Legislation – Data (Use and Access) Act 2025

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Part 5Data protection and privacy

Chapter 1Data protection

Enforcement

100Interview notices

(1)

The 2018 Act is amended as follows.

(2)

After section 148 insert—

“Interview notices

148AInterview notices

(1)

This section applies where the Commissioner suspects that a controller or processor—

(a)

has failed or is failing as described in section 149(2), or

(b)

has committed or is committing an offence under this Act.

(2)

For the purpose of investigating the suspected failure or offence, the Commissioner may, by written notice (an “interview notice”), require an individual within subsection (3) to—

(a)

attend at a place specified in the notice, and

(b)

answer questions with respect to any matter relevant to the investigation.

(3)

An individual is within this subsection if the individual—

(a)

is the controller or processor,

(b)

is or was at any time employed by, or otherwise working for, the controller or processor, or

(c)

is or was at any time concerned in the management or control of the controller or processor.

(4)

An interview notice must specify the time at which the individual must attend at the specified place and answer questions (but see the restrictions in subsections (6) and (7)).

(5)

An interview notice must—

(a)

indicate the nature of the suspected failure or offence that is the subject of the investigation,

(b)

provide information about the consequences of failure to comply with the notice, and

(c)

provide information about the rights under sections 162 and 164 (appeals etc).

(6)

An interview notice may not require an individual to attend at the specified place and answer questions before the end of the period within which an appeal can be brought against the notice.

(7)

If an appeal is brought against an interview notice, the individual to whom the notice is given need not attend at the specified place and answer questions pending the determination or withdrawal of the appeal.

(8)

If an interview notice—

(a)

states that, in the Commissioner’s opinion, it is necessary for the individual to attend at the specified place and answer questions urgently, and

(b)

gives the Commissioner’s reasons for reaching that opinion,

subsections (6) and (7) do not apply but the notice must not require the individual to attend at the specified place and answer questions before the end of the period of 24 hours beginning when the notice is given.

(9)

The Commissioner may cancel or vary an interview notice by written notice to the individual to whom it was given.

148BInterview notices: restrictions

(1)

An interview notice does not require an individual to answer questions to the extent that requiring the person to do so would involve an infringement of the privileges of either House of Parliament.

(2)

An interview notice does not require an individual to answer questions in respect of a communication which is made—

(a)

between a professional legal adviser and the adviser’s client, and

(b)

in connection with the giving of legal advice to the client with respect to obligations, liabilities or rights under the data protection legislation.

(3)

An interview notice does not require an individual to answer questions in respect of a communication which is made—

(a)

between a professional legal adviser and the adviser’s client or between such an adviser or client and another person,

(b)

in connection with or in contemplation of proceedings under or arising out of the data protection legislation, and

(c)

for the purposes of such proceedings.

(4)

In subsections (2) and (3), references to the client of a professional legal adviser include references to a person acting on behalf of the client.

(5)

An interview notice does not require an individual to answer questions if doing so would, by revealing evidence of the commission of an offence, expose the individual to proceedings for that offence.

(6)

The reference to an offence in subsection (5) does not include an offence under—

(a)

this Act;

(b)

section 5 of the Perjury Act 1911 (false statements made otherwise than on oath);

(c)

section 44(2) of the Criminal Law (Consolidation) (Scotland) Act 1995 (false statements made otherwise than on oath);

(d)

Article 10 of the Perjury (Northern Ireland) Order 1979 (S.I. 1979/1714 (N.I. 19)) (false statutory declarations and other false unsworn statements).

(7)

A statement made by an individual in response to an interview notice may not be used in evidence against that individual on a prosecution for an offence under this Act (other than an offence under section 148C) unless in the proceedings—

(a)

in giving evidence the individual provides information inconsistent with the statement, and

(b)

evidence relating to the statement is adduced, or a question relating to it is asked, by that individual or on that individual’s behalf.

(8)

The Commissioner may not give an interview notice with respect to the processing of personal data for the special purposes.

(9)

The Commissioner may not give an interview notice to an individual for the purpose of investigating a suspected failure or offence if the controller or processor suspected of the failure or offence is a body specified in section 23(3) of the Freedom of Information Act 2000 (bodies dealing with security matters).

148CFalse statements made in response to interview notices

It is an offence for an individual, in response to an interview notice—

(a)

to make a statement which the individual knows to be false in a material respect, or

(b)

recklessly to make a statement which is false in a material respect.”

(3)

In section 149 (enforcement notices), in subsection (9)(b)—

(a)

after “an assessment notice” insert “, an interview notice”, and

(b)

after “147” insert “, 148A, 148B”.

(4)

In section 155 (penalty notices), in subsection (1)(b), after “assessment notice” insert “, an interview notice”.

(5)

In section 157 (maximum amount of penalty), in subsection (4), after “assessment notice” insert “, an interview notice”.

(6)

In section 160 (guidance about regulatory action)—

(a)

in subsection (1), after paragraph (b) insert—

“(ba)

interview notices,”, and

(b)

after subsection (5) insert—

“(5A)

In relation to interview notices, the guidance must include—

(a)

provision specifying factors to be considered in determining whether to give an interview notice to an individual;

(b)

provision about the circumstances in which the Commissioner would consider it appropriate to give an interview notice to an individual in reliance on section 148A(8) (urgent cases);

(c)

provision about the circumstances in which the Commissioner would consider it appropriate to vary the place or time specified in an interview notice at the request of the individual to whom the notice is given;

(d)

provision about the nature of interviews carried out in accordance with an interview notice;

(e)

provision about how the Commissioner will determine how to proceed if an individual does not comply with an interview notice.”

(7)

In section 162 (rights of appeal), in subsection (1), after paragraph (b) insert—

“(ba)

an interview notice;”.

(8)

In section 164 (applications in respect of urgent notices)—

(a)

in subsection (1), after “assessment notice” insert “, an interview notice”, and

(b)

in subsection (5), after paragraph (b) (but before the “and” at the end of that paragraph) insert—

“(ba)

in relation to an interview notice, a statement under section 148A(8)(a),”.

(9)

In section 181 (interpretation of Part 6), at the appropriate place, insert—

““interview notice” has the meaning given in section 148A;”.

(10)

In section 196 (penalties for offences), in subsection (2), after “148,” insert “148C,”.

(11)

In section 206 (index of defined expressions), at the appropriate place, insert—

“interview notice (in Part 6)

section 181”.

(12)

In Schedule 17 (review of processing of personal data for the purposes of journalism)—

(a)

after paragraph 3 insert—

“Interview notices

3A

(1)

Sub-paragraph (2) applies where the Commissioner gives an interview notice to an individual during a relevant period.

(2)

If the interview notice—

(a)

states that, in the Commissioner’s opinion, it is necessary for the individual to comply with a requirement in the notice for the purposes of the relevant review, and

(b)

gives the Commissioner’s reasons for reaching that opinion,

subsections (6) and (7) of section 148A do not apply but the notice must not require the individual to comply with the requirement before the end of the period of 24 hours beginning when the notice is given.

(3)

During a relevant period, section 148B has effect as if for subsection (8) there were substituted—

“(8)

The Commissioner may not give an individual an interview notice with respect to the processing of personal data for the special purposes unless a determination under section 174 with respect to the data or the processing has taken effect.”

(b)

in paragraph 4 (applications in respect of urgent notices)—

(i)

for “or assessment notice” substitute “, assessment notice or interview notice”,

(ii)

for “or 3(2)(a)” substitute “, 3(2)(a) or 3A(2)(a)”, and

(iii)

for “or 146(8)(a)” substitute “, 146(8)(a) or 148A(8)(a)”.