Introduction

The Data Protection Act 1998 only applies to living individuals and describes two different types of personal data. The first relates to most of the data held about individuals and the second to sensitive personal data which it then goes on to define. The first test of data is always, ‘Is it personal?’, and only if this condition is met can the sensitive data test be applied.

Personal data can be held, as will be seen in Chapter 5, without specific consent of the subject so long as they are aware that the data is being held and why. Sensitive data can only be held with specific consent and this will be examined later in this chapter.

The definition of personal data is vital to the operation not only of this Act but also of the other main legislation in the information rights set. These remaining enactments both have sections which exempt personal data from their provisions. In the Freedom of Information Act 2000 this is section 40 and in the Environmental Information Regulations 2004 it is regulation 13.

The Act itself leaves this area open to some interpretation. Section 1(1) describes personal data as follows:

Deceased persons

Firstly the Act only applies to living individuals. Data of persons who are deceased no longer come under the Act although there are other laws which relate to this type of data. Examples of some of these are: Access to Health Records Act 1990 (this relates to access by the next of kin to health records of the deceased), Local Government Finance Act 1992 (as it relates to council tax data), and Human Rights Act 1998, Article 8 of Schedule 1 (this article, lifted from the European directive, gives everyone the right to respect for his private and family life, his home and his correspondence).