Guidance

Office of the Advocate General Data Protection Policy

Published 24 May 2018

NOTE: Date last modified 3 September 2021. The wording in this policy reflects the requirements of the General Data Protection Regulation (GDPR), which came into effect in the UK on 25 May 2018.

1. Introduction

1.1 Purpose

This policy sets out how OAG holds and processes personal data.

1.2 Definitions

“Personal data” is any information that relates to an individual who can be identified from that information. Processing is any use that is made of data, including collecting, storing, amending, disclosing or destroying it.

“Special categories of personal data” means information about an individual’s racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, health, sex life or sexual orientation and biometric data.

“Criminal records data” means information about an individual’s criminal convictions and offences, and information relating to criminal allegations and proceedings.

1.3 Data protection principles

OAG processes personal data in accordance with the following data protection principles:

• OAG processes personal data lawfully, fairly and in a transparent manner.
• OAG collects personal data only for specified, explicit and legitimate purposes.
• OAG processes personal data only where it is adequate, relevant and limited to what is necessary for the purposes of processing.
• OAG keeps accurate personal data and takes all reasonable steps to ensure that inaccurate personal data is rectified or deleted without delay.
• OAG keeps personal data only for the period necessary for processing.
• OAG adopts appropriate measures to make sure that personal data is secure, and protected against unauthorised or unlawful processing, and accidental loss, destruction or damage.

2. Personal Data held by OAG

Much of the personal data held and processed by OAG is for the purpose of providing advice to or litigating on behalf of UK government departments. Such personal data is exempt from the requirements of Articles 13 to 15 of the GDPR, under which an organisation is required to tell individuals the reasons for processing their personal data, how it uses such data and the legal basis for processing in its privacy notices.

Much of the personal data held and processed by OAG is for the purpose of providing advice to or litigating on behalf of UK government departments. Such personal data is exempt from the requirements of Articles 13 to 15 of the GDPR, under which an organisation is required to tell individuals the reasons for processing their personal data, how it uses such data and the legal basis for processing in its privacy notices.
OAG holds and processes some data not covered by this exemption, such as information held in connection with its staff or information supplied by individuals making Freedom of Information requests. Where data is held for purposes not covered by exemptions, OAG’s privacy notice informs individuals the reasons for processing their personal data, how it uses such data and the legal basis for processing. It will not process personal data of individuals for other reasons.

Where exemptions do not apply, OAG will update personal data promptly if an individual advises that his/her information has changed or is inaccurate.

OAG keeps a record of its processing activities in respect of personal data in accordance with the requirements of the General Data Protection Regulation (GDPR).

3. Individual rights

As a data subject, individuals have a number of rights in relation to their personal data.

Subject access requests (SAR).

Individuals have the right to make a subject access request (i.e. a request to be informed what data OAG holds about them as an individual). However, this right is not available where the information is held in connection with certain exemptions in Schedule 2 of the Data Protection Act 2018, such the provision of legal advice.

If an individual makes a subject access request which is not covered by an exemption, OAG will tell him/her:

• whether or not his/her data is processed and if so why, the categories of personal data concerned and the source of the data if it is not collected from the individual;
• to whom his/her data is or may be disclosed, including to recipients located outside the European Economic Area (EEA) and the safeguards that apply to such transfers;
• for how long his/her personal data is stored (or how that period is decided);
• his/her rights to rectification or erasure of data, or to restrict or object to processing;
• his/her right to complain to the Information Commissioner if he/she thinks the organisation has failed to comply with his/her data protection rights; and
• whether or not the organisation carries out automated decision-making and the logic involved in any such decision-making. OAG will also provide the individual with a copy of the personal data undergoing processing.

This will normally be in electronic form if the individual has made a request electronically, unless he/she agrees otherwise.

If the individual wants additional copies, OAG may charge a fee, which will be based on the administrative cost to the organisation of providing the additional copies.

To make a subject access request, the individual may send the request to enquiries@advocategeneral.gov.uk. The individual may use this form. In some cases, OAG may need to ask for proof of identification before the request can be processed. OAG will inform the individual if it needs to verify his/her identity and the documents it requires.

OAG will normally respond to a request as soon as practicable, and in most cases within a period of one month from the date it is received. In some cases, such as where OAG processes large amounts of the individual’s data, it may respond within three months of the date the request is received. The organisation will write to the individual within one month of receiving the original request to tell him/her if this is the case.

4. Other rights

Individuals have a number of other rights in relation to their personal data. They can require the organisation to:

• rectify inaccurate data
• stop processing or erase data that: a) is no longer necessary for the purposes of processing; b) where the individual’s interests override the organisation’s legitimate grounds for processing data (where the organisation relies on its legitimate interests as a reason for processing data);
  c) if its processing is unlawful.
• restrict the processing of data for a period if data is inaccurate or if there is a dispute about whether or not the individual’s interests override the organisation’s legitimate grounds for processing data.

However, the GDPR and the Data Protection Act 2018 contain exemptions from some of these rights in connection with information held for specific purposes. To ask OAG to take any of these steps, an individual may send the request to enquiries@advocategeneral.gov.uk.

5. Data security

OAG takes the security of personal data seriously. OAG has internal policies and controls in place to protect personal data against loss, accidental destruction, misuse or disclosure, and to ensure that data is not accessed, except by employees in the proper performance of their duties.

Where OAG engages third parties to process personal data on its behalf, such parties do so on the basis of written instructions, are under a duty of confidentiality and are obliged to implement appropriate technical and organisational measures to ensure the security of data.

6. Data breaches

If OAG discovers that there has been a breach of personal data that poses a risk to the rights and freedoms of individuals, it will report it to the Information Commissioner within 72 hours of discovery. OAG will record all such data breaches regardless of their effect.

If the breach is likely to result in a high risk to the rights and freedoms of individuals, OAG will tell affected individuals that there has been a breach and provide them with information about its likely consequences and the mitigation measures it has taken.

7. Individual responsibilities – OAG Staff

Individuals are responsible for helping OAG keep their personal data up to date. Individuals should let the department know if data provided to OAG changes, for example if an individual moves house. Individuals within the department who have access to personal data are required:

• to access only data that they have authority to access and only for authorised purposes;
• not to disclose data except to individuals (whether inside or outside the organisation) who have appropriate authorisation;
• to keep data secure (for example by complying with rules on access to premises, computer access, including password protection, and secure file storage and destruction);
• not to remove personal data, or devices containing or that can be used to access personal data, from the organisation’s premises without adopting appropriate security measures (such as encryption or password protection) to secure the data and the device; and
• not to store personal data on local drives or on personal devices that are used for work purposes.

Failing to observe these requirements may amount to a disciplinary offence. Significant or deliberate breaches of this policy, such as accessing employee or customer data without authorisation or a legitimate reason to do so, may constitute gross misconduct and could lead to dismissal without notice.

8. Training

OAG will ensure that all staff processing personal data receive required training on data protection. OAG will ensure that those who are responsible for implementing this policy, or responding to subject access requests under this policy, will receive additional training to help them understand their duties and how to comply with them.

9. Data Protection Officer

Our Data Protection Officer is the person with responsibility for data protection compliance within OAG. They can be contacted by email at SO-and-OAG-DPO@ukgovscotland.gov.uk or by post at:

OAG Data Protection Officer Scotland Office Queen Elizabeth House Edinburgh EH8 8FT Questions about this policy, or requests for further information, should be directed to them.