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Madam Speaker: The second half of the right hon. Gentleman's so-called point of order is certainly not a matter for me; it is a matter for argument and he has put his case on the record. Any Minister, even the Prime Minister, is expected to make a correction at the earliest opportunity if he has inadvertently misled the House, and he could do so by means of a written question if necessary. The right hon. Gentleman has made his point and placed on record his own opinion of the exchange.

Mr. Nick Hawkins (Surrey Heath): On a point of order, Madam Speaker. I think that concerns about the quality of the recording equipment in the House are a matter for you, so I want to raise as a point of order what appears in column 340 of Hansard of 29 March. I am sure that you will recall that during Prime Minister's questions on that day there was an interruption during a question asked by the hon. Member for North Cornwall (Mr. Tyler) from the Liberal Democrat Front Bench. Hansard records that there was an interruption when Labour Members in fact called out, "Boring." I am sure that you will recall, Madam Speaker, that your reply was, "Boring or not, I want to hear the hon. Gentleman", but in Hansard, that simply appears as:


Will you state whether the recording equipment should be checked?

Madam Speaker: I have always believed that whatever Members want to say in the House, providing that it is said in parliamentary terms, should be heard by the House. There is a difference between listening and hearing. Hon. Members do not have to listen, but Members who are speaking have to be heard, and I am sure that the House appreciates that distinction.

Mr. John Bercow (Buckingham): On a point of order, Madam Speaker.

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Madam Speaker: My day would not be complete without one from the hon. Gentleman.

Mr. Bercow: I am grateful to you, Madam Speaker, and I shall take that as a back-handed compliment. You said that an inadvertent error could be corrected by means of a written answer, and that was extremely helpful to the

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House. Will you clarify beyond doubt that in the event of such an inadvertent error by a Minister, including the Prime Minister, it is that Minister's responsibility to ensure that a written question is tabled allowing correction via an answer?

Madam Speaker: I refer the hon. Gentleman to the reply that I gave a moment ago.

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Orders of the Day

Freedom of Information Bill

As amended in the Standing Committee, further considered.

Clause 13

Discretionary disclosures

3.47 pm

Mr. Harry Cohen (Leyton and Wanstead): I beg to move amendment No. 107, in page 7, line 28, leave out from "(e)" to end of line 31 and insert "section 38(1)".

Madam Speaker: With this it will be convenient to discuss the following amendments: No. 105, in clause 38, page 21, leave out lines 24 to 30 and insert--


'(a) that the disclosure of information to a member of the public would be likely to result in a public authority breaching its obligation to respect the private life of individuals as set out in Article 8 of Schedule 1 to the Human Rights Act 1998, and'.

No. 106, in page 21, line 35, at end insert--


(3A) When determining whether the obligation specified in subsection 3(a) is breached a public authority shall, in particular, have regard to--
(a) whether the disclosure of information by the authority is likely to cause unwarranted damage or unwarranted distress to the private life of any individual who is identified by the information,
(b) whether the disclosure of information by the authority is explicitly prohibited by any enactment other than a disclosure which may be required by this Act,
(c) whether the disclosure of information by the authority is prohibited by the common law,
(d) whether the substantial public interest would be served by the determination that the information should not be disclosed,
(e) whether the information relates to other information of a similar nature which is readily accessible to the public, and
(f) whether the disclosure of information by the authority would be likely to result in a public authority being in breach of an obligation under the Human Rights Act 1998, other than as specified in Article 8 of Schedule 1 to that Act.
(3B) For the purpose of this section, any processing which is necessary to facilitate a disclosure of information by a public authority pursuant to a request under this Act shall be considered not to breach any data protection principle of the Data Protection Act 1998, and, for the avoidance of doubt, the data protection principles shall apply to any subsequent processing by any person to whom that information has been disclosed.'.

No. 108, in clause 69, page 35, line 21, at end insert--


'(3) Subsection (1) shall not have effect in respect of any personal data obtained by a public authority after 23rd October 2007.'.

No. 109, in schedule 6, page 64, line 36, at end insert--


'.In section 55 of that Act--
(a) there is inserted after subsection (1)--
"(1A) A data controller must not knowingly or recklessly obtain or disclose personal data in any way which causes a serious breach of any data protection principle.";
(b) in subsection (2) the words "Subsection (1) does" are replaced by "Subsection (1) or (1A) do"; and

5 Apr 2000 : Column 982


(c) in subsection (3) the words "or (1A)" are inserted after "subsection (1)".'.

Mr. Cohen: The amendments deal with personal data and the complex interface between the Data Protection Act 1998 and the Bill, which taxed the Standing Committee considerably. I share the views expressed in Committee that the interface is overtly complicated and might not work effectively, and my amendments aim to deal with that problem.

First, I shall explain my understanding of the interface, to set the scene. If a request for information under the Bill relates to personal data, the clause 38 provisions are triggered. If the requester is the data subject and is seeking access to information about himself or herself, the request is treated, under clause 38(1), as a subject access request under the Act. Unless there is an exemption under that Act, the data subject will obtain access to personal data about himself or herself. If an exemption in the Act applies, the personal data become exempt information under the Bill.

Attention then turns to the provisions in clause 13(1)(a)(i) and clause 13(2)(e), which together mean that the exempt information is not considered for a discretionary disclosure. In summary, if an exemption under the Data Protection Act applies to the access request, that is the end of the matter, barring intervention from the courts or the data protection tribunal, and no disclosure takes place.

A similar procedure applies if the requester is not the data subject but is, for example, a journalist seeking access to the background papers associated with the decision not to extradite General Pinochet to Spain. Under clause 38(2), the public authority would consider the first condition in clause 38(3)(a). If the request was deemed to lead to a contravention of any data protection principle, the personal data would become exempt information. The provisions in clause 13(1)(a)(i) and clause 13(2)(e) would also apply and the exempt information would not be considered for discretionary disclosure.

I shall not repeat the points that were made in Committee; suffice it to say that the data protection principles are complex and the conditions in schedules 2 and 3 to the Data Protection Act present the public authority with difficult interpretations which relate to any processing operation. However, schedules 2 and 3 deal with only half of the first principle. One must also consider the application of the remaining seven and a half data protection principles, in particular the fairness rules of the first principle, which may mean that data subjects must be informed about freedom of information access. That would no doubt trigger the application of the right contained in section 10 of the Data Protection Act to object to the processing--in this case the disclosure under freedom of information rules.

A more critical way of putting it is that the application of the data protection principles presents a public authority with many arguments not to satisfy a freedom of information request. The authority could argue that a principle would be breached if personal data were involved.

As I have already said, the question of discretionary disclosure does not arise. We should take note of the view of the then Data Protection Registrar as expressed to the Public Accounts Committee in its deliberations on the

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draft Freedom of Information Bill. I have no doubt that my hon. Friend the Minister accepts that view as correct and it has not been denied. The then Data Protection Registrar said:


    there is a danger that you, (the requester), will get a limited amount of third party information.

In Standing Committee, I noted that the Government refused amendments that sought to distinguish between an individual acting in a public capacity and an individual acting in a private capacity. Thus a request for access to personal data in relation to a public capacity is treated in exactly the same way as a request for access to personal data that is made in a private capacity. It follows that if the statement by the Data Protection Registrar is correct, there is considerable risk that a large volume of information could be exempt merely because it is personal data. If it is exempt information, access is likely to be withheld.

So what are personal data? Using the definitions in the Data Protection Act, personal data are any information which relates to a living individual--for example, decisions taken by officials and recorded as such. Other examples include minutes of meetings and papers discussed at those meetings, executive authority for action and attendees who discuss some public policy. As freedom of information requests for such documents will be from members of the public, it follows that the requests relate to personal data where the requester is not the data subject. It also follows that access to those personal data follows the clause 38 procedure, with the risks that I have already outlined, which could result in the information not being released.

It is my view that most freedom of information requests are requests for access to personal data: for example, someone might seek access to information on why my right hon. Friend the Secretary of State for Foreign and Commonwealth Affairs decided to allow jets to be sold to Indonesia. That might be deemed a request for access to personal data where my right hon. Friend is the data subject. That scenario is a simple example of why the current interface is fraught with difficulties in implementation. The loophole exists for information which should be in the public domain not to be released. That is against the spirit and the intention of freedom of information.

Let me provide a more likely example in which key papers relate to other living individuals. Let us suppose that there is a request for access to the minutes of a meeting between an IT supplier and a public authority to explore why a benefits computer system keeps failing. Such a request will involve access to personal data that relate to several people, including some who are public officials and others who are employees of the IT supplier. Clearly, word-processed documents that identify the authors of papers, the attenders at meetings or the opinions of identifiable contributors all constitute "personal data" as defined in section 1(1) of the Data Protection Act 1998.

I should like the Minister to clarify which condition in schedule 2 of the 1998 Act could legitimise the disclosure, in such a scenario, of all those personal data to a requester using the Freedom of Information Bill. I should also like to know what the fair processing implications are for private sector employees. If such details cannot be

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explained, it is easy to see how a public authority can claim a likely breach of the data protection principles, and thereby have the means to deny a freedom of information request.


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