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Data Protection Bill [H.L.]

3.28 p.m.

Report received.

Clause 1 [Basic interpretative provisions]:

Baroness Turner of Camden moved Amendment No. 1:

Page 2, line 9, at end insert--
("provided that this definition shall not be construed as applying to any operation performed only for the purpose of preparing the text of documents;").

The noble Baroness said: My Lords, as I believe my noble friend the Minister may know, I have for some years been a lay member of the Professional Standards Committee of the General Council of the Bar. I have been alerted to a problem about the Bill by one of my fellow members, a barrister, who tells me that the present Bill omits a provision which existed in the

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previous Data Protection Act. It is a provision the effect of which is that individuals using the computer as a word processor--virtually as a typewriter--do not have to register.

I gather the provision was originally intended to protect the position of those--and there must be many--who are in the process of making the transition from typewriters to computers. Letters to individuals processed in this way could therefore contain names, addresses and personal data. Of course, those data are capable of being stored if a computer is used, although very few people bother to do this. Under the new Bill, however, I gather that that provision is lost. Does that mean that someone using a computer in that way would be required to register? Is that omission an oversight or is there some particular purpose in it?

That has been brought to my attention by a barrister who uses a computer in that way. But it can affect a large number of people who are not barristers. Surely it is not intended to make people register who, a few years ago, would simply be using a typewriter. In my case, I have not yet made the transition to a computer but I use an electronic typewriter on which, if I wanted to, I could store text. If I switched to a computer with a much greater storage capacity, would that mean registration?

I must apologise to the Minister for not raising this issue in Committee. It is a matter which would have been better ventilated in Committee but, as he will know, people with concerns about legislation rarely tell you of them in time. Because I thought that my colleague had an issue which should be ventilated, I have tabled this amendment on Report. I beg to move.

Viscount Astor: My Lords, I have tabled Amendment No. 2, which is grouped with this amendment, because in Committee, there was some difference between the Government and the registrar as regards the definition of manual records. However, I notice that the noble Lord, Lord Williams of Mostyn, has tabled government Amendment No. 3, which I believe solves the problem. Therefore, it may be for the convenience of the House if I let the Minister speak first and thereafter I may or may not have to speak again.

Lord Williams of Mostyn: My Lords, I am obliged to the noble Viscount. His Amendment No. 4 is also within this group and I am entirely in his hands as to when he wishes to speak to that amendment, if at all.

I accept entirely what my noble friend said. This matter has come to light, as sometimes happens, during the course of the Bill. I do not reproach her in the slightest way.

My noble friend is quite right to say that the 1984 Act provides an exclusion from the definition of processing for operations performed only for text preparation which may include simple word processing. Therefore, this amendment seeks to replicate that exclusion--in other words, the 1984 exclusion--in this Bill.

In the White Paper of July last year, we said that the directive does not allow a continuation of that exclusion. The definition of "processing" in the directive is much

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wider than that in the Act and we are therefore obliged to follow it. There is no scope for us to make the definition in the Bill more restricted in the way my noble friend suggests.

We wonder whether there is a problem in practice. Text preparation in the form of word processing will be, to a considerable extent--possibly almost always--done as an adjustment to other processing which itself is likely to be caught by the Bill. Therefore, the application of the Bill to word processing is unlikely to bring any additional significant burdens.

However, I understand that my noble friend and others are concerned about additional burdens flowing from the notification requirements in the Bill. The same White Paper, to which I referred, said that the Government would exempt word processing from the notification arrangements if such an exemption proved necessary. I hope that on the basis of what I have said, my noble friend will feel able to withdraw his amendment.

I deal now with the linked amendments referred to by the noble Viscount. As he rightly said, this matter flows from the discussions that we had in Committee. The noble Viscount's amendment seeks to leave out the word "particular" and we seek to leave out the word "particular" and to include the word "specific".

These two amendments are quite small. They tend to go in different directions. We believe that the noble Viscount's amendment would widen the scope of the definition quite considerably and bring in more manual records. As I said in Committee, I do not believe that his amendment would be welcome to all those who currently hold large collections of manual records. On the other hand, our amendment makes it clear, and is intended to make clear, that the definition is one of limited scope.

This is a difficult area. We believe that the definition as it stands in the Bill gives full and proper effect to the directive's requirements. We believe that the directive applies to a limited category of manual records. Essentially, they are those which meet three criteria: first, that they form part of a structured set; secondly, that the structuring is done by reference to individuals or criteria relating to individuals--for example, a unique personal identification number; and, thirdly, that the structuring is done in such a way that particular information about individuals is readily available. It is that final criterion that is the subject of the two amendments.

Our intentions are clear. We do not wish the definition to apply to miscellaneous collections of paper about individuals, even if the collections are assembled in a file with the individual's name or other unique identifer on the front, if specific data about the individual cannot be readily extracted from that collection.

An example might be a personnel file with my name on the front. Let us assume that the file contains every piece of paper or other document about me which the personnel section has collected over the course of my career; and those papers are held in the file in date order, with no means of readily identifying specific

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information about me except by looking at every document. The Government's clear intention is that such files should not be caught. We want to catch only those records from which specific information about individuals can be readily extracted.

Let us take the case of a personnel file consisting only of information about my sickness record during my career. If that file has my name on the front and is part of a structured set, that file will be caught because the specific information about me, my sickness record, is readily available.

The Data Protection Registrar has said that she does not believe that the current definition of "relevant filing system", achieves the Government's intention of distinguishing between those two sorts of files. She suggests that an unindexed general personnel file is itself capable of counting as "particular information" about an individual. That information is particular only in the sense that it is limited to a rather unspecific category of personnel information. I can see that the word "particular" is ambiguous to the extent that it has the potential to yield that somewhat attenuated meaning. That is not what we intend.

We intend that "particular" information should mean "specific" information. That is what our amendment provides. The search for unambiguous language can sometimes be exhausting. I do not say that "specific" admits of no shades of meaning; it does. Information may be more or less specific in different degrees of detail. Very much may depend on context. But if there is any significant ambiguity in the introduction of "specific" into the definition of "relevant filing system", it is not capable of admitting into that definition the sort of general, unindexed personnel files that we have been talking about. All the information in those files may conceivably be thought "particular" but not "specific". "Specific" information is intended to mean and does mean distinct information within the file which can be distinguished from other information in the file and separately accessed. It means information of a distinct identity which sets it apart from the rest of the generality of personal information held. That is what our amendment intends to pin down. I hope that the noble Viscount will agree that our amendment is an improvement because we were looking for the same outcome.

We have paid careful attention to what the noble Viscount said and to what those in business and industry have expressed as concerns and we wish to address those concerns.

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