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GAZETTE
SEPTEMBER 1992
Data Protection Act, 1988 -
Does it apply to Solicitors?
The Data Protection Act came into
operation in April, 1989. The Data
Protection Commissioner maintains
that the Act applies to the profession
and has approached a number of
firms seeking information. He has
requested that his views on the Act
be brought to the attention of
members; and they are reproduced
below.
The Society does not accept the
Commissioner's views. The opinion
of counsel has been obtained and
the papers for a proposed High
Court declaratory action have been
prepared. However, discussions with
the Commissioner are continuing.
Would any member of the profession
who has been approached by the
Commissioner please contact the
Secretary of the Professional
Purposes Committee,
Linda Kirwan,
at the Law Society.
John B. Harte,
Chairman,
Professional Purposes Committee.
The Application of the Data
Protection Act to the Solicitors
Profession
by
Donal C. Linehan
Data Protection Commissioner
The Act is designed to control the
use of personal information held on
computer about individuals
(personal
data),
irrespective of the kind of
computer on which it is held, or of
the persons or bodies who may hold
it.
The obligations of the Act apply
therefore, to
every person
w h o
controls the contents and use of
personal data, i.e. every
data
controller,
whether that person is a
department of State, a corporation
or a member of a profession.
If such a person holds sensitive data
of the kind mentioned in Section
16(1), then the additional obligation
to register applies.
Restrictions on the right of access
Since data protection is concerned
with the privacy of the individual as
regards personal information held
about him in automated form, the
Act gives him a right of access to his
data so that he may know what
information is kept about him and
by whom it is kept.
Although this right is given
precedence over any privacy provision
already in existence, either by virtue
of a statute law or a rule of law (for
example, a rule of confidentiality), it
is not an absolute right, but is
subject to the rights and freedoms of
others in certain cases. For example:
• because the subject access
provisions override any existing
law that forbids or restricts the
disclosure of personal
information, some of these laws
are allowed to prevail where the
interest of the individual or of
others so requires
(see section 5(3)
and Data Protection Act, 1988
(Restriction of section 4)
Regulations (S.I. No. 81 of 1989)
• the right of access is subordinated
to the principle that third party
information must not be disclosed
to a data subject making an
access request without the consent
of the individual concerned (see
section 4(4))
• the right of access is
modified
in
the interest of the data subject as
regards health and social work
data, where to grant it would
cause serious harm to the health
of the individual seeking access
(section 4(8))
• where personal data are such that
a claim of privilege could be
maintained in respect of them in
legal proceedings, the right of
access does not apply at all
(section 5(g)).
Other exclusions and exemptions
Access is not the only area where
exclusions or exemptions operate.
The Act also provides for the
following:
• the complete exclusion of certain
kinds of data from its scope
(section 1(4))
• the relaxation in certain cases of
the principle requiring any
disclosure of personal data to be
compatible with the purpose for
which they are collected and
stored
(section 8)
• if an
"operation"
is performed on
computer (e.g. on a wordprocessor)
solely for the purpose of preparing
the text of documents; it will not
be deemed a "processing" of
personal data
(section 1).
A person
who prepares the text of a
document on a word processor is
in the same position as a person
who does so on an ordinary
typewriter. It should be noted,
however, that this provision does
not
give any exemption to the
personal data
associated with such
an operation where such data are
retained on computer.
Needless to say, every data controller
is entitled to rely on any of these
exceptions or exclusions in an
appropriate case.
Appeals procedures
The scheme of the Act ensures
furthermore that a data subject or a
data controller may appeal to the
Commissioner in relation to the
interpretation or application of any
of its provisions. If any person is
aggrieved by, or disagrees with any
decision or act of the Commissioner,
that person can appeal against it to
the Circuit Court.
Donal C. Linehan
Temporary Closure of Land
Commission Records Office
The Land Commission Records
Branch is being transferred from 23
Upper Merrion Street to the
National Archives in Bishop Street.
As transfer of the records will take
about three months the public office
of the Records Branch of the Land
Commission has closed with effect
from Monday 17 August, 1992 until
17 November, 1992.
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