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DATA-PROTECTION  2006

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Subject:

Re: DPA interface with FOISA

From:

Peter Dinsdale <[log in to unmask]>

Reply-To:

[log in to unmask]

Date:

Wed, 4 Jan 2006 14:57:24 +0000

Content-Type:

text/plain

Parts/Attachments:

Parts/Attachments

text/plain (186 lines)

Paul,

Note that S70 of FOIA states that:
"Personal data falling within paragraph (e) of the definition of "data" in 
section 1(1) are exempt from - 
(a) the first, second, third, seventh and eighth data protection 
principles,
(b) the sixth data protection principle except so far as it relates to the 
rights conferred on data subjects by sections 7 and 14,
(c) sections 10 to 12,
(d) section 13, except so far as it relates to damage caused by a 
contravention of section 7 or of the fourth data protection principle and 
to any distress which is also suffered by reason of that contravention,
(e) Part III, and
(f) section 55."

So I wouldn't agree that all of the data protection principles now apply 
to all personal data held. Category (e) data has more limited coverage.

Regards,
Peter



Please respond to Paul Ticher <[log in to unmask]>
Sent by:        This list is for those interested in Data Protection 
issues <[log in to unmask]>
To:     [log in to unmask]
cc:      

Subject:        Re: [data-protection] DPA interface with FOISA

This is interesting, because in England, Wales and Northern Ireland the 
FoIA 
explicitly amends the Data Protection Act in respect of public 
authorities. 
It says:

68. - (1) Section 1 of the Data Protection Act 1998 (basic interpretative 
provisions) is amended in accordance with subsections (2) and (3).
(2) In subsection (1)-
(a) in the definition of "data", the word "or" at the end of paragraph (c) 

is omitted and after paragraph (d) there is inserted "or
    (e) is recorded information held by a public authority and does not 
fall 
within any of paragraphs (a) to (d);", and
(b) after the definition of "processing" there is inserted-
 ""public authority" has the same meaning as in the Freedom of Information 

Act 2000;".

The definition of public authority in the FoIA covers UK institutions and 
those in England, Wales and Northern Ireland but not, of course, Scotland.

I take this to mean that in England, Wales and Northern Ireland 
unstructured 
personal data held by a public authority is entirely within the DPA and 
entirely outside the FoIA, by virtue of the exemption from access to 
personal data included in the FoIA, which says:

40. - (1) Any information to which a request for information relates is 
exempt information if it constitutes personal data of which the applicant 
is 
the data subject.

and then goes on to exempt personal data about other individuals subject 
to 
some complicated exceptions which I can't understand this soon after 
coming 
back to work after the break.

Because of the amendment which creates category (e) of data, the FoIA has 
the effect of extending - by my reckoning - all the Data Protection 
Principles and the right of subject access, among other rights, to all 
personal information held by a public authority in England, Wales or 
Northern Ireland.  Durant is irrelevant.

What I don't understand is how the situation in Scotland could be 
significantly different.


Paul Ticher
0116 273 8191
22 Stoughton Drive North, Leicester LE5 5UB

I hereby require any recipient of this message not to use my personal data
for direct marketing purposes.


----- Original Message ----- 
From: "Graeme Hawley" <[log in to unmask]>
To: <[log in to unmask]>
Sent: Wednesday, January 04, 2006 2:15 PM
Subject: DPA interface with FOISA


Hi there,

I suspect that this is old ground, but in trying to fathom out the Durant
thing in my mind, I came across this advice from the Scottish Executive
about structured / unstructured data:

"16.2.3 New Category of Data

At present the DPA only covers personal data in computerised format and in
some limited types of manual records. It will be extended for public
authorities subject to the FOISA to cover a new category of data. The new
category is "recorded information held by a public authority" which does
not fall within any of the other categories. This recorded information is
broken down into two types:

Structured - this is information structured by reference to individuals or
criteria relating to individuals but that does not fall within a relevant
filing system (key word Module 15) (i.e. specific information on
individuals is not readily accessible).
Unstructured - this is all other data and may include notebooks, files not
structured by reference to individuals, papers etc.
The right of access will be extended to cover both types of this new
category of information. The result will be that ALL recorded information
about individuals held by a public authority subject to the FOISA
potentially will be covered by the DPA for the purposes of access by the
data subject and correction." (From FOISA Open Learning Workbook, Module 
16)

The thing is, although ALL personal data is covered by FOISA, in the event
of a request for personal data it is likely to be exempt or to be treated
under the DPA.  Which seems to have a narrower definition of unstructured
personal data if the latest on Durant is anything to go by.  So, what is
the point of having a wider definition in the FOISA guidance??

Then... I think 'The UK verdict on Durant may still be overturned by the
EU, so should I operate under a broader definition of personal data on the
assumption that this will be the long term outcome?'

And besides - by aiming to be compliant with a wider definition, it
hopefully increases the chances of complying fully with the minimum.

Any thoughts on my thoughts, or the Scottish Executive guidance, anyone?

Happy New Year
Graeme

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