#3207 - Date Protection And Freedom Of Information

Intellectual Property Rights

Data Protection

Data Protection Scheme

Data Protection Act 1998
Protection of individual privacy! Relates to the handling of private information
2 Objectives:

a) Allow individuals access to information held about them

b) Protect information about individuals from being disclosed improperly

The date controller becomes responsible [i.e. he has a DUTY] for the data subject from the firms moment of dealing with any personal information that could identify the data subject as a living individual.
Personal Data = 2 limb test:

Is the information biographical in a significant sense?
Does the information have the individual as its focus, rather than other persons or matters.

Is the DPA applicable:

Data subject must be a living individual
There is data
The data is personal
Some processing is involved
At least one precondition for processing within Schedule 2 is met
The data is processed in accordance with all relevant data protection principles in Schedule 1

S.4(4) / Schedule 1: 8 Principles of Good Information Handling Practice

[Must be complied with by anyone processing personal information]

Fairly and lawfully processed (need at least 1 of 6 conditions from Schedule 2)
Processed for limited purposes
Adequate, relevant and not excessive
Accurate and up-to-date
Not kept longer than necessary
Processed in accordance with individual’s rights
Secure
Not transferred to countries outside EEA unless adequate protection

Schedule 2

Schedule 2 – 6 conditions for fair processing (must show 1):

individual has consented to processing
processing necessary for contract with individual
processing required under a legal obligation
processing necessary to protect vital interests of individual
processing necessary to carry out public functions
processing necessary to pursue legitimate interests of data controller/ third party

Issue of CONSENT: It will only allow data controller to use information for that particular purpose to which the individual has consented. Nothing else!

Freedom of Information

Freedom of Information Act 2000
Release of information from public bodies
Applies to information held by public authorities as defined in s3(1)
A person making a request is entitled to be told whether the authority holds the info, and to have it communicated to him (s1(1))
Public authorities must adhere to Central Publication Scheme which will explain things like the sorts of information held and how it may be obtained. The scheme promotes publication of disclosure by public bodies. There is a specific Publication scheme for each public body [e.g. one specific to type of info NHS holds]
S. 45 – guidance to public authorities on how to deal with requests for information
S.46 – guidance to public authorities on records management

Some information CANNOT be disclosed:

Qualified Exemptions

Public interest test must be applied so as to decide whether to provide or not

[I.E. IF information is in the public interest it can be disclosed]

Class-based qualified exemptions: cover all information in that class. Public authority has to consider if public interest outweighs non-disclosure

e.g. legal professional privilege (s42)

Prejudice-based qualified exemptions: only apply if (so need only apply the test if) disclosure of info would cause prejudice to that category of activity

e.g. the economy (s29)

Procedure for refusal

Challenges to refusal

Authority has Internal Appeal procedure
Information Commissioner next – reviews the decision. Issue a ‘Decision Notice’ [confirm or counter the original decision]
Enforcement Notice if authority still refuse to disclose
Court as a last procedure if all else fails – Authority are in Contempt of Court

How to request:
- Must be an individual – give name / address [cannot be anonymous]
- Request in writing
- Describe the information you want in full. No ambiguity or generalizations. Limit your request where possible. Public authority can refuse to disclose if too general.
- Public Authority must respond in 20 working days [no disclosure until fee is paid – if fee is necessary]
Charging
- Charge 25 per hour [discretionary – is the job demanding]
- Statutory limit Public Authority can charge = 450
- If over this limit – PA can refused to...

#3207 - Date Protection And Freedom Of Information - Commercial and IP