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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, at the Law Society.

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 who 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 cold 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