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The Data Protection (Subject Access Modification) (Social Work) Order 2000

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Citation and commencement

1.  This Order may be cited as the Data Protection (Subject Access Modification) (Social Work) Order 2000 and shall come into force on 1st March 2000.

Interpretation

2.  (1)  In this Order—

“the Act” means the Data Protection Act 1998;

“compulsory school age” in paragraph 1(f) of the Schedule has the same meaning as in section 8 of the Education Act 1996(1), and in paragraph 1(g) of the Schedule has the same meaning as in Article 46 of the Education and Libraries (Northern Ireland) Order 1986(2);

“Health and Social Services Board” means a Health and Social Services Board established under Article 16 of the Health and Personal Social Services (Northern Ireland) Order 1972(3);

“Health and Social Services Trust” means a Health and Social Services Trust established under the Health and Personal Social Services (Northern Ireland) Order 1991(4);

“Principal Reporter” means the Principal Reporter appointed under section 127 of the Local Government etc. (Scotland) Act 1994(5) or any officer of the Scottish Children’s Reporter Administration to whom there is delegated under section 131(1) of that Act any function of the Principal Reporter;

“request” means a request made under section 7;

“school age” in paragraph 1(h) of the Schedule has the same meaning as in section 31 of the Education (Scotland) Act 1980(6);

“section 7” means section 7 of the Act; and

“social work authority” in article 6 means a local authority for the purposes of the Social Work (Scotland) Act 1968(7).

(2) Any reference in this Order to a local authority in relation to data processed or formerly processed by it includes a reference to the Council of the Isles of Scilly in relation to data processed or formerly processed by the Council in connection with any functions mentioned in paragraph 1(a)(ii) of the Schedule which are or have been conferred upon the Council by or under any enactment.

Personal data to which Order applies

3.  (1)  Subject to paragraph (2), this Order applies to personal data falling within any of the descriptions set out in paragraphs 1 and 2 of the Schedule.

(2) This Order does not apply—

(a)to any data consisting of information as to the physical or mental health or condition of the data subject to which the Data Protection (Subject Access Modification) (Health) Order 2000(8) or the Data Protection (Subject Access Modification) (Education) Order 2000(9) applies; or

(b)to any data which are exempted from section 7 by an order made under section 38(1) of the Act.

Exemption from subject information provisions

4.  Personal data to which this Order applies by virtue of paragraph 2 of the Schedule are exempt from the subject information provisions.

Exemption from section 7

5.  (1)  Personal data to which this Order applies by virtue of paragraph 1 of the Schedule are exempt from the obligations in section 7(1)(b) to (d) of the Act in any case to the extent to which the application of those provisions would be likely to prejudice the carrying out of social work by reason of the fact that serious harm to the physical or mental health or condition of the data subject or any other person would be likely to be caused.

(2) In paragraph (1) the “carrying out of social work” shall be construed as including—

(a)the exercise of any functions mentioned in paragraph 1(a)(i), (d), (f) to (j), (m) or (o) of the Schedule;

(b)the provision of any service mentioned in paragraph 1(b), (c) or (k) of the Schedule; and

(c)the exercise of the functions of any body mentioned in paragraph 1(e) of the Schedule or any person mentioned in paragraph 1(p) or (q) of the Schedule.

(3) Where any person falling within paragraph (4) is enabled by or under any enactment or rule of law to make a request on behalf of a data subject and has made such a request, personal data to which this Order applies are exempt from section 7 in any case to the extent to which the application of that section would disclose information—

(a)provided by the data subject in the expectation that it would not be disclosed to the person making the request;

(b)obtained as a result of any examination or investigation to which the data subject consented in the expectation that the information would not be so disclosed; or

(c)which the data subject has expressly indicated should not be so disclosed,

provided that sub-paragraphs (a) and (b) shall not prevent disclosure where the data subject has expressly indicated that he no longer has the expectation referred to therein.

(4) A person falls within this paragraph if—

(a)except in relation to Scotland, the data subject is a child, and that person has parental responsibility for that data subject;

(b)in relation to Scotland, the data subject is a person under the age of sixteen, and that person has parental responsibilities for that data subject; or

(c)the data subject is incapable of managing his own affairs and that person has been appointed by a court to manage those affairs.

Modification of section 7 relating to Principal Reporter

6.  Where in Scotland a data controller who is a social work authority receives a request relating to information constituting data to which this Order applies and which originated from or was supplied by the Principal Reporter acting in pursuance of his statutory duties, other than information which the data subject is entitled to receive from the Principal Reporter, section 7 shall be modified so that—

(a)the data controller shall, within fourteen days of the relevant day (within the meaning of section 7(10) of the Act), inform the Principal Reporter that a request has been made; and

(b)the data controller shall not communicate information to the data subject pursuant to that section unless the Principal Reporter has informed that data controller that, in his opinion, the exemption specified in article 5(1) does not apply with respect to the information.

Further modifications of section 7

7.  (1)  In relation to data to which this Order applies by virtue of paragraph 1 of the Schedule—

(a)section 7(4) shall have effect as if there were inserted after paragraph (b) of that subsection

or,

(c)the other individual is a relevant person;

(b)section 7(9) shall have effect as if—

(i)there was substituted—

(9) If a court is satisfied on the application of—

(a)any person who has made a request under the foregoing provisions of this section, or

(b)any person to whom serious harm to his physical or mental health or condition would be likely to be caused by compliance with any such request in contravention of those provisions,

that the data controller in question is about to comply with or has failed to comply with the request in contravention of those provisions, the court may order him not to comply or, as the case may be, to comply with the request.; and

(ii)the reference to a contravention of the foregoing provisions of that section included a reference to a contravention of the provisions contained in this Order.

(2) After section 7(11) of the Act insert—

(12) A person is a relevant person for the purposes of subsection (4)(c) if he—

(a)is a person referred to in paragraph 1(p) or (q) of the Schedule to the Data Protection (Subject Access Modification) (Social Work) Order 2000; or

(b)is or has been employed by any person or body referred to in paragraph 1 of that Schedule in connection with functions which are or have been exercised in relation to the data consisting of the information; or

(c)has provided for reward a service similar to a service provided in the exercise of any functions specified in paragraph 1(a)(i), (b), (c) or (d) of that Schedule,

and the information relates to him or he supplied the information in his official capacity or, as the case may be, in connection with the provision of that service..

Mike O'Brien

Parliamentary Under-Secretary of State

Home Office

17th February 2000

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