Clause 65: Decisions as to discretionary disclosure of records in public record offices

202.     This clause makes the discretionary disclosure of information by the Public Record Office under clause 13, in the case of information contained in a public record transferred to it from another public authority, subject to the consent of the authority responsible. This will be the Minister, in the case of a government department in the charge of a Minister, or other person, in the case of any other public authority, appearing to the Lord Chancellor to be primarily concerned (generally, the authority from which it was transferred). Corresponding provision for Northern Ireland is included.

Clause 66: Amendments of public records legislation

203.     This clause introduces Schedule 5 which amends the Public Records Act 1958 to make provision consequential on the application of the Bill to the Public Records Office and to create a power to extend the meaning of public records for the purposes of that Act.

Part VII: Amendments of Data Protection Act 1998: Personal information held by public authorities

Clauses 67 to 71

204.     Part VII of the Bill has the effect that the Data Protection Act 1998 rights of subject access and data accuracy are extended to all personal information held by public authorities, with some modifications and exemptions.

205.     This is achieved by the device of providing that all personal information held by public authorities counts as personal data for the purposes of the 1998 Act, then cancelling all of the effects of that redefinition except those relating to subject access and accuracy (other than as regards personal information and non-designated functions of public authorities). Some modifications are made to the right of subject access as it relates to certain unstructured records.

206.     The Data Protection Act 1998 creates two important rights for individuals in respect of information which is personal to them. Individuals are entitled to be told whether personal information relating to them is being held (or otherwise processed) and, if so, to have both it and certain other details about it communicated to them. This is known as subject access. The Act also makes provision placing a duty of accuracy on all data controllers. In both cases, the 1998 Act makes the rights enforceable both in the courts and, as a regulatory matter, by the Commissioner. These rights are, however, limited by the terms of application of the Data Protection Act 1998 itself. In particular, the scope of that Act is limited by the key definitions set out in section 1(1), most importantly the definition of "data", which is restricted to information which is automated, or intended for automated processing, or part of a structured "relevant filing system" (as defined), or part of an "accessible record" (defined by section 68 to mean certain health, education, housing and social work records).

207.     Clause 67 has the effect that, for public authorities within the terms of the Bill, the limitations on the definition of "data" in s.1(1) of the 1998 Act disappear (except to the extent that the information relates to functions in respect of which, under clause 6, the Bill does not apply). Subject to that limitation, the 1998 Act therefore applies to any personal information held by a public authority. That means, specifically, that the Data Protection Act applies to public authorities' non-automated records even though they are not part of a "relevant filing system" and not part of an "accessible record" as defined in the Act. An example of that might be incidental personal information on a policy file, or in loose papers. The chief effect of this clause for present purposes is that it achieves the extension of all the Data Protection Act provisions about subject access and accuracy to this new range of information. Section 1 of the 1998 Act, as amended by the Bill, is set out as an Annex to these Notes.

208.     But subject access will work in a slightly modified way in this new area, and clause 68 introduces two important qualifications to the subject access right which are not found in the 1998 Act as it stands. Clause 68 itself applies to only some of the personal information added to the scope of subject access by clause 67. It does not apply to information recorded on paper which, although it is not part of a "relevant filing system" or part of an "accessible record", is nevertheless structured to a certain extent by reference to individuals. An example of such relatively structured information might be a case file about an individual which contains correspondence about a number of matters relating to that individual and is indexed by reference only to the dates of the correspondence. This relatively structured information will be treated for subject access purposes in exactly the same way as other personal information within the scope of the Data Protection Act. But two special rules will apply in respect of subject access to the residue, that is, the relatively unstructured information.

• Firstly, subject access will not be given to this information unless the information is expressly described in the request. A request from a data subject for access to his own personal data has to be met in general by giving access to all of that subject's data, without his having to specify any of it. No part of the residue of relatively unstructured personal information, however, will be included in response to a subject access request unless the data subject has expressly described it.

• Secondly, even where residual relatively unstructured personal information has been described, the authority will be able to rely on provisions equivalent to those set out in clause 11 of the Bill to refuse a request in so far as it relates to that information where to do so would cost more than is provided for by a prescribed cost ceiling.

209.     Clause 67 also provides that the extension of subject access is to have no effect on the criminal offence created by section 56 of the 1998 Act, which prohibits in some circumstances the act of requiring the production of information obtained in the exercise of the right of subject access.

210.     However, as well as achieving the expansion (and partial modification) of data subject rights, the amendment to the definition of "data" produced by clause 67 would of course bring all the rest of the 1998 Act to bear on the totality of public authorities' personal information. Given that the new rights exist and are operated wholly within the context of the 1998 Act, the extension of the definition of "data" is a streamlined way of extending the key subject access and accuracy provisions. But the general application of the 1998 Act to all personal information held by public authorities is not an intended byproduct, and the Bill therefore needed to ensure that the excess application of the 1998 Act was cancelled out. That is what clause 69 achieves. It strips out of the extension of the new definition of "data" all the substantive effects of the Data Protection Act 1998 except those relating to subject access and accuracy.

211.     Clause 69 has one further effect. It provides that the extension of the rights of subject access and accuracy achieved in Part VII of the Bill does not apply to personnel information held by public authorities.

212.     Clause 70 amends section 16(1) of the Data Protection Act 1998 so as to require data controllers who are public authorities for the purposes of the Bill, to state that fact when making any notification under Part III of the 1998 Act. This information will then appear on the public register maintained under Part III of the 1998 Act.

213.     Clause 71 amends section 34 of the Data Protection Act 1998. Section 34 provides that personal data are exempt from the Act's provisions relating to subject access and accuracy, and from certain other restrictions on disclosure, if they consist of information which is subject to a statutory duty to make it available to the public. That is because such statutory access provisions - such as those governing the Register of births, marriages and deaths or the Land Registry - make their own detailed arrangements for access, accuracy, and disclosure, which are accordingly made to prevail over the more general provisions of the 1998 Act. But section 34's reference to statutory obligations would be capable of including those in the Bill, thus making the Bill's regime predominate over the 1998 Act's. This would not be consistent with the Bill's express provision that, in the case of personal data, its own provisions are subject to the limits of the 1998 Act. Clause 71 removes the inconsistency by providing that the reference to statutory obligations in section 34 is not to include those in the Bill.

214.     Clause 72 introduces Schedule 6 which contains further amendments to the 1998 Act.

Part VIII: Miscellaneous and supplemental

Clause 73: Power to make provision relating to environmental information.

215.     This clause gives power to the Secretary of State to make regulations to implement the United Nations Economic Commission for Europe (UNECE) Convention on access to information, public participation in decision-making and access to justice in environmental matters, which the UK signed at Aarhus in 1998 (the Aarhus Convention), insofar as the Convention relates to the provision of access to environmental information.

216.     The regulations will form a free-standing regime, giving access to environmental information. Clause 37 exempts environmental information which is available under the regulations from the main provisions of the Bill.

217.     The regulations made under the power contained in this clause will replace the current Environmental Information Regulations 1992 (SI 1992/3240), as amended by the Environmental Information (Amendment) Regulations 1998 (SI 1998/1447). These regulations implement Directive 90/313/EEC on the Freedom of Access to information in the Environment.

218.     Subsection (3) gives the Secretary of State power to make regulations to implement those articles of the Aarhus Convention which relate to the provision of access to environmental information, or for the purpose of dealing with matters arising from them, or amendments to them.

219.     Subsection (4) permits the regulations to include provisions enabling charges to be made in connection with the disclosure of environmental information, and to give effect to any obligations the regulations may impose.

220.     Subsection (4) also permits certain provisions of the Bill to be applied to the regulations, with modifications. The regulations may make provision for a code of practice to apply to bodies subject to the regulations and for the application of the Information Commissioner's powers under clauses 46 and 47, as modified if necessary, to it. The regulations may also apply, with modifications, to Parts IV and V of the Bill (dealing with enforcement and appeals), so that the Information Commissioner enforces the regulations and, as set out in Part V, with the Tribunal, considers any appeals relating to applications for environmental information under the regulations. The regulations may also make provision for any transitional or consequential provisions that are appropriate.

221.     Subsection (5) ensures that the regulations made under the clause to implement the Aarhus Convention do not apply to the Scottish bodies referred to in clause 79.

Clause 74: Power to amend or repeal enactments prohibiting disclosure of information

222.     This clause empowers the Secretary of State to make orders repealing or amending primary or secondary legislation which has the effect of prohibiting disclosure of information under the Bill. These orders may remove or relax the prohibitions and they may also make consequential, incidental or transitional provision. Orders may make different provision for different cases and can only be made with the approval of both Houses of Parliament (clause 81(2)).

Clause 75: Offence of altering etc. records with intent to prevent disclosure

223.     This clause makes it an offence to alter, deface, block, erase, destroy or conceal records held by a public authority with the intention of preventing its disclosure to an applicant who has made a request for the information and is entitled to receive it. The offence applies to the public authority and anyone who is employed by, is an officer of, or is subject to the direction of, the public authority. A person found guilty of the offence is liable to a fine not exceeding level 5 on the standard scale (currently £5000). The offence cannot be committed by a government department but can be committed by civil servants.

Clause 76: Saving for existing powers

224.     This clause ensures that nothing in the Bill limits existing powers of public authorities to disclose information held by them.

Clause 77: Copyright

225.     Section 50 of the Copyright, Designs and Patents Act 1988 provides that where the doing of a particular act is specifically authorised by an Act of Parliament, the doing of that Act does not infringe copyright. Section 50 will apply to disclosures under clause 1. This clause ensures that similar protection is available to a public authority making a discretionary disclosure under clause 13.

Clause 78: Defamation

226.     This clause provides that for the purposes of the law of defamation a disclosure under the Bill is covered by qualified privilege, in cases where the information had been supplied to the public authority by a third person.

Clause 79: Scotland

227.      This clause provides that no order may be made under clauses 3(1) or 4 in respect of the Scottish Parliament, any part of the Scottish Administration, the Scottish Parliamentary Corporate Body or any Scottish public authority with mixed functions or no reserved functions within the meaning of the Scotland Act 1998. The power conferred by section 73(3) does not include power to make provision in relation to information held by these bodies. The Scottish Parliament has legislative competence in relation to freedom of information for these bodies.

Clause 80: Application to government departments, etc

228.     This clause ensures that each government department and the National Assembly for Wales is a separate public authority for the purposes of the Bill. However, that does not mean that a duty of confidence can be treated as arising between one government department and another.

Clause 81: Orders and regulations

229.     This provides that any power of the Secretary of State to make an order or regulations under this Bill shall be exercisable by statutory instrument. An order under clauses 4 (designation of further public authorities), 43 (additional exemptions), or 74 (power to amend or repeal enactments prohibiting disclosure of information) requires affirmative resolution procedure. An order under clause 3(5) and regulations under clauses 8 (fees), 9 (time for complying with request for information) and 14(1) (fees for discretionary disclosures) have to be laid before Parliament after being made. An order under clause 3(1) and regulations made under any other provision of the Act are subject to annulment in pursuance of a resolution of either House. By virtue of subsection (5), a draft order under clause 4 designating new public authorities which would otherwise attract the procedure applicable to hybrid instruments will not do so.

Clause 83: Expenses

230.     This authorises any increase attributable to the Bill in expenditure which is payable out of money provided by Parliament.

Clause 85: Commencement

231.     Subsection (1) provides for the immediate commencement of clauses 2 to 7 (the definition of 'public authority', power to add bodies to schedule 1, power to designate further public authorities, defining publicly-owned companies and public authorities to which the Act has limited application, definition of request for information) and Schedule 1, clauses 17 and 18 allowing the approval of publication schemes by the Commissioner and the drafting of model publication schemes, clause 42(2) to (6) empowering the Commissioner to carry out his general functions under the Bill, clause 49 requiring the Commissioner to lay reports before Parliament, clause 73 (power to make provision relating to environmental information), clause 74 (power to amend or repeal enactments prohibiting disclosure of information), clauses 76 to 83 (saving for existing powers, copyright, defamation, application to Scotland and to government departments, orders and regulations made under the Bill, interpretation and payment of expenses) and 85 (commencement), as well as paragraph 4 of Schedule 5 (enabling bodies to be added to the Table in paragraph 3 of Schedule 1 of the Public Records Act 1958) and clause 66 so far as it relates to that paragraph, those parts of Schedule 6 relating to Schedule 14 of the Data Protection Act 1998 and clause 72 so far as it relates to those parts and Part 1 of Schedule 7 (which repeals part of Schedule 14 to the Data Protection Act 1998) and clause 84 so far as it relates to that Part. The subsection also provides for the immediate commencement of certain paragraphs of Schedule 2 (with clause 16(4) so far as relating to those paragraphs) and so much of any other provisions of the Act as confers power to make any order, regulation or code of practice.

232.     Subsection (2) provides for the coming into force two months after the Act is passed of the provisions providing that the Data Protection Commissioner is to be known as the Information Commissioner and those that make consequential changes in related legislation.

233.     Subsections (3) and (4) provide that all other provisions must come into force within five years unless they have already been brought into force, provide flexibility to have different commencement dates for different purposes within the five year period, and allow for savings and transitional provision to be made, including provision capable of having effect after the five year period.

234.     Subsection (5) requires the Secretary of State to lay before Parliament annual reports on his proposals for commencement of those parts of the Bill not yet fully in force, until such time as the Bill is fully commenced in accordance with subsection (3).

Schedules

Schedule 1: Public authorities

235.     This Schedule lists "public authorities" for the purposes of the Bill. Government departments, the Houses of Parliament, the Northern Ireland Assembly, the National Assembly for Wales, the armed forces, local government bodies, National Health Service bodies, schools, colleges and universities, police authorities and Chief Officers of Police and other public bodies and offices are all specified as public authorities. The Schedule specifies the Greater London Authority, the London Fire and Emergency Planning Authority, Transport for London, the London Development Agency and the Metropolitan Police Authority all of which are to be established under the Greater London Authority Bill. Further persons, bodies or office holders may be designated by order under clauses 3 and 4.

Schedule 2: The Commissioner and the Tribunal

Part I: Provision consequential on clause 16(1) and (2)

236.     Part I makes provision required as a consequence of the renaming of the Data Protection Commissioner and Data Protection Tribunal. Paragraphs 1 and 2 make general provision in connection with the changing of the names of the Commissioner and the Tribunal. Specific amendments are made to:

Public Records Act 1958

Parliamentary Commissioner Act 1967

Superannuation Act 1972

Consumer Credit Act 1974

House of Commons Disqualification Act 1975

Northern Ireland Assembly Disqualification Act 1975

Tribunals and Inquiries Act 1992

Judicial Pensions and Retirement Act 1993

Data Protection Act 1998

Part II: Amendments relating to extension of functions of Commissioner and Tribunal

237.     This Part makes minor substantive amendments to the institutional provisions of the Data Protection Act 1998.

238.     Paragraph 16 amends section 6 of the 1998 Act to require lay members of the Tribunal to include persons representing applicants for information under the Freedom of Information Bill and persons to represent the interests of public authorities.

239.     Paragraph 17 amends section 26(2) of the 1998 Act to ensure that in prescribing notification fees the Secretary of State is to have regard to the expenses of the Commissioner and Tribunal under the 1998 Act only, and not their expenses under the Freedom of Information Bill.

240.     Paragraph 18 amends section 58 of the 1998 Act to provide that information may be passed to the Commissioner or Tribunal to allow them to discharge their freedom of information functions.

241.     Paragraph 19 amends section 59 of the 1998 Act to provide that the duty of confidentiality on the Commissioner, his staff and agents and related offence under the 1998 Act apply also in respect of information obtained by or furnished to the Commissioner under the Freedom of Information Bill.

242.     Paragraph 20 amends Schedule 5 to the 1998 Act to allow the Commissioner to appoint a second deputy commissioner and states that, if two are appointed, the Commissioner should specify the functions of each.

243.     Paragraph 21 amends Schedule 5 to the 1998 Act to enable both deputy commissioners to perform the functions of the Commissioner in relation to freedom of information as well as data protection in the event of a vacancy in the Commissioner post or when the Commissioner is unable to act.

244.     Paragraph 22 amends paragraph 9(1) of Schedule 5 to the 1998 Act to provide that the Commissioner's funding regime, set up in respect of his functions under the Data Protection Act 1998 and consumer credit legislation, applies also in respect of his freedom of information functions.

Schedule 3: Powers of entry and inspection

245.     This Schedule sets out the circumstances in which, where he suspects a contravention of the Bill, the Commissioner may seek a warrant enabling him to enter and search premises and seize material. The powers are comparable to the ones available to him under Schedule 9 to the Data Protection Act 1998.

Issue of Warrants

246.     Paragraph 1(1) allows a Circuit judge to issue a warrant to the Commissioner where the judge is satisfied by information from the Commissioner on oath that there are reasonable grounds for suspecting either that the public authority has failed or is failing to comply with any of the requirements of Part I of the Bill, so much of a decision notice as requires steps to be taken, or an information notice or enforcement notice, or that an offence under clause 75 has been or is being committed. The judge must also be satisfied that evidence of the failure or of the offence is to be found on the premises specified.

247.     Paragraph 1(2) sets out the action that may be taken under the warrant. The Commissioner or his officers or staff may, within seven days, enter and search the premises in question and inspect, examine, operate and test any relevant equipment. They may inspect and seize any documents or other material which may be evidence of the alleged contravention or offence.

248.     Paragraph 2(1) sets out further conditions for the issue of a warrant. The judge must be satisfied that:

a)     the Commissioner has given seven days' notice in writing to the occupier of the premises demanding access;

b)     access was demanded at a reasonable hour and was unreasonably refused; or, if entry was granted, the occupier refused unreasonably to comply with a request; and

c)     the occupier has been notified by the Commissioner of the application for the warrant and has had an opportunity of being heard by the judge.

249.     Paragraph 2(2) says that the above conditions do not apply if the judge is satisfied that the case is one of urgency, or that meeting the conditions would defeat the purpose for which the warrant is being sought.

250.     Paragraph 3 requires the judge to issue not only the warrant but also two certified copies of it.

Execution of warrants

251.     Paragraph 4 allows necessary, reasonable force to be used in executing a warrant.

252.     Paragraph 5 requires the warrant to be executed at a reasonable hour unless there are grounds for suspecting that doing so would mean that the evidence would not be found.

253.     Paragraph 6 requires the person occupying the premises to be shown and given a copy of the warrant if he is present when it is executed. If the occupier is not present, a copy of the warrant must be left prominently on the premises.

254.     Paragraph 7 requires a receipt to be given, if sought, for anything seized. It also provides for anything seized to be retained as long as is necessary. The person occupying the premises must be given a copy of anything that is seized if he asks for it and if this can be done without undue delay.

Matters exempt from inspection and seizure

255.     Paragraph 8 exempts from the powers conferred by a warrant information which is exempt from any of the Bill's provisions by virtue of clauses 21(1) or 22(1) (the exemptions relating to national security).

256.     Paragraph 9(1) prohibits the exercise of the power authorised by a warrant in respect of any communication between a professional legal adviser and his client in connection with the client's obligations, liabilities or rights under the Bill, or other specified communications relating to proceedings or possible proceedings under the Bill. These include proceedings before the Tribunal.

257.     Paragraph 9(2) makes clear that the prohibition in paragraph 9(1) also applies to copies or other records of such communications, and anything enclosed with or referred to in any such communication, if the communication is made in connection with the giving of such advice or in relation to such proceedings as are mentioned.

258.     Paragraph 9(3) provides that paragraph 9 does not apply to anything in the possession of any person other than the professional legal adviser or his client, or to anything held with the intention of furthering a criminal purpose.

259.     Paragraph 9(4) provides that references in paragraph 9 to the client of a professional legal adviser include references to any person who may be representing the client.

260.     Paragraph 10 deals with the situation in which material consists partly of matters covered by the warrant and partly of matters not covered by the warrant. In such a case, if the person executing the warrant requests him to do so, the occupier of the premises must provide a copy of so much of the material as is covered by the warrant.