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Requests for disclosure under Schedule 2 Part 1(5)(1-3)– Legal proceedings (previously s. 35 of the DPA 1998)

This guidance does not apply to family court proceedings. This guidance does not overrule or replace other Information Sharing Agreements, Memorandum of Understandings or Protocols.

1. Requests made under Schedule 2 Part 1(5) of the Data Protection Act 2018

(a) Schedule 2 Part 1(5) of the Data Protection Act 2018 states that personal data are exempt from the non-disclosure provisions whereby:

  • a disclosure is required by or under an enactment, by any rule of law or by the order of a court;
  • for the purpose of, or in connection with, any legal proceedings (including prospective legal proceedings) or the purpose of obtaining legal advice, or is otherwise necessary for the purpose of establishing, exercising or defending legal rights.

(b) It should be noted that if there is an alternative option for obtaining the information then this option will be considered and reviewed first, even if the application for disclosure cites Schedule 2 Part 1(5). Requests disclosed under Schedule 2 Part 1(5) of the DPA 2018, can be charged and will be charged in accordance with NPCC Charge Rates for Common Items - FY 2017-18.

(c) Disclosures under Schedule 2 Part 1(5) DPA 2018 are discretionary to the Chief Constable and Lincolnshire Police can exercise a power not to disclose the information. Therefore each request will be considered on its own individual merits.

(d) Disclosures will be based on careful considerations of all the information that is provided by the applicant and the information that is held. A decision will be made based on public interest tests, risk of harm to individuals or investigations and the requirements of relevant legislation and the Constabulary’s business requirements for disclosure.

(e) In some circumstances, Lincolnshire Police will refuse the information requested, or certain parts of the information. If the request is refused in full, then the applicant will be reimbursed any fee they have made for disclosure.

2. Request received by a Court Order in private proceedings

(a) If a Court Order is received in private proceedings (other than family Court Proceedings) this will provide a lawful authority to enable confidential information to be shared (whilst complying with the conditions listed in  Article 6 and or Article 9 of the GDPR (previously Schedule 2 and or 3 condition(s)) if and when required.

(b) Court Orders are charged at a fee of £87.40 for the one-off disclosure. Lincolnshire Police reserves the right to vary the terms of the Court Order.

3. Schedule 2 Part 1(5) Procedure and guidance notes (previously section 35 DPA 1998)

(a) All requests for information made under Schedule 2 Part 1(5) of the Data Protection Act 2018 should be directed to the following addresses:

Data Protection Office
Lincolnshire Police
PO BOX 999
Lincoln
LN5 7PH

or email

dataprotection@lincs.pnn.police.uk

(b) All Schedule 2 Part 1(5) requests should be completed on the attached form (see Appendix B). The application form must be completed in full.

(c) If a letter is sent making the formal Schedule 2 Part 1(5) request and it does not contain enough information to satisfy the requirement of the Schedule 2 Part 1(5) request then a copy of the form will be sent by return post for the solicitor/applicant to complete.

(d) Litigants in person - (private, unrepresented individuals who have not instructed a solicitor) must provide a completed Appendix B form, the appropriate fee and two forms of identification, one showing your name and date of birth and another showing you name and current address. Examples of these are listed below:

  • Copy of Birth Certificate
  • Copy of Passport
  • Copy of Driver’s Licence
  • Copy of bank statement or utility bill

(e) If the applicant wishes for the information to be sent to another address, explicit consent must be sought for this from the applicant and details and supporting evidence (through ID) of the name and the alternative address for delivery must be provided.

(f) Lincolnshire Police also has the discretion to send the information that has been requested directly to the Court in which the legal proceedings are being issued, if they believe the information should remain purely within the Court arena. If this is the case, the applicant will be notified on release of the disclosure to the Court.

4. Targets and Conditions

(a) Lincolnshire Police will aim to provide all disclosure decisions for the Schedule 2 Part 1(5) requests within 20 workings days, however, if the information contains third party information and Lincolnshire Police wish to obtain consent prior the to the release of the material, this may be extended.

(b) Court Orders should always be served on Lincolnshire Police immediately after issue, or the Solicitors should contact Lincolnshire Police data protection on: dataprotection@lincs.pnn.police.uk or 01522 947120 , 01522 947122 or 01522 947125 and advise them of the terms of the Court Order so that the work can be started prior to receiving the Court Order.

(c) Lincolnshire Police reserves the right to withhold the disclosure of the information of ongoing investigations if it is thought the release of the information is likely to prejudice the ongoing criminal investigation.

(d) Lincolnshire Police will not release the information requested until the fee has been received (with the exception of Court Orders). Where the disclosure that is being requested is voluminous, then Lincolnshire Police can charge additionally to the standard fee of £84.40. If this is the case, then Lincolnshire Police will contact you and advise you of the information held and the cost of the disclosure (the charges will be made in accordance with NPCC Charge Rates for Common Items - FY 2017-18.

(e) Where information is provided, the recipient undertakes by signature the following:

  • to ensure that the information is secured safely
  • use any data supplied only for the purpose(s) described in this application
  • not to supply copies of the data to any other party except:
  1. To a legal representative under the recipient’s instruction of brief in the case
  2. To an expert witness instructed by the recipient or the Court in this case
  3. To comply with a further order or instruction of the Court or to comply with existing legal rules for disclosure/discovery in this case
  4. With the explicit (written) consent of the Chief Constable of Lincolnshire Police or nominee

(f) Lincolnshire Police may in some cases not provide the information to the recipient but may provide the information directly to the Court, the requester of this information will be notified of this decision.

(g) The recipient should sign to acknowledge that they understand that failure to comply with the undertaking may constitute a criminal offence, under the provisions of Section 170 of the Data Protection Act 2018.

(h) All disclosure will be sent via recorded delivery or special delivery (depending on the sensitivity of the information provided), unless the information can be disclosed by secure email. Both parties of the disclosure must have secure email. Information will not be released by fax.

All cheques should be made payable to:

 PCC for Lincolnshire’

Related Documents & Further Reading

30 Apr 19 9:21 AM

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