The Act, however, does cover manual files where these have been structured in such a way that personal information in them can readily be found without searching. It is then your obligation to treat this information as if it was held in electronic format. If you (or your clerks) do receive briefs in electronic format or you decide to scan physical material and manipulate it, then technically you are processing data and fall within DPA 1998.
That said, you are not absolved from all responsibilities. This is your client’s confidential information and has to be treated as such. Physical confidential information is much wider than the ambit of DPA 1998. The Act is essentially concerned with protecting the privacy of living individuals; confidential information covers everything from written information about individuals to inventions to marketing information and so on.
What to do with confidential information
Your IT Panel would like to restate formally what to do with confidential information:
- Have a look at the Bar Code of Conduct, r 702 (see box) – this sets out your basic professional obligation to keep client information confidential.
- Do not leave confidential information freely available in the clerks’ room or where it may be read by other members of chambers (unless authorised to do so) or visitors.
- Do not leave confidential material where it may be viewed inadvertently by others entering the room (unless they are authorised to look at it; eg, a pupil).
- Although many of you commute long distances, try not to read or work on confidential information where it can be overlooked by the public.
- Try to keep confidential information stored in chambers. If you have to work elsewhere don’t leave confidential information unattended (your solicitor’s office is an obvious exception).
- If you are travelling by car put your files in the boot, and take them with you overnight.
If you do government or government agency work, you need to comply with the Attorney General’s guidelines on information security to be found at: www.tsol.gov.uk/PanelCounsel/security.htm.
It is a requirement of DPA 1998 that personal data should not be retained for longer than is required. However, this may be seven years or longer for case files. Accordingly, the retention of personal data should be reviewed regularly. The retention of precedents, pleadings, advices and documents that have been used in open court, from which personal data have been removed by anonymising, is not a breach of DPA 1998.
Chambers should have procedures in place for the secure disposal of confidential material and electronic media (eg, the cross-cut shredding of papers and CD-ROMs) and hard drives.
Barristers who wish to dispose of any computer or electronic media upon which confidential material has been stored must ensure the material is effectively destroyed or wiped using a recognised method to put the data beyond recovery. Merely deleting the files, single-pass overwriting, or reformatting the disk is insufficient. Physical destruction or the use of specialist deletion and overwriting software is necessary.
This completes the IT Panel’s summary on how to treat both electronically processed and written information. It would be happy to answer queries from barristers.
Please contact Alexandra McHenry (AMcHenry@BarCouncil.org.uk).
Rule 702 of the Code of Conduct states:
“Whether or not the relation of counsel and client continues a barrister must preserve the confidentiality of the lay client’s affairs and must not without the prior consent of the lay client or as permitted by law lend or reveal the contents of the papers in any instructions to or communicate to any third person (other than another barrister, a pupil, in the case of a Registered European Lawyer, the person with whom he is acting in conjunction for the purposes of paragraph 5(3) of the Registered European Lawyers Rules or any other person who needs to know it for the performance of their duties) information which has been entrusted to him in confidence or use such information to the lay client’s detriment or to his own or another client’s advantage.”
Graham Cunningham, with contributions from Iain Mitchell QC, Clive Freedman and Jacqueline Reid of the Bar Council IT Panel