Format of notices paras 4.11 to 4.15
Format of notices
4.11 The statutory requirements of the Act[11] mean that any notice imposing a disclosure requirement in respect of any protected information:
- [11] See section 49(4)
- a) must be given in writing or in a manner that produces a record;
- b) must describe the protected information to which the notice relates and, where known and where appropriate, identify any key to the protected information;
- c) must specify the grounds on which the notice is necessary including where appropriate the statutory power or duty within the meaning of section 49 (2)(b) (ii) of the Act;
- d) must specify the office, rank or position of the individual giving the notice, and where appropriate and helpful to do so, their name (or designation);
- e) must specify the office, rank or position of the person who granted permission for the notice to be given and where appropriate, which will be ordinarily in most cases the name of that person. If the person giving the notice does so without another persons' permission, the notice must set out the circumstances in which the person giving the notice is entitled to do so;
- f) must specify the time by which the notice is to be complied with, which must be reasonable in all the circumstances; and
- g) must set out clearly the extent of the disclosure required - whether a disclosure of the protected information in an intelligible form, or a disclosure of the means to either or both access the protected information and put it in an intelligible form - and must set out clearly how the disclosure is to be made.
4.12 A notice cannot require any person to make a disclosure to someone other than the person giving the notice or such other person as is specified or identified in the notice where disclosure to another person is in accordance with the notice. For example, an investigator giving the notice may require disclosure to be made to a technical facility or to a named technician.
4.13 Section 49 notices must describe the form and manner in which the required disclosure of information is to be made (as described in paragraph 4.11 above).
Notwithstanding this, it is best practice that the person giving the notice seeks, so far as possible, to agree with the person given the notice or with their professional legal adviser the manner in which the required disclosure should take place. The conditions under which compliance with the disclosure requirement takes place must be reasonable and practicable in all circumstances.
4.14 Notices should explain clearly that it is an offence to knowingly fail to make the required disclosure (section 53 of the Act) and, where a secrecy requirement is being imposed explain the 'tipping off' offence (section 54 of the Act).
4.15 Section 49 notices should clarify that if the recipient has any doubt what they are required to do in response to the notice, they should contact a professional legal adviser.