Data Protection Act 1988: Procuring Disclosure of Personal Data

Notice from the Bar Council's Professional Practice Committee (PPC)

In the light of recent concerns about the extent to which private enquiry agents, the media and others have been able to obtain and use personal data in apparent disregard of the rights of the data subject, the PPC wishes to remind barristers of some of the provisions of the DPA, which may be relevant when considering the obtaining and use of material as evidence in proceedings.

On the one hand, s. 35 permits the data controller to disclose personal data when required by law or court order, or when necessary for the purpose of actual or prospective legal proceedings, for obtaining legal advice or for establishing, exercising or defending legal rights. So, if one’s client is already lawfully in possession of an item of personal information, the DPA will not necessarily limit the typical uses to which counsel may wish to put it.

But on the other hand, s. 55 renders it a criminal offence knowingly or recklessly to obtain, disclose or procure the disclosure of personal data without the consent of the data controller (subject to various exceptions, including a reasonable belief in legal entitlement, and a public interest defence). Counsel should bear this provision in mind, from the standpoint of their own potential liability as well as that of their lay and professional clients, when advising that information be obtained about personal matters concerning the opposing party, such as financial status or criminal records, which would normally be held as personal data under the DPA. In particular cases, other provisions of the DPA may also be relevant to professional practice.

The PPC is not able to advise members of the Bar on their substantive legal obligations, including obligations under the DPA, but considers that this reminder may be useful.

April 2007