichfallwithinparagraph(d)ofthe definitionof“data”in section 1(1) but do not fall within paragraph (a) of this subparagraph,

but does not apply to eligible manual data to which the exemption in paragraph 16 applies.

(2) During the second transitional period, data to which this paragraph applies are exempt from the following provisions—

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(a) the first data protection principle except to the extent to which it requires compliance with paragraph 2 of Part II of Schedule 1, (b) the second, third, fourth and fifth data protection principles, and (c) section 14(1) to (3).

Part IV

Exemptions after 23rd October 2001 for historical research

  1. In this Part of this Schedule “the relevant conditions” has the same meaning as in section 33.

16.—(1) Eligible manual data which are processed only for the purpose of historical research in compliance with the relevant conditions are exempt from the provisions specified in sub-paragraph (2) after 23rd October 2001.

(2) The provisions referred to in sub-paragraph (1) are—

(a) the first data protection principle except in so far as it requires compliance with paragraph 2 of Part II of Schedule 1, (b) the second, third, fourth and fifth data protection principles, and (c) section 14(1) to (3).

17.—(1) After 23rd October 2001 eligible automated data which are processed only for the purpose of historical research in compliance with the relevant conditions are exempt from the first data protection principle to the extent to which it requires compliance with the conditions in Schedules 2 and 3.

  • Eligible automated data which are processed— (a) only for the purpose of historical research,
    • in compliance with the relevant conditions, and
    • otherwise than by reference to the data subject,are also exempt from the provisions referred to in sub-paragraph (3) after 23rd October 2001.
  • The provisions referred to in sub-paragraph (2) are—

(a) the first data protection principle except in so far as it requires compliance with paragraph 2 of Part II of Schedule 1, (b) the second, third, fourth and fifth data protection principles, and (c) section 14(1) to (3).

  1. For the purposes of this Part of this Schedule personal data are not to betreated as processed otherwise than for the purpose of historical research merely because the data are disclosed—
    • to any person, for the purpose of historical research only,
    • to the data subject or a person acting on his behalf,
    • at the request, or with the consent, of the data subject or a person actingon his behalf, or
    • in circumstances in which the person making the disclosure hasreasonable grounds for believing that the disclosure falls within paragraph (a), (b) or (c).

Part V

Exemption from section 22

  1. Processing which was already under way immediately before 24th October

1998 is not assessable processing for the purposes of section 22.

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Section 50.                                                                                SCHEDULE 9

Powers of entry and inspection

Issue of warrants

1.—(1) If a circuit judge is satisfied by information on oath supplied by the Commissioner that there are reasonable grounds for suspecting—

  • thatadatacontrollerhascontravenedoriscontraveninganyofthedataprotection principles, or
  • that an offence under this Act has been or is being committed, and that evidence of the contravention or of the commission of the offence is to be found on any premises specified in the information, he may, subject to subparagraph (2) and paragraph 2, grant a warrant to the Commissioner.
  • A judge shall not issue a warrant under this Schedule in respect of any personal data processed for the special purposes unless a determination by the Commissioner under section 45 with respect to those data has taken effect.
  • A warrant issued under sub-paragraph (1) shall authorise the Commissioner or any of his officers or staff at any time within seven days of the date of the warrant to enter the premises, to search them, to inspect, examine, operate and test any equipment found there which is used or intended to be used for the processing of personal data and to inspect and seize any documents or other material found there which may be such evidence as is mentioned in that sub-paragraph.

2.—(1) A judge shall not issue a warrant under this Schedule unless he is satisfied—

  • that the Commissioner has given seven days’ notice in writing to theoccupier of the premises in question demanding access to the premises, and
  • that either—
    • access was demanded at a reasonable hour and wasunreasonably refused, or
    • although entry to the premises was granted, the occupierunreasonably refusedto comply with a request by the Commissioner or any of the Commissioner’s officers or staff to permit the Commissioner or the officer or member of staff to do any of the things referred to in paragraph 1(3), and

(c) that the occupier, has, after the refusal, been notified by the Commissioner of the application for the warrant and has had an opportunity ofbeing heard by the judge onthe questionwhether or not it should be issued.

(2) Sub-paragraph (1) shall not apply if the judge is satisfied that the case is one of urgency or that compliance with those provisions would defeat the object of the entry.

  1. A judge who issues a warrant under this Schedule shall also issue two copiesof it and certify them clearly as copies.

Execution of warrants

  1. A person executing a warrant issued under this Schedule may use suchreasonable force as may be necessary.

 

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  1. A warrant issued under this Schedule shall be executed at a reasonable hourunless it appears to the person executing it that there are grounds for suspecting that the evidence in question would not be found if it were so executed.
  2. If the person who occupies the premises in respect of which a warrant isissued under this Schedule is present when the warrant is executed, he shall be shownthewarrantandsuppliedwithacopyofit;andifthatpersonisnotpresent a copy of the warrant shall be left in a prominent place on the premises.

7.—(1) A person seizing anything in pursuance of a warrant under this Schedule shall give a receipt for it if asked to do so.

(2) Anything so seized may be retained for so long as is necessary in all the circumstances but the person in occupation of the premises in question shall be given a copy of anything that is seized if he so requests and the person executing the warrant considers that it can be done without undue delay.

Matters exempt from inspection and seizure

  1. The powers of inspection and seizure conferred by a warrant issued under this Schedule shall not be exercisable in respect of personal data which by virtue of section 28 are exempt from any of the provisions of this Act.

9.—(1) Subject to the provisions of this paragraph, the powers of inspection and seizure conferred by a warrant issued under this Schedule shall not be exercisable in respect of—

  • any communication between a professional legal adviser and his clientin connection with the giving of legal advice to the client with respect to his obligations, liabilities or rights under this Act, or
  • any communication between a professional legal adviser and his client,or between such an adviser or his client and any other person, made in connection with or in contemplation of proceedings under or arising out of this Act (including proceedings before the Tribunal) and for the purposes of such proceedings.
  • Sub-paragraph (1) applies also to—
    • any copy or other record of any such communication as is therementioned, and
    • any document or article enclosed with or referred to in any suchcommunication if made in connection with the giving of any advice or, as the case may be, in connection with or in contemplation of and for the purposes of such proceedings as are there mentioned.
  • This paragraph does not apply toanything in thepossession ofany person other than the professional legal adviser or his client or to anything held with the intention of furthering a criminal purpose.
  • In this paragraph references to the client of a professional legal adviser include references to any person representing such a client.
  • If the person in occupation of any premises in respect of which a warrantis issued under this Schedule objects to the inspection or seizure under the warrant of any material on the grounds that it consists partly of matters in respectofwhichthosepowersarenotexercisable,heshall,ifthepersonexecuting the warrant so requests, furnish that person with a copy of so much of the material as is not exempt from those powers.

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Return of warrants

  • A warrant issued under this Schedule shall be returned to the court fromwhich it was issued—
    • after being executed, or
    • if not executed within the time authorised for its execution;

and the person by whom any such warrant is executed shall make an endorsement on it stating what powers have been exercised by him under the warrant.

Offences

  • Any person who—
    • intentionally obstructs a person in the execution of a warrant issuedunder this Schedule, or
    • fails without reasonable excuse to give any person executing such awarrant such assistance as he may reasonably require for the execution of the warrant, is guilty of an offence.

Vessels, vehicles etc.

  • In this Schedule “premises” includes any vessel, vehicle, aircraft orhovercraft, and references to the occupier of any premises include references to the person in charge of any vessel, vehicle, aircraft or hovercraft.

Scotland and Northern Ireland

  • In the application of this Schedule to Scotland—
    • for any reference to a circuit judge there is substituted a reference tothe sheriff,
    • for any reference to information on oath there is substituted a referenceto evidence on oath, and
    • for the reference to the court from which the warrant was issued thereis substituted a reference to the sheriff clerk.
  • In the application of this Schedule to Northern Ireland—
    • for any reference to a circuit judge there is substituted a reference to acounty court judge, and
    • for any reference to information on oath there is substituted a referenceto a complaint on oath.

Section 53(6).                                                                          SCHEDULE 10

Further provisions relating to assistance under section 53

  1. In this Schedule “applicant” and “proceedings” have the same meaning asin section 53.
  2. The assistance provided under section 53 may include the making ofarrangements for, or for the Commissioner to bear the costs of— (a) the giving of advice or assistance by a solicitor or counsel, and

(b) the representation of the applicant, or the provision to him of such assistance as is usually given by a solicitor or counsel—

ch2998s10a

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  • in steps preliminary or incidental to the proceedings, or
  • in arriving at or giving effect to a compromise to avoid or bring an end to the proceedings.
  1. Where assistance is provided with respect to the conduct of proceedings—
  • it shall include an agreement by the Commissioner to indemnify theapplicant (subject only to any exceptions specified in the notification) in respect of any liability to pay costs or expenses arising by virtue of any judgment or order of the court in the proceedings,
  • it may include an agreement by the Commissioner to indemnify theapplicant in respect of any liability to pay costs or expenses arising by virtue of any compromise or settlement arrived at in order to avoid the proceedings or bring the proceedings to an end, and
  • it may include an agreement by the Commissioner to indemnify theapplicant in respect of any liability to pay damages pursuant to an undertaking given on the grant of interlocutory relief (in Scotland, an interim order) to the applicant.

4.WheretheCommissionerprovidesassistanceinrelationtoanyproceedings, heshalldosoonsuchterms,ormakesuchotherarrangements,aswillsecurethat a person against whomthe proceedings have been or are commenced isinformed that assistance has been or is being provided by the Commissioner in relation to them.

  1. In England and Wales or Northern Ireland, the recovery of expensesincurredbytheCommissionerinprovidinganapplicantwithassistance(astaxed orassessedinsuchmannerasmaybeprescribedbyrulesofcourt)shallconstitute a first charge for the benefit of the Commissioner—
    • on any costs which, by virtue of any judgment or order of the court, arepayable to the applicant by any other person in respect of the matter in connection with which the assistance is provided, and
    • on any sum payable to the applicant under a compromise or settlementarrived at in connection with that matter to avoid or bring to an end any proceedings.
  2. In Scotland, the recovery of such expenses (as taxed or assessed in suchmanner as may be prescribed by rules of court) shall be paid to the Commissioner, in priority to other debts—
    • out of any expenses which, by virtue of any judgment or order of thecourt,are payable to the applicant by any other personin respectof the matter in connection with which the assistance is provided, and
    • out of any sum payable to the applicant under a compromise orsettlement arrived at in connection with that matter to avoid or bring to an end any proceedings.

SCHEDULE 11                                                                Section 68(1)(b).

Educational records

Meaning of “educational record”

  1. For the purposes of section 68 “educational record” means any record towhich paragraph 2, 5 or 7 applies.

 

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England and Wales

  1. This paragraph applies to any record of information which—
    • is processed by or on behalf of the governing body of, or a teacher at,any school in England and Wales specified in paragraph 3,
    • relates to any person who is or has been a pupil at the school, and
    • originated from or was supplied by or on behalf of any of the personsspecified in paragraph 4,

other than information which is processed by a teacher solely for the teacher’s own use.

  1. The schools referred to in paragraph 2(a) are—
    • a school maintained by a local education authority, and

1996 c. 56. (b) a special school, as defined by section 6(2) of the Education Act 1996, which is not so maintained.

  1. The persons referred to in paragraph 2(c) are—
    • an employee of the local education authority which maintains theschool,
    • in the case of—
      • a voluntary aided, foundation or foundation special school(within the meaning of the School Standards and Framework Act 1998), or
      • a special school which is not maintained by a local eductionauthority,

a teacher or other employee at the school (including an educational psychologist engaged by the governing body under a contract for services),

  • the pupil to whom the record relates, and
  • a parent, as defined by section 576(1) of the Education Act 1996, ofthat pupil.

Scotland

  1. This paragraph applies to any record of information which is processed—
    • by an education authority in Scotland, and
    • for the purpose of the relevant function of the authority,other than information which is processed by a teacher solely for the teacher’s own use.
  2. For the purposes of paragraph 5—
    • “education authority” means an education authority within the

1980 c. 44. meaning of the Education (Scotland) Act 1980 (“the 1980 Act”) or, in relation to a self-governing school, the board of management within

1989 c. 39.                                             the meaning of the Self-Governing Schools etc. (Scotland) Act 1989

(“the 1989 Act”),

  • “the relevant function” means, in relation to each of those authorities,their function under section 1 of the 1980 Act and section 7(1) of the 1989 Act, and
  • information processed by an education authority is processed for thepurpose of the relevant function of the authority if the processing relates to the discharge of that function in respect of a person—

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  • who is or has been a pupil in a school provided by theauthority, or
  • who receives, or has received, further education (within themeaning of the 1980 Act) so provided.

Northern Ireland

7.—(1) This paragraph applies to any record of information which—

  • is processed by or on behalf of the Board of Governors of, or a teacherat, any grant-aided school in Northern Ireland,
  • relates to any person who is or has been a pupil at the school, and
  • originated from or was supplied by or on behalf of any of the personsspecified in paragraph 8,

other than information which is processed by a teacher solely for the teacher’s own use.

(2) In sub-paragraph (1) “grant-aided school” has the same meaning as in the Education and Libraries (Northern Ireland) Order 1986. S.I. 1986/594

(N.I.3).

  1. The persons referred to in paragraph 7(1) are—
  • a teacher at the school,
  • an employee of an education and library board, other than such ateacher,
  • the pupil to whom the record relates, and
  • a parent (as defined by Article 2(2) of the Education and Libraries(Northern Ireland) Order 1986) of that pupil.

England and Wales: transitory provisions

9.—(1) Until the appointed day within the meaning of section 20 of the School StandardsandFrameworkAct1998,thisScheduleshallhaveeffectsubjecttothe following modifications.

  • Paragraph 3 shall have effect as if for paragraph (b) and the “and” immediately preceding it there were substituted—

“(aa) a grant-maintained school, as defined by section 183(1) of the Education Act 1996,

(ab) a grant-maintained special school, as defined by section 337(4) of that Act, and

(b) a special school, as defined by section 6(2) of that Act, which is neither a maintained special school, as defined by section 337(3) of that Act, nor a grant-maintained special school.”

  • Paragraph 4(b)(i) shall have effect as if for the words from “foundation”, in the first place where it occurs, to “1998)” there were substituted “or grantmaintained school”.

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Sch. 12

Section 68(1)(c).                                                                      SCHEDULE 12

Accessible public records

Meaning of “accessible public record”

  1. For the purposes of section 68 “accessible public record” means any record which is kept by an authority specified—
    • as respects England and Wales, in the Table in paragraph 2,
    • as respects Scotland, in the Table in paragraph 4, or
    • as respects Northern Ireland, in the Table in paragraph 6,and is a record of information of a description specified in that Table in relation to that authority.

Housing and social services records: England and Wales

  1. The following is the Table referred to in paragraph 1(a).

TABLE OF AUTHORITIES AND INFORMATION

The authorities The accessible information
Housing Act local authority. Information held for the purpose of any of the authority’s tenancies.
Local social services authority. Information held for any purpose of the authority’s social services functions.

3.—(1) The following provisions apply for the interpretation of the Table in paragraph 2.

1985 c. 68.               (2) Any authority which, by virtue of section 4(e) of the Housing Act 1985, is a local authority for the purpose of any provision of that Act is a “Housing Act local authority” for the purposes of this Schedule, and so is any housing action 1988 c. 50.           trust established under Part III of the Housing Act 1988.

(3) Information contained in records kept by a Housing Act local authority is “held for the purpose of any of the authority’s tenancies” if it is held for any purpose of the relationship of landlord and tenant of a dwelling which subsists, hassubsistedormaysubsistbetweentheauthorityandanyindividualwhois,has been or, as the case may be, has applied to be, a tenant of the authority.

1970 c. 42.                  (4) Any authority which, by virtue of section 1 or 12 of the Local Authority Social Services Act 1970, is or is treated as a local authority for the purposes of that Act is a “local social services authority” for the purposes of this Schedule; and information contained in records kept by such an authority is “held for any purpose of the authority’s social services functions” if it is held for the purpose of any past, current or proposed exercise of such a function in any case.

(5) Any expression used in paragraph 2 or this paragraph and in Part II of the Housing Act 1985 or the Local Authority Social Services Act 1970 has the same meaning as in that Act.

Housing and social services records: Scotland

  1. The following is the Table referred to in paragraph 1(b).

 

ch2998s12a

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TABLE OF AUTHORITIES AND INFORMATION

The authorities The accessible information
Local authority. Information held for the purpose of
Scottish Homes. any of the body’s tenancies.
Social work authority. Information held for any purpose of the authority’s functions under the Social Work (Scotland) Act 1968 and the enactments referred to in section 5(1B) of that Act.

5.—(1) The following provisions apply for the interpretation of the Table in paragraph 4.

  • “Local authority” means—
    • a council constituted under section 2 of the Local Government etc. 1994 c. 39. (Scotland) Act 1994,
    • a joint board or joint committee of two or more of those councils, or(c) any trust under the control of such a council.
  • Information contained in records kept by a local authority or Scottish Homesisheldforthepurposeofanyoftheirtenanciesifitisheldforanypurpose of therelationship oflandlordand tenantofadwelling-house whichsubsists, has subsisted or may subsist between the authority or, as the case may be, Scottish Homes and any individual who is, has been or, as the case may be, has applied to be a tenant of theirs.
  • “Social work authority” means a local authority for the purposes of the Social Work (Scotland) Act 1968; and information contained in records kept by 1968 c. 49. such an authority is held for any purpose of their functions if it is held for the purpose of any past, current or proposed exercise of such a function in any case.

Housing and social services records: Northern Ireland

  1. The following is the Table referred to in paragraph 1(c).

TABLE OF AUTHORITIES AND INFORMATION

The authorities The accessible information
The      Northern      Ireland      Housing Information held for the purpose of
Executive. any of the Executive’s tenancies.
A Health and Social Services Board. Information held for the purpose of any past, current or proposed exercise by the Board of any function exercisable, by virtue of directions under Article 17(1) of the Health and Personal Social Services (Northern Ireland) Order 1972, by theBoard on behalfofthe Department of Health and Social Services with respect to the administration of personal social

services under—

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Sch. 12

(a)         the Children and Young Persons Act (Northern Ireland) 1968;

(b)        the Health and Personal Social Services (Northern Ireland) Order 1972;

(c)         Article 47 of the MatrimonialCauses (Northern Ireland) Order 1978;

(d)        Article 11 of the Domestic Proceedings (Northern Ireland) Order 1980;

(e)         the Adoption (Northern Ireland) Order 1987; or

(f)          the Children (Northern Ireland) Order 1995.

An HSS trust Information held for the purpose of any past, current or proposed exercise by the trust of any function exercisable, by virtue of an authorisation under Article3(1) of the Health and Personal Social Services (Northern Ireland) Order 1994, by the trust on behalf of a Health and Social Services Board with respect to the administration of personal social services under any statutory provision mentioned in the last preceding entry.

7.—(1) This paragraph applies for the interpretation of the Table in paragraph 6.

(2) Information contained in records kept by the Northern Ireland Housing Executive is“held for the purpose of any of the Executive’s tenancies” if it is held for any purpose of the relationship of landlord and tenant of a dwelling which subsists, has subsisted or may subsist between the Executive and any individual who is, has been or, as the case may be, has applied to be, a tenant of the

Executive.

Section 72.                                                                               SCHEDULE 13

Modifications of Act having effect before 24th October 2007

  1. After section 12 there is inserted—
“Rights of data 12A.—(1) A data subject is entitled at any time by notice in
subjects in relation to writing—
exempt manual (a) to require the data controller to rectify, block, erase or
data. destroy exempt manual data which are inaccurate or incomplete, or

(b) to require the data controller to cease holding exempt manual data in a way incompatible with the legitimate purposes pursued by the data controller.

  • A notice under subsection (1)(a) or (b) must state the data subject’s reasons for believing that the data are inaccurate ch2998s13a

. 13

or incomplete or, as the case may be, his reasons for believing that they are held in a way incompatible with the legitimate purposes pursued by the data controller.

  • If the court is satisfied, on the application of any person who has given a notice under subsection (1) which appears to the court to be justified (or to be justified to any extent) that the data controller in question has failed to comply with the notice, the court may order him to take such steps for complying with the notice (or for complying with it to that extent) as the court thinks fit.
  • In this section “exempt manual data” means—
    • in relation to the first transitional period, asdefined by paragraph 1(2) of Schedule 8, data to which paragraph 3 or 4 of that Schedule applies, and
    • in relation to the second transitional period,as so defined, data to which paragraph 14 of that Schedule applies.

(5) For the purposes of this section personal data are incompleteif,andonlyif,thedata,althoughnotinaccurate,are such that their incompleteness would constitute a contravention of the third or fourth data protection principles, if those principles applied to the data.”

  1. In section 32—
    • in subsection (2) after “section 12” there is inserted—

“(dd) section 12A,”, and

  • in subsection (4) after “12(8)” there is inserted “, 12A(3)”.
  1. In section 34 for “section 14(1) to(3)” there issubstituted “sections 12A and14(1) to (3).”
  2. In section 53(1) after “12(8)” there is inserted “, 12A(3)”.
  3. In paragraph 8 of Part II of Schedule 1, the word “or” at the end ofparagraph (c) is omitted and after paragraph (d) there is inserted “or

(e) he contravenes section 12A by failing to comply with a notice given under subsection (1) of that section to the extent that the notice is justified.”

SCHEDULE 14

Transitional provisions and savings

Interpretation

1. In this Schedule—

Section 73.
“the 1984 Act” means the Data Protection Act 1984; 1984 c. 35.

“the old principles” means the data protection principles within the meaning of the 1984 Act;

“the new principles” means the data protection principles within the meaning of this Act.

 

Effect of registration under Part II of 1984 Act

2.—(1) Subject to sub-paragraphs (4) and (5) any person who, immediately before the commencement of Part III of this Act—

  • is registered as a data user under Part II of the 1984 Act, or
  • is treated by virtue of section 7(6) of the 1984 Act as so registered,is exempt from section 17(1) of this Act until the end of the registration period or, if earlier, 24th October 2001.
  • In sub-paragraph (1) “the registration period”, in relation to a person, means—
    • where there is a single entry in respect of that person as a data user, theperiod at the end of which, if section 8 of the 1984 Act had remained in force, that entry would have fallen to be removed unless renewed, and
    • where there are two or more entries in respect of that person as a datauser, the period at the end of which, if that section had remained in force,the lastof thoseentriestoexpirewouldhavefallentoberemoved unless renewed.
  • Any application for registration as a data user under Part II of the 1984 Act whichis receivedby the Commissioner before the commencement of Part III of this Act (including any appeal against a refusal of registration) shall be determined in accordance with the old principles and the provisions of the 1984 Act.
  • If a person falling within paragraph (b) of sub-paragraph (1) receives a notification under section 7(1) of the 1984 Act of the refusal of his application, sub-paragraph (1) shall cease to apply to him—
    • if no appeal is brought, at the end of the period within which an appealcan be brought against the refusal, or
    • on the withdrawal or dismissal of the appeal.
  • If a data controller gives a notification under section 18(1) at a time when he is exempt from section 17(1) by virtue of sub-paragraph (1), he shall cease to be so exempt.
  • The Commissioner shall include in the register maintained under section 19 an entry in respect of each person who is exempt from section 17(1) by virtue of sub-paragraph (1); and each entry shall consist of the particulars which, immediately before the commencement of Part III of this Act, were included (or treated as included) in respect of that person in the register maintained under section 4 of the 1984 Act.
  • Notification regulations under Part III of this Act may make provision modifying the duty referred to in section 20(1) in its application to any person in respect of whom an entry in the register maintained under section 19 has been made under sub-paragraph (6).
  • Notification regulations under Part III of this Act may make further transitional provision in connection with the substitution of Part III of this Act for Part II of the 1984 Act (registration), including provision modifying the application of provisions of Part III in transitional cases.

Rights of data subjects

3.—(1) The repeal of section 21 of the 1984 Act (right of access to personal data) does not affect the application of that section in any case in which the request (together with the information referred to in paragraph (a) of subsection (4) of that section and, in a case where it is required, the consent referred to in paragraph(b)ofthatsubsection)wasreceivedbeforethedayonwhich therepeal comes into force.

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  • Sub-paragraph (1) does not apply where the request is made by reference to this Act.
  • Any fee paid for the purposes of section 21 of the 1984 Act before the commencement of section 7 in a case not falling within sub-paragraph (1) shall be taken to have been paid for the purposes of section 7.
  1. The repeal of section 22 of the 1984 Act (compensation for inaccuracy) andthe repeal of section 23 of that Act (compensation for loss or unauthorised disclosure) do not affect the application of those sections in relation to damage or distress suffered at any time by reason of anything done or omitted to be done before the commencement of the repeals.
  2. The repeal of section 24 of the 1984 Act (rectification and erasure) does notaffect any case in which the application to the court was made before the day on which the repeal comes into force.
  3. Subsection (3)(b) of section 14 does not apply where the rectification,blocking, erasure or destruction occurred before the commencement of that section.

Enforcement and transfer prohibition notices served under Part V of 1984 Act

7.—(1) If, immediately before the commencement of section 40— (a) an enforcement notice under section 10 of the 1984 Act has effect, and

(b) eitherthetimeforappealingagainstthenoticehasexpiredoranyappeal has been determined,

then, after that commencement, to the extent mentioned in sub-paragraph (3), the notice shall have effect for the purposes of sections 41 and 47 as if it were an enforcement notice under section 40.

  • Where an enforcement notice has been served under section 10 of the 1984 Act before the commencement of section 40 and immediately before that commencement either—
    • the time for appealing against the notice has not expired, or
    • an appeal has not been determined,the appeal shall be determined in accordance with the provisions of the 1984 Act and the old principles and, unless the notice is quashed on appeal, to the extent mentioned in sub-paragraph (3) the notice shall have effect for the purposes of sections 41 and 47 as if it were an enforcement notice under section 40.
  • An enforcement notice under section 10 of the 1984 Act has the effect described in sub-paragraph (1) or (2) only to the extent that the steps specified in the notice for complying with the old principle or principles in question are steps which the data controller could be required by an enforcement notice under section 40 to take for complying with the new principles or any of them.

8.—(1) If, immediately before the commencement of section 40—

  • a transfer prohibition notice under section 12 of the 1984 Act haseffect, and
  • eitherthetimeforappealingagainstthenoticehasexpiredoranyappealhas been determined,

then, on and after that commencement, to the extent specified in sub-paragraph (3), the notice shall have effect for the purposes of sections 41 and 47 as if it were an enforcement notice under section 40.

(2) Whereatransferprohibitionnoticehasbeenservedundersection12ofthe

1984 Act and immediately before the commencement of section 40 either—

  • the time for appealing against the notice has not expired, or
  • an appeal has not been determined,the appeal shall be determined in accordance with the provisions of the 1984 Act and the old principles and, unless the notice is quashed on appeal, to the extent mentioned in sub-paragraph (3) the notice shall have effect for the purposes of sections 41 and 47 as if it were an enforcement notice under section 40.

(3) Atransferprohibitionnoticeundersection12ofthe1984Acthastheeffect described in sub-paragraph (1) or (2) only to the extent that the prohibition imposed by the notice is one which could be imposed by an enforcement notice under section 40 for complying with the new principles or any of them.

Notices under new law relating to matters in relation to which

1984 Act had effect

  1. The Commissioner may serve an enforcement notice under section 40 on orafter the day on which that section comes into force if he is satisfied that, before that day, the data controller contravened the old principles by reason of any act or omission which would also have constituted a contravention of the new principles if they had applied before that day.
  2. Subsection (5)(b) of section 40 does not apply where the rectification,blocking, erasure or destruction occurred before the commencement of that section.
  3. The Commissioner may serve an information notice under section 43 onor after the day on which that section comes into force if he has reasonable grounds for suspecting that, before that day, the data controller contravened the old principles by reason of any act or omission which would also have constituted a contravention of the new principles if they had applied before that day.
  4. Where by virtue of paragraph 11 an information notice is served on thebasis of anything done or omitted to be done before the day on which section 43 comes into force, subsection (2)(b) of that section shall have effect as if the reference to the data controller having complied, or complying, with the new principles were a reference to the data controller having contravened the old principles by reasonof any such actor omission as is mentioned in paragraph11.

Self-incrimination, etc.

13.—(1) In section 43(8), section 44(9) and paragraph 11 of Schedule 7, any reference toan offence underthis Actincludes areference to an offenceunder the 1984 Act.

(2) In section34(9) ofthe 1984Act, any reference to an offence underthat Act includes a reference to an offence under this Act.

Warrants issued under 1984 Act

  1. The repeal of Schedule 4 to the 1984 Act does not affect the application of that Schedule in any case where a warrant was issued under that Schedule before the commencement of the repeal.

Complaints under section 36(2) of 1984 Act and requests for assessment under section 42

  1. The repeal of section 36(2) of the 1984 Act does not affect the application of that provision in any case where the complaint was received by the Commissioner before the commencement of the repeal.

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16.In dealingwithacomplaintundersection 36(2)ofthe1984Actor arequest for an assessment under section 42 of this Act, the Commissioner shall have regard to the provisions from time to time applicable to the processing, and accordingly—

(a)    in section 36(2) of the 1984 Act, the reference to the old principles andtheprovisionsofthatActincludes,inrelationtoanytimewhenthenew principles and the provisions of this Act have effect, those principles and provisions, and

(b)    in section 42 of this Act, the reference to the provisions of this Actincludes, in relation to any time when the old principles and the provisions of the 1984 Act had effect, those principles and provisions.

Applications under Access to Health Records Act 1990 or corresponding Northern Ireland legislation

17.—(1) The repeal of any provision ofthe Accessto Health Records Act 1990 does not affect—

(a)    the application of section 3 or 6 of that Act in any case in which theapplicationunder thatsection wasreceivedbeforethe dayon whichthe repeal comes into force, or

(b)    the application of section 8 of that Act in any case in which theapplication to the court was made before the day on which the repeal comes into force.

(2) Sub-paragraph (1)(a) does not apply in relation to an application for access to information which was made by reference to this Act.

1990 c. 23.
18.—(1) The revocation of any provision of the Access to Health Records S.I. 1993/1250
(Northern Ireland) Order 1993 does not affect—

(a)    the application of Article 5 or 8 of that Order in any case in which theapplication underthat Article wasreceivedbefore the day on whichthe repeal comes into force, or

(b)    the application of Article 10 of that Order in any case in which theapplication to the court was made before the day on which the repeal comes into force.

(2) Sub-paragraph (1)(a) does not apply in relation to an application for access to information which was made by reference to this Act.

Applications under regulations under Access to Personal Files Act 1987 or corresponding Northern Ireland legislation

19.—(1) The repeal of the personal files enactments does not affect the application of regulations under those enactments in relation to—

(a)              any request for information,

(b)              any application for rectification or erasure, or

(c)              any application for review of a decision,which was made before the day on which the repeal comes into force.

(2)      Sub-paragraph (1)(a) does not apply in relation to a request for information which was made by reference to this Act.

(3)      In sub-paragraph (1) “the personal files enactments” means—

(N.I.4).
(a) in relation to Great Britain, the Access to Personal Files Act 1987, and 1987 c. 37.
(b) in relation to Northern Ireland, Part II of the Access to Personal Files S.I. 1991/1707
and Medical Reports (Northern Ireland) Order 1991. (N.I.14).

Applications under section 158 of Consumer Credit Act 1974

1974 c. 39. 20. Section 62 does not affect the application of section 158 of the Consumer Credit Act 1974 in any case where the request was received before the commencement of section 62, unless the request is made by reference to this Act.

Section 74(1).                                                                          SCHEDULE 15

Minor and consequential amendments

Public Records Act 1958 (c. 51)

1.—(1) In Part II of the Table in paragraph 3 of Schedule 1 to the Public Records Act 1958 (definition of public records) for “the Data Protection Registrar” there is substituted “the Data Protection Commissioner”.

  • That Schedule shall continue to have effect with the following amendment 1984 c. 35. (originallymadebyparagraph14ofSchedule2totheDataProtectionAct1984).
  • After paragraph 4(1)(n) there is inserted—

“(nn) records of the Data Protection Tribunal”.

Parliamentary Commissioner Act 1967 (c. 13)

  1. In Schedule 2 to the Parliamentary Commissioner Act 1967 (departmentsetc. subject to investigation) for “Data Protection Registrar” there is substituted “Data Protection Commissioner”.
  2. In Schedule 4 to that Act (tribunals exercising administrative functions), inthe entry relating to the Data Protection Tribunal, for “section 3 of the Data Protection Act 1984” there is substituted “section 6 of the Data Protection Act 1998”.

Superannuation Act 1972 (c. 11)

  1. In Schedule 1 to the Superannuation Act 1972, for “Data ProtectionRegistrar” there is substituted “Data Protection Commissioner”.

House of Commons Disqualification Act 1975 (c. 24)

5.—(1) Part II of Schedule 1 to the House of Commons Disqualification Act 1975 (bodies whose members are disqualified) shall continue to include the entry “The Data Protection Tribunal” (originally inserted by paragraph 12(1) of Schedule 2 to the Data Protection Act 1984).

(2) In Part III of that Schedule (disqualifying offices) for “The Data Protection Registrar”there issubstituted“TheDataProtection Commissioner”.

Northern Ireland Assembly Disqualification Act 1975 (c. 25)

6.—(1) Part II of Schedule 1 to the Northern Ireland Assembly Disqualification Act 1975 (bodies whose members are disqualified) shall continue to include the entry “The Data Protection Tribunal” (originally inserted by paragraph 12(3) of Schedule 2 to the Data Protection Act 1984).

(2) In Part III of that Schedule (disqualifying offices) for “The Data Protection Registrar”there issubstituted“TheDataProtection Commissioner”.

 

ch2998s15a

. 15 Representation of the People Act 1983 (c. 2)

  1. In Schedule 2 of the Representation of the People Act 1983 (provisions which may be included in regulations as to registration etc), in paragraph 11A(2)—
  • for “data user” there is substituted “data controller”, and
  • for “the Data Protection Act 1984” there is substituted “the DataProtection Act 1998”.

Access to Medical Reports Act 1988 (c. 28)

8.Insection2(1)oftheAccesstoMedicalReportsAct1988(interpretation),in the definition of “health professional”, for “the Data Protection (Subject Access Modification) Order 1987” there is substituted “the Data Protection Act 1998”.

Football Spectators Act 1989 (c. 37)

9.—(1) Section 5 of the Football Spectators Act 1989 (national membership scheme: contents and penalties) is amended as follows.

  • In subsection (5), for “paragraph 1(2) of Part II of Schedule 1 to the Data Protection Act 1984” there is substituted “paragraph 1(2) of Part II of Schedule 1 to the Data Protection Act 1998”.
  • In subsection (6), for “section 28(1) and (2) of the Data Protection Act 1984” there is substituted “section 29(1) and (2) of the Data Protection Act 1998”.

Education (Student Loans) Act 1990 (c. 6)

  1. Schedule 2 to the Education (Student Loans) Act 1990 (loans for students) so far as that Schedule continues in force shall have effect as if the reference in paragraph 4(2) to the Data Protection Act 1984 were a reference to this Act.

Access to Health Records Act 1990 (c. 23)

  1. For section 2 of the Access to Health Records Act 1990 there issubstituted—

“Health 2. In this Act “health professional” has the same meaning as professionals. in the Data Protection Act 1998.”

  1. In section 3(4) of that Act (cases where fee may be required) in paragraph(a), for “the maximum prescribed under section 21 of the Data Protection Act 1984” there is substituted “such maximum as may be prescribed for the purposes of this section by regulations under section 7 of the Data Protection Act 1998”.
  2. In section 5(3) of that Act (cases where right of access may be partiallyexcluded) for the words from the beginning to “record” in the first place where it occurs there is substituted “Access shall not be given under section 3(2) to any part of a health record”.

Access to Personal Files and Medical Reports (Northern Ireland) Order 1991

(1991/1707 (N.I. 14))

14.In Article 4ofthe Access to Personal Filesand MedicalReports (Northern Ireland) Order 1991 (obligation to give access), in paragraph (2) (exclusion of information to which individual entitled under section 21 of the Data Protection Act 1984) for “section 21 of the Data Protection Act 1984” there is substituted “section 7 of the Data Protection Act 1998”.

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84

Sch. 15

  1. In Article 6(1) of that Order (interpretation), in the definition of “healthprofessional”, for “the Data Protection (Subject Access Modification) (Health) Order 1987” there is substituted “the Data Protection Act 1998”.

Tribunals and Inquiries Act 1992 (c. 53)

  1. In Part 1 of Schedule 1 to the Tribunals and Inquiries Act 1992 (tribunalsunder direct supervision of Council on Tribunals), for paragraph 14 there is substituted—

“Data protection                                                 14.(a)        The        Data         Protection

Commissioner appointed under section 6 of the Data Protection Act 1998;

(b) the Data Protection Tribunal constituted under that section, in respect of its jurisdiction under section 48 of that Act.”

Access to Health Records (Northern Ireland) Order 1993 (1993/1250 (N.I. 4))

  1. For paragraphs (1) and (2) of Article 4 of the Access to Health Records(Northern Ireland) Order 1993 there is substituted—

“(1) In this Order “health professional” has the same meaning as in the Data Protection Act 1998.”

  1. In Article 5(4) of that Order (cases where fee may be required) in subparagraph (a), for “the maximum prescribed under section 21 of the Data Protection Act 1984” there is substituted “such maximum as may be prescribed for the purposes of this Article by regulations under section 7 of the Data Protection Act 1998”.
  2. In Article 7 of that Order (cases where right of access may be partiallyexcluded) for the words from the beginning to “record” in the first place where it occurs there is substituted “Access shall not be given under Article 5(2) to any part of a health record”.

Section 74(2).                                                                          SCHEDULE 16

Repeals and revocations

Part I

Repeals

Chapter Short title Extent of repeal
1984 c. 35. The Data Protection Act

1984.

The whole Act.
1986 c. 60. The Financial Services Act 1986. Section 190.
1987 c. 37. The Access to Personal Files Act 1987. The whole Act.
1988 c. 40. The Education Reform Act

1988.

Section 223.
1988 c. 50. The Housing Act 1988. In Schedule 17, paragraph

80.

ch2998s16a

. 16

Chapter Short title Extent of repeal
1990 c. 23. The        Access      to         Health In section 1(1), the words
Records Act 1990. from “but does not” to the end.

In section 3, subsection (1)(a) to (e) and, in subsection (6)(a), the words “in the case of an application made otherwise than by the patient”.

Section 4(1) and (2).

In section 5(1)(a)(i), the words “of the patient or” and the word “other”.

In section 10, in subsection (2) the words “or orders” and in subsection (3) the words “or an order under section 2(3) above”.

In section 11, the definitions of “child” and “parental responsibility”.

1990 c. 37. The Human Fertilisation and Embryology Act

1990.

Section 33(8).
1990 c. 41. The         Courts      and        Legal In Schedule 10, paragraph
Services Act 1990. 58.
1992 c. 13. The Further and Higher Education Act 1992. Section 86.
1992 c. 37. The Further and Higher Education (Scotland) Act 1992. Section 59.
1993 c. 8. The Judicial Pensions and Retirement Act 1993. In Schedule 6, paragraph 50.
1993 c. 10. The Charities Act 1993. Section 12.
1993 c. 21. The Osteopaths Act 1993. Section 38.
1994 c. 17. TheChiropractorsAct1994. Section 38.
1994 c. 19. The         Local         Government In Schedule 13, paragraph
(Wales) Act 1994. 30.
1994 c. 33. The Criminal Justice and Public Order Act 1994. Section 161.
1994 c. 39. The Local Government etc. In Schedule 13, paragraph
(Scotland) Act 1994. 154.

Part II

Revocations

Number Title Extent of revocation
S.I. 1991/1142. The Data Protection Registration Fee Order 1991. The whole Order.

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86

Sch. 16

Number Title Extent of revocation
S.I. 1991/1707 The Access to Personal Files Part II.
(N.I. 14).         and      Medical         Reports

(Northern Ireland) Order 1991.

The Schedule.
S.I. 1992/3218. The Banking Co-ordination In Schedule 10, paragraphs
       (Second                      Council

Directive)        Regulations 1992.

15 and 40.
S.I. 1993/1250 The        Access      to         Health In           Article       2(2),       the
(N.I. 4).         Records                  (Northern definitions of “child” and
Ireland) Order 1993. “parental responsibility”.

In Article 3(1), the words from “but does not include” to the end.

In Article 5, paragraph (1)(a) to (d) and, in paragraph (6)(a), the words “in the case of an application made otherwise than by the patient”.

Article 6(1) and (2).

In Article 7(1)(a)(i), the words “of the patient or” and the word “other”.

S.I. 1994/429 The Health and Personal In Schedule 1, the entries
(N.I. 2). Social Services (Northern relating to the Access to
Ireland) Order 1994. Personal Files and Medical Reports

(Northern Ireland) Order 1991.

S.I. 1994/1696. The Insurance Companies (Third Insurance

Directives)      Regulations 1994.

In Schedule 8, paragraph 8.
S.I. 1995/755 The        Children          (Northern In Schedule 9, paragraphs
(N.I. 2). Ireland) Order 1995. 177 and 191.
S.I. 1995/3275. The        Investment        Services InSchedule10,paragraphs3
Regulations 1995. and 15.
S.I. 1996/2827. The                            Open-Ended In Schedule 8, paragraphs 3
Investment Companies (Investment Companies with Variable Capital) Regulations 1996. and 26.

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