Hang on everyone!
There is no DP exemption - repeat, no exemption - from subject
access on the grounds of confidentiality!
See section 27(5) of the DPA which explicitly overrides any common
law obligation of confidentiality. This states: "Except as provided
by this Part, the subject information provisions shall have effect
notwithstanding any enactment or rule of law prohibiting or
restricting the disclosure, or authorising the withholding, of
information."
There is a relevant provision but it applies to information which
relates to *an individual who is identifiable from that information*
or identifies an individual who has provided information about the
data subject [ss 7(4) and (5)].
Even where an identifiable individual is involved, disclosure can
still take place either with consent or if it is "reasonable in all
the circumstances" to comply without consent. The 'reasonableness'
test must take account of any obligation of confidentiality to the
individual but confidentiality is certainly not conclusive.
For example, if you were proposing to discipline someone on the
grounds of a confidential statement about what he was alleged to
have done, I don't think you can assume that it would be 'reasonable'
to discipline him while keeping the statement confidential. I would
think that would be very *unreasonable* in those circumstances.
But if the disciplinary proceedings themselves required that the
statement be disclosed to the individual then there may be more of a
case for arguing that it would not be "reasonable in all the
circumstances" to disclose it beforehand.
Maurice Frankel
Campaign for Freedom of Information
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