(This note is not part of the Order)
This Order provides for the partial exemption from the provisions of the Data Protection Act 1998, which confer rights on data subjects to gain access to data held about them, of certain data where the exercise of those rights would be likely to prejudice the carrying out of social work by causing serious harm to the physical or mental health or condition of the data subject or another person (article 3(1)). The Order does not apply to any data to which the Data Protection (Subject Access Modification) (Health) Order 2000 (S.I. 2000/413), the Data Protection (Subject Access Modification) (Education) Order 2000 (S.I. 2000/414) or any order made under section 38(1) of the Act applies (article 3(2)).
In the case of court reports in certain proceedings where information in the report may be withheld by the court, article 4 of, and paragraph 2 of the Schedule to, this Order provide a complete exemption from section 7 of the Act and also a complete exemption from the first data protection principle to the extent to which it requires compliance with paragraph 2 of Part II of Schedule 1 to the Act (which confers obligations on data controllers to give certain information to data subjects relating to data held about them). In all other cases, article 5(1) confers an exemption from section 7(1)(b) to (d) of the Act, leaving the right of the data subject to be informed by any data controller whether data about him are being processed by or on behalf of that data controller.
Article 7 modifies section 7 of the Act so that a data controller cannot refuse access on the grounds that the identity of a third party would be disclosed in cases where the third party is a relevant person (as defined), unless serious harm to that relevant person’s physical or mental health or condition is likely to be caused by giving access such that the exemption in article 5(1) applies.
A further exemption from section 7 of the Act is conferred by article 5(3) in certain circumstances where a third party is making the request for access on behalf of the data subject and the data subject does not wish that information to be disclosed to that third party.
By virtue of paragraph 1 of the Schedule to this Order, it principally applies to data processed by local authorities, in relation to their social services and education welfare functions, and health authorities to whom such data are passed and by probation committees and the National Society for the Prevention of Cruelty to Children. This Order also applies to data processed for similar purposes by the corresponding bodies in Northern Ireland. Data processed by government departments for certain purposes connected with social work and by officers such as guardians ad litem and (in Scotland) the Principal Reporter of the Scottish Children’s Reporter Administration are also within the scope of the Order. Provision is made enabling other voluntary organisations or other bodies to be added to the list of bodies whose data are subject to the provisions of the Order where the data are processed for purposes similar to the social services functions (or in Scotland social work functions) of local authorities.
In the case of social work authorities in Scotland who receive certain data from the Principal Reporter, article 6 requires such data controllers to obtain the Principal Reporter’s approval before responding to any section 7 request.
This Order contributes to the implementation of Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data.
A Regulatory Impact Assessment was prepared for the Data Protection Bill as it was then and the statutory instruments to be made under it, and was placed in the libraries of both Houses of Parliament. The Regulatory Impact Assessment is now available on the internet at www.homeoffice.gov.uk. Alternatively, copies can be obtained by post from the Home Office, LGDP Unit, 50 Queen Anne’s Gate, London SW1H 9AT.