September 2007
47.80 Disclosure of information to the Lord Chancellor's Department (amended September 2007)
Magistrates are appointed by the Secretary of State for Constitutional Affairs and Lord Chancellor, on the advice of local Advisory Committees. The official receiver should notify the Secretary of the (local) Advisory Committee of the Lord Chancellor's Department if he/she becomes aware that a bankruptcy or disqualification order has been made against a lay magistrate. The making of a bankruptcy order automatically disqualifies an individual from holding that office. The telephone list of all local Advisory Committees is available at http://www.direct.gov.uk/en/CrimeJusticeAndTheLaw/Becomingamagistrate/DG_071395?IdcService=GET_FILE&dID=195839&Rendition=Web
No other information about the case should be given to an Advisory Committee. If further information is requested, the official receiver should consult Technical Section.
(Amended November 2010)
If a representative of the press, radio or television seeking information on a case contacts a member of the official receiver’s staff, no information should be disclosed. The official receiver should refer that person to Ade Daramy, The Service's press officer, or Denise Rawls, press office manager whose contact details are as follows:
Ade Daramy
Telephone: 020 7596 6187.
Email: ade.daramy@insolvency.gsi.gov.uk
47.82 Cause of action assigned to bankrupt
In cases where a cause of action has been assigned to a bankrupt it would be wrong for the official receiver to be, or appear to be, obstructive. Generally, any request for disclosure will be complied with, subject to any particular privilege/confidentiality issues in the case.
47.83 Data Protection Act 1998
The Data Protection Act 1998 regulates the processing of ‘personal data’, meaning information relating to a living individual who can be identified from that data. Further information, including guidance on the right of access to personal data, is provided at Chapter 81A. (see also Chapter 1, paragraph 1.17).
47.84 Individual Insolvency register (IIR)
(Amended November 2010)
The Individual Insolvency Register contains:
The official receiver should ensure that the information held on ISCIS is up to date and accurate as the information to compile the Register is extracted from ISCIS. This is particularly important in the case of a bankrupt’s date of birth (the main identifier on the Register) and any annulments which are required to be removed from the Register.
Members of the public can search the database on-line with just the surname (or even part of the surname) of the individual and the search can be of the whole of England and Wales, or the area covered by an individual Official Receiver’s office.
Members of the public are also entitled to attend any official receiver’s office and request that a search of the IIR is undertaken for no fee.
Searchers should be provided with copies of reports in respect of all matches (i.e. identical first names and surnames) even if the date of birth is not known. Where a surname is a common one and the searcher is unable to provide much information or if the search reveals numerous matches the searcher should be told the number of matches and requested to provide additional information.
There will be circumstances where a debtor or bankrupt could be at risk if his/her address is made public and they may obtain a court order that it be withheld. In this situation the register will state ‘address withheld', which should prevent inadvertent disclosure to searchers. Again this relies on the correct information being recorded on ISCIS. See also Chapter 4, paragraph 4.18A for information on “persons at risk of violence” provisions.
Notes: [r6A.1] [r6.235B]
47.85 The Gender Recognition Act 2004 (amended September 2007)
The Gender Recognition Act 2004 (GRA) came into force on 4 April 2005 and provides transsexual people with legal recognition in their acquired gender. This means that a male-to-female (or female-to-male) transsexual person will legally be recognised as a woman (man) in English law. Once a full gender recognition certificate is issued, the person’s gender becomes for all purposes the acquired gender, so that an applicant who was born a male would, in law, become a woman for all purposes.
It is not expected that the official receiver will deal with many cases of insolvency that involve transsexual people but official receivers should be aware that, subject to certain exemptions, the GRA introduces prohibitions on the disclosure of the gender history of a legally recognised transsexual person.
It is an offence under the GRA section 22 for a person to disclose information he/she has acquired in an official capacity about a person’s application for a gender recognition certificate or about the gender history of a successful applicant (this is known as “protected information”). There are exceptions to the general prohibition on disclosure. For example disclosure will not constitute an offence where:
There is also a specific exemption under section 7 of the GRA in relation to insolvency. This provides that it is not an offence to disclose protected information if:
(a) the disclosure is made by or to the official receiver (or insolvency practitioner);
(b) the disclosure is necessary for the official receiver to perform functions under legislation including the Insolvency Act 1986 and the Company Directors Disqualification Act 1986; and
(c) if the person making the disclosure knows or believes that a full gender recognition certificate has been issued to the subject, the disclosure also contains that information.
The purpose of this section is that third parties who are made aware of a gender change are brought within the scope of the legislation and may commit an offence if they then disclose that information to others.
47.86 Implications for the official receiver
The prohibition on disclosure of ‘protected information’ does not include disclosures made by a transsexual person; therefore, for example, a transsexual bankrupt remains under an obligation to disclose information about his/her affairs to the official receiver.
In keeping with the intentions of the GRA, official receivers are advised to be generally sympathetic when dealing with insolvencies involving a transsexual person. There may be legitimate reasons why a person would not wish their gender history to be revealed, for example because of the threat of mental or physical abuse. However, where appropriate, a person’s gender history may be disclosed provided that this falls within one or more of the exemptions in the legislation.
There are essentially two questions, which official receivers should consider before disclosing a person’s gender history:
(a) is disclosure in accordance with the insolvency legislation? E.g. is disclosure required to assist in the protection/recovery of assets or to enable creditors to identify debts due to them, and
(b) is the disclosure necessary? E.g. if an undischarged bankrupt changes their gender after the bankruptcy order or changed it many years before it, is there a need to reveal that to third parties?
Where a person consents to the disclosure of a previous gender/identity this should be recorded in writing (e.g. a statement or letter signed by the transsexual person) and retained on file but the official receiver should not try to pressurise someone into consenting to disclosure and if a person does not consent then protected information can only legally be disclosed where one of the other exemptions apply.
The exemptions should enable official receivers to generally carry out their statutory functions as normal, for example where the description in a bankruptcy order reveals a change of gender then the order may be advertised (unless of course there is any stay of advertisement) because the content of the bankruptcy order and requirement to advertise is provided for in the insolvency legislation but a person’s gender history must not be disclosed unnecessarily. So, for example, in asset protection/recovery matters, careful consideration should be given to the question of to which third parties disclosure of a person’s previous gender identity should be made i.e. disclosure should only be on a need to know basis. Furthermore, when revealing a change of gender, e.g. in correspondence with third parties, the official receiver will only be covered by the exemptions if he/she discloses that a full gender recognition certificate has been issued. Potentially, even addressing a letter to a person in their previous name is an offence as this could reveal a change of gender to third parties. So, for example, if a bankrupt changes their gender after the date of the bankruptcy order then notices should not be addressed to them in their “old” name except where there is a clear statutory requirement to do so, e.g. a public examination notice and even then the envelope should only bear the “new” name.
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