House of Lords - Explanatory Note
Freedom Of Information Bill - continued          House of Lords

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Return of warrants

264.     Paragraph 11 requires warrants to be returned to the issuing court whether or not they have been executed. The warrant must contain an endorsement by the relevant person of the powers which have been exercised under it.

Offences

265.     Paragraph 12 makes it an offence for a person intentionally to obstruct another in the execution of a warrant, or to fail without reasonable excuse to give the person executing a warrant such assistance as he may reasonably require.

Vessels, vehicles etc

266.     Paragraph 13 defines "premises" for the purpose of the Schedule as including vessels, vehicles, aircraft or hovercraft. References to occupiers of premises include references to the people in charge of the vessels etc.

Scotland and Northern Ireland

267.     Paragraph 14 provides for the interpretation of the Schedule in Scotland according to the procedures and terminology which apply there.

268.     Paragraph 15 makes similar provision for Northern Ireland.

Schedule 4: Appeal Proceedings - Amendments of Schedule 6 to Data Protection Act 1998

Constitution of Tribunal in national security cases

269.     Paragraph 1 amends paragraph 2(1) of Schedule 6 to the Data Protection Act 1998 to enable the Lord Chancellor to designate, from the chairmen and deputy chairmen of the Tribunal, those who can hear appeals in national security cases under clause 59(1) or (4) of the Bill.

270.     Paragraph 2 amends paragraph 3 of Schedule 6 to the Data Protection Act 1998 to provide that in appeals in national security cases the Tribunal shall consist of three members designated under paragraph 2(1), of whom the Lord Chancellor is to designate one to preside.

Constitution of Tribunal in other cases

271.     Paragraph 3 amends paragraph 4 of Schedule 6 to the Data Protection Act 1998 to provide for the constitution of the Tribunal in other than national security cases to be similar to that for data protection, that is, it shall consist of a chairman or deputy chairman (who shall preside) and an equal number of members appointed respectively to represent the interests of applicants for information and public authorities under the Bill (see section 6(6) of the 1998 Act, as amended by paragraph 16 of Schedule 2 to the Freedom of Information Bill, and paragraph 4 of Schedule 6 to the 1998 Act, as amended by paragraph 3 of Schedule 4 to the Freedom of Information Bill).

Rules of procedure

272.     Paragraph 4 amends the rules of procedure for the Tribunal so that they extend to appeals under clauses 56(1) and (2) and 59(1) and (4) of the Freedom of Information Bill.

Schedule 5: Amendments of public records legislation

Part I: Amendments of Public Records Act 1958

Functions of the Advisory Council on Public Records

273.     Paragraph 1 inserts a new provision into the Public Records Act 1958 which extends the role of the Lord Chancellor's Advisory Council on Public Records to include the giving of advice on matters relating to the application of the Freedom of Information Bill to information contained in public records which are also historical records under Part IV of the Bill. Corresponding reference to Northern Ireland has been included.

Access to Public Records

274.     Paragraphs 2 and 3 amend the Public Records Act 1958 with the effect of preserving the duty of the Keeper of Public Records to arrange reasonable facilities for the inspection of records which are held in the Public Record Office (and other appointed places of deposit) and which are subject to disclosure under the provisions of the Bill, but otherwise to repeal the provisions of the 1958 Act relating to access to such records. The provision which had been made by section 5 of that Act had established a regime for access to and closure of records largely based on the discretion of the Lord Chancellor. That discretionary provision is superseded by the statutory regime for access which is established by clauses 1 and 13 of the Bill and which is subject to the exemptions in Part II of the Bill. The provision made by clauses 64 and 65 retains some of the 1958 Act's elements of consultation and consent as between the Public Record Office or Lord Chancellor on the one hand, and public authorities on the other, in the case of such disclosure of information as continues under the Bill's regime to be discretionary. Paragraph 5 makes provision for Northern Ireland corresponding to that made by paragraph 2(3).

Power to extend the meaning of 'public records'

275.     Paragraph 4 inserts a new paragraph 3A in Schedule 1 of the Public Records Act 1958. This enables further bodies to be added to the Table in paragraph 3 of that Schedule by Order in Council. Any new entry must relate to a body which is specified in Schedule 2 to the Parliamentary Commissioner Act or could be added to that Schedule. An Order in Council under this new power is subject to negative resolution procedure (unlike orders under the wider power in the existing paragraph 7, which are subject to affirmative resolution).

Schedule 6: Further amendments of Data Protection Act 1998

276.     Paragraph 1 makes a drafting amendment of subsection (3) of section 7 of the 1998 Act, so that the wording of that subsection is consistent with that of the equivalent provision in clause 1(3).

277.     Paragraph 2 inserts a new section 35A into the 1998 Act conferring exemptions from certain provisions of the 1998 Act where required to avoid infringing parliamentary privilege.

278.     Paragraph 3 inserts a new section 63A into the 1998 Act providing that the provisions of the 1998 Act shall apply to personal data processed by or on behalf of either House of Parliament, designating the data controllers for each House and providing an exemption from prosecution under the Act to the designated data controllers. Similar provision is unnecessary for the Scottish Parliament, Welsh Assembly and Northern Ireland Assembly as the Data Protection Act 1998 already applies to them.

279.     Paragraphs 4 and 5 amend Schedules 2 and 3 to the 1998 Act. Those Schedules set out conditions which apply to the processing of personal data and sensitive personal data respectively, and one of which must be met in order to comply with the first data protection principle. The amendments have the effect that processing necessary for the exercise of any functions of Parliament will satisfy the requirements of Schedule 2 and 3 to the 1998 Act.

280.     Paragraph 6 amends the reference in paragraph 10 of Schedule 7 to the 1998 Act to the Scottish equivalent of legal professional privilege.

281.     Paragraph 7 amends paragraph 2(1) of Schedule 14 to the 1998 Act to provide that the transitional exemption from notification for those data controllers already registered under the Data Protection Act 1984 at the time when Part III of the 1998 Act is brought into force is to extend until the normal date of expiry of their registered entry.

Schedule 7: Repeals

282.     This Schedule contains details of repeals.

FINANCIAL EFFECTS OF THE BILL

283.     The estimated cost to public funds of implementing the proposals in the Bill will fall within the range of £90 million to £125 million per year. This figure includes the cost of processing requests for information (including the costs to public authorities of the review and appeals process), the costs of making information available to the public under a scheme for the publication of information, the costs of training programmes within public authorities and costs borne centrally by the Home Office and the Information Commissioner and Tribunal. These costs will be spread across the public sector as a whole and will be absorbed within existing resources.

284.     The cost of setting up and running the Office of the Information Commissioner is estimated to be up to £6.5 million per year depending on the level of business. This cost will be met from within agreed Home Office Departmental Expenditure limits as agreed for the relevant period.

EFFECTS ON PUBLIC SERVICE MANPOWER

285.     Implementing the Bill will require diversion of up to ten Home Office staff from other duties for up to five years. There will be a need for an ongoing central unit in the Home Office to oversee the legislation.

286.     The Office of the Information Commissioner will be an expansion of the existing Office of the Data Protection Registrar. Up to 150 additional staff will be required to undertake the duties imposed by this Bill.

287.     The proposals in the Bill are not anticipated to have a significant impact on manpower levels elsewhere within the public sector.

REGULATORY IMPACT ASSESSMENT

288.     There are no regulatory implications for business arising directly from the Bill. Information held by public authorities about business will be exempt from disclosure under the Act if disclosure would, or would be likely to, prejudice their commercial interests.

289.     However, the Bill contains an order making power under which the Secretary of State may bring private sector bodies within its scope, if, and to the extent that, they are carrying out public functions or are performing services under contract with public authorities which relate to functions of those authorities. Before any such order is made, the Secretary of State will be required to consult the body in question and a Regulatory Impact Assessment will be made.

COMPLIANCE WITH EUROPEAN CONVENTION ON HUMAN RIGHTS

290.     Section 19 of the Human Rights Act 1998 requires the Minister in charge of a Bill in either House of Parliament to make a statement, before second reading, about the compatibility of the provisions of the Bill with the Convention rights (as defined by section 1 of that Act). Lord Falconer of Thoroton has made the following statement:

    In my view the provisions of the Freedom of Information Bill are compatible with the Convention rights.

ANNEX

Section 1 of the Data Protection Act 1998 showing the amendments effected by clause 67 of the Bill (printed in bold). This extract has no authoritative status.

Basic interpretative provisions.

1. - (1) In this Act, unless the context otherwise requires-

"data" means information which-

    (a) is being processed by means of equipment operating automatically in response to instructions given for that purpose,

    (b) is recorded with the intention that it should be processed by means of such equipment,

    (c) is recorded as part of a relevant filing system or with the intention that it should form part of a relevant filing system, or

    (d) does not fall within paragraph (a), (b) or (c) but forms part of an accessible record as defined by section 68, or

    (e) is recorded information held by a public authority and does not fall within any of paragraphs (a) to (d);

"data controller" means, subject to subsection (4), a person who (either alone or jointly or in common with other persons) determines the purposes for which and the manner in which any personal data are, or are to be, processed;

"data processor", in relation to personal data, means any person (other than an employee of the data controller) who processes the data on behalf of the data controller;

"data subject" means an individual who is the subject of personal data;

"personal data" means data which relate to a living individual who can be identified-

    (a) from those data, or

    (b) from those data and other information which is in the possession of, or is likely to come into the possession of, the data controller,

and includes any expression of opinion about the individual and any indication of the intentions of the data controller or any other person in respect of the individual;

"processing", in relation to information or data, means obtaining, recording or holding the information or data or carrying out any operation or set of operations on the information or data, including-

    (a) organisation, adaptation or alteration of the information or data,

    (b) retrieval, consultation or use of the information or data,

    (c) disclosure of the information or data by transmission, dissemination or otherwise making available, or

    (d) alignment, combination, blocking, erasure or destruction of the information or data;

"public authority" has the same meaning as in the Freedom of Information Act 2000;

"relevant filing system" means any set of information relating to individuals to the extent that, although the information is not processed by means of equipment operating automatically in response to instructions given for that purpose, the set is structured, either by reference to individuals or by reference to criteria relating to individuals, in such a way that specific information relating to a particular individual is readily accessible.

(2) In this Act, unless the context otherwise requires-

    (a) "obtaining" or "recording", in relation to personal data, includes obtaining or recording the information to be contained in the data, and

    (b) "using" or "disclosing", in relation to personal data, includes using or disclosing the information contained in the data.

(3) In determining for the purposes of this Act whether any information is recorded with the intention-

    (a) that it should be processed by means of equipment operating automatically in response to instructions given for that purpose, or

    (b) that it should form part of a relevant filing system,

it is immaterial that it is intended to be so processed or to form part of such a system only after being transferred to a country or territory outside the European Economic Area.

(4) Where personal data are processed only for purposes for which they are required by or under any enactment to be processed, the person on whom the obligation to process the data is imposed by or under that enactment is for the purposes of this Act the data controller.

(5) In paragraph (e) of the definition of "data" in subsection (1), the reference to information "held" by a public authority shall be construed in accordance with section 2(2) of the Freedom of Information Act 2000.

(6) Where section 6 of the Freedom of Information Act 2000 prevents Part I to V of that Act from applying to certain information held by a public authority, that information is not to be treated for the purposes of paragraph (e) of the definition of "data" in subsection (1) as held by a public authority.

 
 
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Prepared: 7 April 2000