Select Committee on Public Administration Memoranda


APPENDIX I

SUMMARY OF THE PRINCIPAL PROVISIONS FOR THE INTERFACE WITH THE DATA PROTECTION ACT 1998

  1.  This appendix summarises the principal provisions setting out the interface arrangements between the Data Protection Act 1998 and the Freedom of Information Act.

EXTENDING THE DATA PROTECTION ACT 1998

  2.  Freedom of Information will overlay existing access rights and laws requiring disclosure of information. Freedom of Information requires access to all information held by public authorities, subject to the specified exemptions. The Data Protection Act 1998 covers most but not all personal information. It will be extended to cover all personal information which is held by public authorities. This will bring certain structured and unstructured personal information within the scope of the 1998 Act.

APPLICATION OF THE DATA PROTECTION ACT 1998 TO THE EXTRA CATEGORY OF PERSONAL INFORMATION

  3.  The draft Bill provides that much of the 1998 Act is disapplied from the extra category of personal information brought within the scope of the 1998 Act by the Freedom of Information Act. Only some of the data protection principles and the provisions of the Data Protection Act 1998 will apply. In summary those data protection principles and the provisions relating to individuals' rights are:

    —  the section 7 right of subject access;

    —  the fourth data protection principle which requires information to be accurate and, where necessary, up to date;

    —  the section 14 right to rectify, block, erase or destroy inaccurate data;

    —  the sixth data protection principle where this relates to subject access or to the right to rectify, block, erase or destroy inaccurate data; and

    —  the section 13 compensation right, limited to damage suffered as a result of breach of the subject access right or the fourth data protection principle, and for any associated distress.

  Even these limited provisions will not apply to personnel records where these fall within this extra category of personal data.

ACCESS TO PERSONAL INFORMATION

  4.  Applicants will not be required to specify whether they are applying for access to personal information under Freedom of Information or data protection legislation, or indeed to refer to either Act. The public authority will be required to identify which legislation applies to the request.

  5.  The draft Bill requires that every request for information which involves personal information will involve reference to the Data Protection Act 1998.

  6.  Where access is requested to the individual's own information the information becomes exempt information under the Freedom of Information Act and access will be provided under the amended Data Protection Act 1998. Special provisions will apply to subject access to "unstructured" personal data.

  7.  Whatever the type of personal data involved, if some or all of the information does not have to be provided under the 1998 Act, the public authority must then decide whether to make a discretionary disclosure under the Freedom of Information Act.

  8.  Where access is requested to third party information the information becomes exempt information under the Freedom of Information Act if one of three conditions apply:

    —  the disclosure would breach a data protection principle;

    —  a subject access exemption would apply; or

    —  in the case of personal data coming within the scope of the unamended Data Protection Act 1998, if a section 10 notice preventing processing applies so as to restrain the disclosure.

  Only the fourth data protection principle and part of the sixth data protection principle will apply to the extra category of personal data brought within the scope of the Data Protection Act by the Freedom of Information Act. When deciding whether the disclosure would breach a data protection principle, this is to be disregarded and the decision made as if all the data protection principles applied.

  9.  If the information is exempt information, the public authority does not have to disclose the information. The public authority must then decide whether to make a discretionary disclosure under the Freedom of Information Act.


 
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Prepared 16 August 1999