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When is personal information subject to privacy law?

A case is set for the UK's Court of Appeal before the summer that will determine when manual files which contain personal information possess a structure under which they become subject to the UK's Data Protection Act 1998.24 Mar 2003

The Appeal will also clarify the circumstances when a Judge is entitled to use discretion not to order the disclosure of personal data to the individual concerned when the right of access to personal data is exercised, and there is no applicable exemption which the organisation holding the personal file has applied, yet the organisation refuses to provide access.

The background to the case concerns a Mr M. J. Durant who wanted access to personal information held by the Financial Services Authority (FSA) in relation to an investigation which involved Barclays Bank and in which Mr. Durant claimed to be a victim of fraud. Mr. Durant wanted to access the FSA files to see whether they contain information concerning the alleged fraud. The FSA argued that the information, although personal, was not subject to the right of access.

The Judge at the lower Court agreed, and refused Mr Durant access on the grounds that the files, although containing personal details about Mr Durant, were not personal data caught be the Act. For example, the Judge said that:

"It is not a question of whether the (personal) information could be obtained or even whether the information could be obtained easily. The question that I must pose is whether it (the file) is structured in such a way that specific information relating to a particular individual is readily accessible".

Additionally, the Judge claimed that even if the personal information were personal data, he had discretion not to order disclosure to Mr. Durant. He said that if this were the case:

"I would still not have exercised my discretion in favour of making an order for compliance, because ... I cannot see that the information could be of any practical value to the appellant and that ....the purpose of the legislation it seems to me is to ensure that records of an inaccurate nature are not kept about an individual".

Dr Chris Pounder of Masons, the law firm behind OUT-LAW.COM and Editor of Data Protection & Privacy Practice said:

"There is a lot of confusion as to when manual files are subject to data protection legislation, and the Court of Appeal will be invited to clarify the position - this will be helpful for most organisations as many are still dependent on manual files to store personal details and correspondence which concern services delivered to a particular individual".

Dr. Pounder continued:

"In addition, the Court of Appeal is in a position to define the discretion of the courts not to enforce the right of access. At the lower Court the Judge interpreted the discretion very widely, and many would disagree with the Judge's conclusion. For example, an organisation might hold excessive personal data which were wholly accurate. In such a case, a claim that the purpose of the legislation is to ensure that records are inaccurate or not seems to be wide of the mark".

The FSA is a public authority as defined by the Freedom of Information Act 2001. As such, it will have to grant access to unstructured personal information in manual files in early 2005.

To find out more about Masons' publication, Data Protection & Privacy Practice and download a free sample copy, see our Data Protection, Freedom of Information and Human Rights Acts Services.

Footnote: Dr Chris Pounder was a consultant with Pinsent Masons until September 2008. He now runs a new training business, Amberhawk.