1.7 Data Protection

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1. Introduction

Data protection legislation should not be seen as an obstacle to sharing information, but as a framework of best practice which helps to ensure that when Lancashire County Council records and shares information, it does so safely and in a way which is transparent and in line with the law.

Lancashire County Council collects, uses, stores and retains (for specified time periods) information about people with whom it works. This includes:

• adults in receipt of services, including their families and any children, as well as those who are no longer in receipt of services;
• staff; and
• suppliers.

When processing data in this way, Lancashire County Council must comply with the requirements of the Data Protection Act (DPA) 2018 and the UK General Data Protection Regulation (UK GDPR).

Lancashire County Council must also ensure, through its procedures and working practices, that all employees, including contractors, consultants, suppliers and partners who have access to any personal data held by or on its behalf, are fully aware of and abide by their duties and responsibilities under data protection legislation. Any contracts with service providers must be clear about the different parties’ responsibilities for data processing and information sharing.

Personal information must be handled and dealt with in accordance with data protection legislation regardless of how it is collected, recorded, stored and used, and whether it be on paper, on computer or digital records or recorded in any other way.

In addition, Lancashire County Council may also be required to collect and use information in order to comply with the requirements of central government, such as in the case of a Safeguarding Adults Review or Care Quality Commission assessment.

2. Relevant Legislation

In the UK, data protection is governed by the UK General Data Protection Regulation (UK GDPR) and the Data Protection Act (DPA) 2018.

If a staff member receives a query about the collection or processing of personal data, they should contact the Information Governance Team for advice. See also Access to Records chapter.

3. Principles of Data Protection: Article 5 UK GDPR

Anyone processing personal data must comply with the principles laid down in the UK GDPR. These are legally enforceable and require that when personal data is processed this must be done so in a way which:

• is lawful and fair and carried out in a transparent manner in relation to the data subject. (lawfulness, fairness and transparency principle);
• is specified, explicit and legitimate and not further processed for other purposes incompatible with those purposes (purpose limitation principle);
• is adequate, relevant and not excessive to what is necessary in relation to the purposes for which data is processed (the data minimisation principle);
• is accurate and kept up to date (the accuracy principle);
• is kept for no longer than is necessary for the purposes for which the personal data is processed (the storage limitation principle);
• ensures appropriate security including protection against unauthorised or unlawful processing and accidental loss, destruction or damage, using appropriate technical or organisational measures (the integrity and confidentiality principle and the accountability principle).

3.1 Handling personal data or special category personal data

The DPA and UK GDPR outline conditions for the lawful processing of personal data, and make a distinction between personal data and special category personal data.

Personal data is any information relating to a living person who can be identified, or who is identifiable, directly from that information, or who can be indirectly identified from that information in combination with other information.

3.2 What is Personal Data under Article 4 UK GDPR?

Personal data is:

• any information relating to an identified or identifiable natural person such as ;
  • a name;
  • an identification number;
  • location data;
  • an online identifier or other factor that can identify an individual (such as an address, an email address, a contact number, IP address or web cookie identifiers).

Where a “natural person” is mentioned, this means a living individual and not deceased individual. While a deceased individual’s data is not considered personal or special category personal data under the DPA / UK GDPR, the obligation of confidentiality continues to apply to the deceased individual’s data.

3.3 Special categories of personal data – UK GDPR  Article 9

Special category personal data is data that needs more protection because it is sensitive, it includes personal data which reveals an individual’s:

• racial or ethnic origin;
• political opinion;
• religious or philosophical beliefs;
• trade union membership;
• genetic data;
• biometric data;
• health;
• sexual life or sexual orientation.

3.4 Identifying a lawful basis for processing and sharing information

Article 6 of the UK GDPR providers practitioners with a number of lawful bases for processing and sharing information. At least one of these must apply whenever personal data is processed.

Where practitioners need to process and share special category data, they need to identify both a lawful basis for processing under Article 6 of the UK GDPR and a special category condition for processing in compliance with Article 9 (see: A Guide to Lawful Basis (Information Commissioner’s Office)).

4. Data Protection Practice

Lancashire County Council must:

• observe fully conditions regarding the fair collection and use of personal information;
• meet its legal obligations to specify the purpose for which information is used;
• collect and process appropriate information only to the extent that it is needed to fulfil operational needs or to comply with any legal requirements;
• ensure the quality of information used;
• apply strict checks to determine the length of time information is held;
• take appropriate technical and organisational security measures to safeguard personal information;
• ensure that personal information is not transferred abroad without suitable safeguards;
• ensure that the rights of people about whom the information is held can be fully exercised under data protection legislation. These include:
  • the right to be informed that processing is being undertaken;
  • the right of access to their personal information within the one month statutory timescale (see Access to Records chapter);
  • the right to prevent processing in certain circumstances;
  • where applicable, the right to correct, rectify, block or erase information regarded as wrong information.

In addition, Lancashire County Council must ensure that:

• everyone managing and handling personal information understands that they are contractually responsible for following good data protection practice;
• everyone managing and handling personal information is appropriately trained to do so;
• everyone managing and handling personal information is appropriately supervised;
• anyone wanting to make enquiries about handling personal information, whether a member of staff or a member of the public, knows what to do;
• queries about handling personal information are dealt with promptly and courteously;
• data sharing is carried out under a written agreement, setting out the scope and limits of the sharing. Any disclosure of personal data will be in compliance with approved procedures.

To prevent unauthorised access or unlawful loss or disclosure, managers and staff will take the following steps to ensure that personal data is kept secure at all times:

• paper files and other records or documents containing personal / sensitive data are kept in a secure environment;
• personal data held on computers and computer systems is protected by the use of secure; passwords, which are changed at specified intervals;
• passwords must not be easily compromised, and must not be shared with others;
• personal data should only be accessible to team members with appropriate access levels;
• data in all forms must be disposed of by secure means and in accordance with local policies.

5. Redaction of Third-Party Data

Before sharing information, Lancashire County Council must redact (or remove) personal data relating to third parties, to protect their privacy.

For example, where social work records include references to other people, such as the adult’s family and friends, it is like some of this information will need to be withheld (redacted) before the record can be shared.

Under the Data Protection Act, it is for each local authority to weigh up how ‘reasonable’ it is to share another person’s information in each case (for example, it may be reasonable to share information about another family members’ health condition if is likely to be hereditary).

The Act is clear however that any person who appears in records because they were employed to provide care or received payment for providing a service, or acted in an official capacity, should not be treated as ‘third party’. This means that the names and information of social workers and other professionals should not be redacted.

6. Rights of the Data Subject

Any person whose information is being processed by Lancashire County Council has the following rights:

1. to be informed of data processing (for example a privacy notice);
2.  to be able to access information collected in relation to them free of charge (also known as a Subject Access Request) – there is a one month time limit for Lancashire County Council to respond to any such request. This can be extended by a further two months in certain, limited circumstances;
3. to have inaccuracies corrected;
4. to have information erased (though this is not an absolute right);
5. to restrict processing;
6. where applicable, to have data portability;
7. intervention in respect of automated decision making;
8. where applicable, to be able to withdraw consent;
9. to complain to the Information Commissioner’s Office (ICO).

6.1 Right to be informed (section 44 DPA)

A person whose information is being processed should have access to a privacy notice setting out:

• lawful basis for processing;
• contact details for Data Protection Officer (DPO);

• what information will be processed;

• who it will be shared with and why;
• how long it will be held;
• details of rights;

• how to complain.

See Privacy Notice (Lancashire County Council website)

6.2 Rectification (Section 46 DPA)

A person whose information is being processed has the following rights:

• to rectify or correct inaccurate information;
• if information is incomplete, it must be completed;
• rectification or correction can be achieved by the provision of a supplementary statement;
• where the rectification is of information maintained for the purposes of evidence, instead if rectifying, the processing should be restricted;
• be informed in writing if request has been granted and if not the reasons for this.

7. Action if there is a Data Breach

A breach of data security can be either accidental, deliberate or unlawful and can involve:

• destruction;
• loss;
• alteration;
• unauthorised disclosure;
• unauthorised access.

A breach covers accidental and deliberate causes and is more than just losing personal data.

7.1 Examples of data breaches

Commonly occurring breaches include:

• access by an unauthorised party, including a third party;
• deliberate or accidental action (or inaction) by a controller or processor;
• sending personal data to an incorrect recipient;
• electronic devices containing personal data being lost or stolen;
• alteration of personal data without permission; and
• loss of availability of personal data.

7.2 What constitutes a serious data breach?

A serious data breach:

• is where it is likely to result in a risk to the rights and freedoms of individuals. If unaddressed such a breach is likely to have a significant detrimental effect on individuals – for example, result in discrimination, damage to reputation, risk of physical harm, financial loss, loss of confidentiality or any other significant economic or social disadvantage;
• must be assessed on a case by case basis;
• must consider these factors: detriment / nature of data / volume (detriment includes emotional distress as well as both physical and financial damage).

All serious data breaches must be reported to the ICO within 72 hours of becoming aware of the breach. See ICO: Data Breach Reporting.

8. Further Reading

8.1 Relevant chapters

Information Sharing, Record Keeping and Confidentiality

8.2 Relevant information

Guide to the Data Protection Principles (Information Commissioner’s Office)

Data Protection and Working from Home (Information Commissioner’s Office)