Data Protection Act 1998 (c. 29)

(The document as of February, 2008)

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18 For the purposes of this Part of this Schedule personal data are not to be treated as processed otherwise than for the purpose of historical research merely because the data are disclosed--

(a) to any person, for the purpose of historical research only,

(b) to the data subject or a person acting on his behalf,

(d) in circumstances in which the person making the disclosure has reasonable grounds for believing that the disclosure falls within paragraph (a), (b) or (c).

Part V Exemption from section 22

19 Processing which was already under way immediately before 24th October 1998 is not assessable processing for the purposes of section 22.

Section 50.

SCHEDULE 9 Powers of entry and inspection

Issue of warrants

1 (1) If a circuit judge is satisfied by information on oath supplied by the Commissioner that there are reasonable grounds for suspecting--

(a) that a data controller has contravened or is contravening any of the data protection principles, or

(b) that an offence under this Act has been or is being committed,

and that evidence of the contravention or of the commission of the offence is to be found on any premises specified in the information, he may, subject to sub-paragraph (2) and paragraph 2, grant a warrant to the Commissioner.

(2) A judge shall not issue a warrant under this Schedule in respect of any personal data processed for the special purposes unless a determination by the Commissioner under section 45 with respect to those data has taken effect.

(3) A warrant issued under sub-paragraph (1) shall authorise the Commissioner or any of his officers or staff at any time within seven days of the date of the warrant to enter the premises, to search them, to inspect, examine, operate and test any equipment found there which is used or intended to be used for the processing of personal data and to inspect and seize any documents or other material found there which may be such evidence as is mentioned in that sub-paragraph.

2 (1) A judge shall not issue a warrant under this Schedule unless he is satisfied--

(a) that the Commissioner has given seven days' notice in writing to the occupier of the premises in question demanding access to the premises, and

(b) that either--

(i) access was demanded at a reasonable hour and was unreasonably refused, or

(ii) although entry to the premises was granted, the occupier unreasonably refused to comply with a request by the Commissioner or any of the Commissioner's officers or staff to permit the Commissioner or the officer or member of staff to do any of the things referred to in paragraph 1(3), and

(c) that the occupier, has, after the refusal, been notified by the Commissioner of the application for the warrant and has had an opportunity of being heard by the judge on the question whether or not it should be issued.

(2) Sub-paragraph (1) shall not apply if the judge is satisfied that the case is one of urgency or that compliance with those provisions would defeat the object of the entry.

3 A judge who issues a warrant under this Schedule shall also issue two copies of it and certify them clearly as copies.

Execution of warrants

4 A person executing a warrant issued under this Schedule may use such reasonable force as may be necessary.

5 A warrant issued under this Schedule shall be executed at a reasonable hour unless it appears to the person executing it that there are grounds for suspecting that the evidence in question would not be found if it were so executed.

6 If the person who occupies the premises in respect of which a warrant is issued under this Schedule is present when the warrant is executed, he shall be shown the warrant and supplied with a copy of it; and if that person is not present a copy of the warrant shall be left in a prominent place on the premises.

7 (1) A person seizing anything in pursuance of a warrant under this Schedule shall give a receipt for it if asked to do so.

(2) Anything so seized may be retained for so long as is necessary in all the circumstances but the person in occupation of the premises in question shall be given a copy of anything that is seized if he so requests and the person executing the warrant considers that it can be done without undue delay.

Matters exempt from inspection and seizure

8 The powers of inspection and seizure conferred by a warrant issued under this Schedule shall not be exercisable in respect of personal data which by virtue of section 28 are exempt from any of the provisions of this Act.

9 (1) Subject to the provisions of this paragraph, the powers of inspection and seizure conferred by a warrant issued under this Schedule shall not be exercisable in respect of--

(a) any communication between a professional legal adviser and his client in connection with the giving of legal advice to the client with respect to his obligations, liabilities or rights under this Act, or

(b) any communication between a professional legal adviser and his client, or between such an adviser or his client and any other person, made in connection with or in contemplation of proceedings under or arising out of this Act (including proceedings before the Tribunal) and for the purposes of such proceedings.

(2) Sub-paragraph (1) applies also to--

(a) any copy or other record of any such communication as is there mentioned, and

(b) any document or article enclosed with or referred to in any such communication if made in connection with the giving of any advice or, as the case may be, in connection with or in contemplation of and for the purposes of such proceedings as are there mentioned.

(3) This paragraph 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.

(4) In this paragraph references to the client of a professional legal adviser include references to any person representing such a client.

10 If the person in occupation of any premises in respect of which a warrant is issued under this Schedule objects to the inspection or seizure under the warrant of any material on the grounds that it consists partly of matters in respect of which those powers are not exercisable, he shall, if the person executing the warrant so requests, furnish that person with a copy of so much of the material as is not exempt from those powers.

Return of warrants

11 A warrant issued under this Schedule shall be returned to the court from which it was issued--

(a) after being executed, or

(b) if not executed within the time authorised for its execution;

and the person by whom any such warrant is executed shall make an endorsement on it stating what powers have been exercised by him under the warrant.

Offences

12 Any person who--

(a) intentionally obstructs a person in the execution of a warrant issued under this Schedule, or

(b) fails without reasonable excuse to give any person executing such a warrant such assistance as he may reasonably require for the execution of the warrant,

is guilty of an offence.

Vessels, vehicles etc.

13 In this Schedule "premises" includes any vessel, vehicle, aircraft or hovercraft, and references to the occupier of any premises include references to the person in charge of any vessel, vehicle, aircraft or hovercraft.

Scotland and Northern Ireland

14 In the application of this Schedule to Scotland--

(a) for any reference to a circuit judge there is substituted a reference to the sheriff,

(b) for any reference to information on oath there is substituted a reference to evidence on oath, and

(c) for the reference to the court from which the warrant was issued there is substituted a reference to the sheriff clerk.

15 In the application of this Schedule to Northern Ireland--

(a) for any reference to a circuit judge there is substituted a reference to a county court judge, and

(b) for any reference to information on oath there is substituted a reference to a complaint on oath.

Section 53(6).

SCHEDULE 10 Further provisions relating to assistance under section 53

1 In this Schedule "applicant" and "proceedings" have the same meaning as in section 53.

2 The assistance provided under section 53 may include the making of arrangements for, or for the Commissioner to bear the costs of--

(a) the giving of advice or assistance by a solicitor or counsel, and

(b) the representation of the applicant, or the provision to him of such assistance as is usually given by a solicitor or counsel--

(i) in steps preliminary or incidental to the proceedings, or

(ii) in arriving at or giving effect to a compromise to avoid or bring an end to the proceedings.

3 Where assistance is provided with respect to the conduct of proceedings--

(a) it shall include an agreement by the Commissioner to indemnify the applicant (subject only to any exceptions specified in the notification) in respect of any liability to pay costs or expenses arising by virtue of any judgment or order of the court in the proceedings,

(b) it may include an agreement by the Commissioner to indemnify the applicant in respect of any liability to pay costs or expenses arising by virtue of any compromise or settlement arrived at in order to avoid the proceedings or bring the proceedings to an end, and

(c) it may include an agreement by the Commissioner to indemnify the applicant in respect of any liability to pay damages pursuant to an undertaking given on the grant of interlocutory relief (in Scotland, an interim order) to the applicant.

4 Where the Commissioner provides assistance in relation to any proceedings, he shall do so on such terms, or make such other arrangements, as will secure that a person against whom the proceedings have been or are commenced is informed that assistance has been or is being provided by the Commissioner in relation to them.

5 In England and Wales or Northern Ireland, the recovery of expenses incurred by the Commissioner in providing an applicant with assistance (as taxed or assessed in such manner as may be prescribed by rules of court) shall constitute a first charge for the benefit of the Commissioner--

(a) on any costs which, by virtue of any judgment or order of the court, are payable to the applicant by any other person in respect of the matter in connection with which the assistance is provided, and

(b) on any sum payable to the applicant under a compromise or settlement arrived at in connection with that matter to avoid or bring to an end any proceedings.

6 In Scotland, the recovery of such expenses (as taxed or assessed in such manner as may be prescribed by rules of court) shall be paid to the Commissioner, in priority to other debts--

(a) out of any expenses which, by virtue of any judgment or order of the court, are payable to the applicant by any other person in respect of the matter in connection with which the assistance is provided, and

(b) out of any sum payable to the applicant under a compromise or settlement arrived at in connection with that matter to avoid or bring to an end any proceedings.

Section 68(1)(6).

SCHEDULE 11 Educational records

Meaning of "educational record"

1 For the purposes of section 68 "educational record" means any record to which paragraph 2, 5 or 7 applies.

England and Wales

2 This paragraph applies to any record of information which--

(a) is processed by or on behalf of the governing body of, or a teacher at, any school in England and Wales specified in paragraph 3,

(b) relates to any person who is or has been a pupil at the school, and

other than information which is processed by a teacher solely for the teacher's own use.

3 The schools referred to in paragraph 2(a) are--

(a) a school maintained by a local education authority, and

(b) a special school, as defined by section 6(2) of the [1996 c. 56.] Education Act 1996, which is not so maintained.

4 The persons referred to in paragraph 2(c) are--

(a) an employee of the local education authority which maintains the school,

(b) in the case of--

(i) a voluntary aided, foundation or foundation special school (within the meaning of the School Standards and Framework Act 1998), or

(ii) a special school which is not maintained by a local eduction authority,

a teacher or other employee at the school (including an educational psychologist engaged by the governing body under a contract for services),

(d) a parent, as defined by section 576(1) of the Education Act 1996, of that pupil.

Scotland

5 This paragraph applies to any record of information which is processed--

(a) by an education authority in Scotland, and

(b) for the purpose of the relevant function of the authority,

other than information which is processed by a teacher solely for the teacher's own use.

6 For the purposes of paragraph 5--

(a) "education authority" means an education authority within the meaning of the [1980 c. 44.] Education (Scotland) Act 1980 ("the 1980 Act") or, in relation to a self-governing school, the board of management within the meaning of the [1989 c. 39.] Self-Governing Schools etc. (Scotland) Act 1989 ("the 1989 Act"),

(b) "the relevant function" means, in relation to each of those authorities, their function under section 1 of the 1980 Act and section 7(1) of the 1989 Act, and

(c) information processed by an education authority is processed for the purpose of the relevant function of the authority if the processing relates to the discharge of that function in respect of a person--

(i) who is or has been a pupil in a school provided by the authority, or

(ii) who receives, or has received, further education (within the meaning of the 1980 Act) so provided.

Northern Ireland

7 (1) This paragraph applies to any record of information which--

(a) is processed by or on behalf of the Board of Governors of, or a teacher at, any grant-aided school in Northern Ireland,

(b) relates to any person who is or has been a pupil at the school, and

other than information which is processed by a teacher solely for the teacher's own use.

(2) In sub-paragraph (1) "grant-aided school" has the same meaning as in the [S.I. 1986/594 (N.I.3).] Education and Libraries (Northern Ireland) Order 1986.

8 The persons referred to in paragraph 7(1) are--

(a) a teacher at the school,

(b) an employee of an education and library board, other than such a teacher,

(d) a parent (as defined by Article 2(2) of the Education and Libraries (Northern Ireland) Order 1986) of that pupil.

England and Wales: transitory provisions

9 (1) Until the appointed day within the meaning of section 20 of the School Standards and Framework Act 1998, this Schedule shall have effect subject to the following modifications.

(2) Paragraph 3 shall have effect as if for paragraph (b) and the "and" immediately preceding it there were substituted--

" (aa) a grant-maintained school, as defined by section 183(1) of the Education Act 1996,

(ab) a grant-maintained special school, as defined by section 337(4) of that Act, and

(b) a special school, as defined by section 6(2) of that Act, which is neither a maintained special school, as defined by section 337(3) of that Act, nor a grant-maintained special school. "

(3) Paragraph 4(b)(i) shall have effect as if for the words from "foundation", in the first place where it occurs, to "1998)" there were substituted "or grant-maintained school".

Section 68(1)(c).

SCHEDULE 12 Accessible public records

Meaning of "accessible public record"

1 For the purposes of section 68 "accessible public record" means any record which is kept by an authority specified--

(a) as respects England and Wales, in the Table in paragraph 2,

(b) as respects Scotland, in the Table in paragraph 4, or

and is a record of information of a description specified in that Table in relation to that authority.

Housing and social services records: England and Wales

2 The following is the Table referred to in paragraph 1(a).

TABLE OF AUTHORITIES AND INFORMATION

The authorities	The accessible information
Housing Act local authority.	Information held for the purpose of any of the authority's tenancies.
Local social services authority.	Information held for any purpose of the authority's social services functions.

3 (1) The following provisions apply for the interpretation of the Table in paragraph 2.

(2) Any authority which, by virtue of section 4(e) of the [1985 c. 68.] Housing Act 1985, is a local authority for the purpose of any provision of that Act is a "Housing Act local authority" for the purposes of this Schedule, and so is any housing action trust established under Part III of the [1988 c. 50.] Housing Act 1988.

(3) Information contained in records kept by a Housing Act local authority is "held for the purpose of any of the authority's tenancies" if it is held for any purpose of the relationship of landlord and tenant of a dwelling which subsists, has subsisted or may subsist between the authority and any individual who is, has been or, as the case may be, has applied to be, a tenant of the authority.

(4) Any authority which, by virtue of section 1 or 12 of the [1970 c. 42.] Local Authority Social Services Act 1970, is or is treated as a local authority for the purposes of that Act is a "local social services authority" for the purposes of this Schedule; and information contained in records kept by such an authority is "held for any purpose of the authority's social services functions" if it is held for the purpose of any past, current or proposed exercise of such a function in any case.

(5) Any expression used in paragraph 2 or this paragraph and in Part II of the Housing Act 1985 or the Local Authority Social Services Act 1970 has the same meaning as in that Act.

Housing and social services records: Scotland

4 The following is the Table referred to in paragraph 1(b).

TABLE OF AUTHORITIES AND INFORMATION

The authorities	The accessible information
Local authority. Scottish Homes.	Information held for the purpose of any of the body's tenancies.
Social work authority.	Information held for any purpose of the authority's functions under the Social Work (Scotland) Act 1968 and the enactments referred to in section 5(1B) of that Act.

5 (1) The following provisions apply for the interpretation of the Table in paragraph 4.

(2) "Local authority" means--

(a) a council constituted under section 2 of the [1994 c. 39.] Local Government etc. (Scotland) Act 1994,

(b) a joint board or joint committee of two or more of those councils, or

(3) Information contained in records kept by a local authority or Scottish Homes is held for the purpose of any of their tenancies if it is held for any purpose of the relationship of landlord and tenant of a dwelling-house which subsists, has subsisted or may subsist between the authority or, as the case may be, Scottish Homes and any individual who is, has been or, as the case may be, has applied to be a tenant of theirs.

(4) "Social work authority" means a local authority for the purposes of the [1968 c. 49.] Social Work (Scotland) Act 1968; and information contained in records kept by such an authority is held for any purpose of their functions if it is held for the purpose of any past, current or proposed exercise of such a function in any case.

Housing and social services records: Northern Ireland

6 The following is the Table referred to in paragraph 1(c).

TABLE OF AUTHORITIES AND INFORMATION

The authorities

The accessible information

The Northern Ireland Housing Executive.

Information held for the purpose of any of the Executive's tenancies.

A Health and Social Services Board.

Information held for the purpose of any past, current or proposed exercise by the Board of any function exercisable, by virtue of directions under Article 17(1) of the Health and Personal Social Services (Northern Ireland) Order 1972, by the Board on behalf of the Department of Health and Social Services with respect to the administration of personal social services under--

(a)

the Children and Young Persons Act (Northern Ireland) 1968;

(b)

the Health and Personal Social Services (Northern Ireland) Order 1972;

(c)

Article 47 of the Matrimonial Causes (Northern Ireland) Order 1978;

(d)

Article 11 of the Domestic Proceedings (Northern Ireland) Order 1980;

(e)

the Adoption (Northern Ireland) Order 1987; or

(f)

the Children (Northern Ireland) Order 1995.

An HSS trust

Information held for the purpose of any past, current or proposed exercise by the trust of any function exercisable, by virtue of an authorisation under Article 3(1) of the Health and Personal Social Services (Northern Ireland) Order 1994, by the trust on behalf of a Health and Social Services Board with respect to the administration of personal social services under any statutory provision mentioned in the last preceding entry.

7 (1) This paragraph applies for the interpretation of the Table in paragraph 6.

(2) Information contained in records kept by the Northern Ireland Housing Executive is "held for the purpose of any of the Executive's tenancies" if it is held for any purpose of the relationship of landlord and tenant of a dwelling which subsists, has subsisted or may subsist between the Executive and any individual who is, has been or, as the case may be, has applied to be, a tenant of the Executive.

Section 72.

SCHEDULE 13 Modifications of Act having effect before 24th October 2007

1 After section 12 there is inserted--

" 12A Rights of data subjects in relation to exempt manual data

(1) A data subject is entitled at any time by notice in writing--

(a) to require the data controller to rectify, block, erase or destroy exempt manual data which are inaccurate or incomplete, or

(b) to require the data controller to cease holding exempt manual data in a way incompatible with the legitimate purposes pursued by the data controller.

(2) A notice under subsection (1)(a) or (b) must state the data subject's reasons for believing that the data are inaccurate or incomplete or, as the case may be, his reasons for believing that they are held in a way incompatible with the legitimate purposes pursued by the data controller.

(3) If the court is satisfied, on the application of any person who has given a notice under subsection (1) which appears to the court to be justified (or to be justified to any extent) that the data controller in question has failed to comply with the notice, the court may order him to take such steps for complying with the notice (or for complying with it to that extent) as the court thinks fit.

(4) In this section "exempt manual data" means--

(a) in relation to the first transitional period, as defined by paragraph 1(2) of Schedule 8, data to which paragraph 3 or 4 of that Schedule applies, and

(b) in relation to the second transitional period, as so defined, data to which paragraph 14 of that Schedule applies.

(5) For the purposes of this section personal data are incomplete if, and only if, the data, although not inaccurate, are such that their incompleteness would constitute a contravention of the third or fourth data protection principles, if those principles applied to the data. "

2 In section 32--

(a) in subsection (2) after "section 12" there is inserted--

" (dd) section 12A, " , and

(b) in subsection (4) after "12(8)" there is inserted ", 12A(3)".

3 In section 34 for "section 14(1) to (3)" there is substituted "sections 12A and 14(1) to (3)."

4 In section 53(1) after "12(8)" there is inserted ", 12A(3)".

5 In paragraph 8 of Part II of Schedule 1, the word "or" at the end of paragraph (c) is omitted and after paragraph (d) there is inserted " or

(e) he contravenes section 12A by failing to comply with a notice given under subsection (1) of that section to the extent that the notice is justified. "

Section 73.

SCHEDULE 14 Transitional provisions and savings

Interpretation

1 In this Schedule--

"the 1984 Act" means the [1984 c. 35.] Data Protection Act 1984;
"the old principles" means the data protection principles within the meaning of the 1984 Act;
"the new principles" means the data protection principles within the meaning of this Act.

Effect of registration under Part II of 1984 Act

2 (1) Subject to sub-paragraphs (4) and (5) any person who, immediately before the commencement of Part III of this Act--

(a) is registered as a data user under Part II of the 1984 Act, or

(b) is treated by virtue of section 7(6) of the 1984 Act as so registered,

is exempt from section 17(1) of this Act until the end of the registration period or, if earlier, 24th October 2001.

(2) In sub-paragraph (1) "the registration period", in relation to a person, means--

(a) where there is a single entry in respect of that person as a data user, the period at the end of which, if section 8 of the 1984 Act had remained in force, that entry would have fallen to be removed unless renewed, and

(b) where there are two or more entries in respect of that person as a data user, the period at the end of which, if that section had remained in force, the last of those entries to expire would have fallen to be removed unless renewed.

(3) Any application for registration as a data user under Part II of the 1984 Act which is received by the Commissioner before the commencement of Part III of this Act (including any appeal against a refusal of registration) shall be determined in accordance with the old principles and the provisions of the 1984 Act.

(4) If a person falling within paragraph (b) of sub-paragraph (1) receives a notification under section 7(1) of the 1984 Act of the refusal of his application, sub-paragraph (1) shall cease to apply to him--

(a) if no appeal is brought, at the end of the period within which an appeal can be brought against the refusal, or

(b) on the withdrawal or dismissal of the appeal.

(5) If a data controller gives a notification under section 18(1) at a time when he is exempt from section 17(1) by virtue of sub-paragraph (1), he shall cease to be so exempt.

(6) The Commissioner shall include in the register maintained under section 19 an entry in respect of each person who is exempt from section 17(1) by virtue of sub-paragraph (1); and each entry shall consist of the particulars which, immediately before the commencement of Part III of this Act, were included (or treated as included) in respect of that person in the register maintained under section 4 of the 1984 Act.

(7) Notification regulations under Part III of this Act may make provision modifying the duty referred to in section 20(1) in its application to any person in respect of whom an entry in the register maintained under section 19 has been made under sub-paragraph (6).

(8) Notification regulations under Part III of this Act may make further transitional provision in connection with the substitution of Part III of this Act for Part II of the 1984 Act (registration), including provision modifying the application of provisions of Part III in transitional cases.

Rights of data subjects

3 (1) The repeal of section 21 of the 1984 Act (right of access to personal data) does not affect the application of that section in any case in which the request (together with the information referred to in paragraph (a) of subsection (4) of that section and, in a case where it is required, the consent referred to in paragraph (b) of that subsection) was received before the day on which the repeal comes into force.

(2) Sub-paragraph (1) does not apply where the request is made by reference to this Act.

(3) Any fee paid for the purposes of section 21 of the 1984 Act before the commencement of section 7 in a case not falling within sub-paragraph (1) shall be taken to have been paid for the purposes of section 7.

4 The repeal of section 22 of the 1984 Act (compensation for inaccuracy) and the repeal of section 23 of that Act (compensation for loss or unauthorised disclosure) do not affect the application of those sections in relation to damage or distress suffered at any time by reason of anything done or omitted to be done before the commencement of the repeals.

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