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Susan Healy The National Archives. Privacy, confidentiality and data protection. 3 May 2012. FOI/EIR. Common law. Other legislation. Data protection. Legal framework. archivists. depositors. employers. researchers. subjects. Between a rock and a hard place …. Archivists

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Presentation Transcript
legal framework


Common law

Other legislation

Data protection

Legal framework
between a rock and a hard place






Between a rock and a hard place …
  • Archivists
  • Depositors
  • Employers
  • Researchers
  • Subjects
case study fs50416747 wyas case
Case study – FS50416747 (WYAS case)
  • Records re prosecution of foreign national serving in the UK for sexual offence in 1943
  • Applicant believes she is the result of the encounter and wants to know her father’s name (her mother is dead)
  • WYAS confirmed it holds relevant records
  • WYAS refused to provide the information citing FOIA s s 40 (personal data) – the man prosecuted may be alive, would only be in his 80s, so DPA applies
  • ICO upheld refusal
arguments for and against disclosure

1943 is a long time ago

Art 8 ECHR – hers to details of her identity

Art 8 ECHR - hers to discover family health history

Public knowledge at the time?

Is it her personal data too?


He may still be alive

DPA Principle 1 breach

Art 8 ECHR – his to private and family life

Public knowledge then is not public knowledge now

FOI is about access to all, not a private interest

Possible mistaken identity

Arguments for and against disclosure

The future – EU Data Protection Regulation

  • Right to correct inaccurate data or complete incomplete data (Art 16)
    • Can concept apply to archives?
  • Right to be forgotten and to erasure (Art 17)
    • some protection for data being processed for research purposes only
    • what if data being processed for other reasons also, e.g. Children’s Society?
  • Archivists to anonymise personal data if possible and review data retention every 3 years (Art 83)


  • Information Commissioner’s Office - general and topic-specific guidance and FOI Decision Notices -
  • Code of practice for archivists and records managers under s51 of the Data Protection Act 1998 –
  • EC draft Data Protection Regulation