Disclosure to Beneficiaries: Trusts Law vs Data Protection Law
13 March 2017
A recent decision of the Court of Appeal in the UK suggests that beneficiaries seeking trust information may be able to get around trust law restrictions by filing a data subject access
request (DSAR) under data protection legislation. This is a significant development for trustees, however, its impact in Jersey may thankfully be limited as our data protection laws specifically recognise the applicable trust law rules limiting disclosure.
In Jersey, the data protection laws include specific DSAR exemptions which mirror applicable trust law provisions restricting disclosure (Article 29 of the Trusts (Jersey) Law 1984). There is no equivalent exemption in the DPA and the DPA makes it clear that DSAR rights apply notwithstanding any rule of law prohibiting disclosure other than where covered by an exemption. As such, trustees in Jersey should be in a better position in defending DSARs from beneficiaries and whilst certain information may still fall to be disclosed if it falls outside the Trust law restrictions, the DSAR option does not present an easy route around longstanding trust law principles.
The trust exemption featured in the Jersey data protection law was lobbied for by the trusts industries precisely to ensure that the limits on disclosure requirements of a trustee could not be avoided by way of a data subject access request, a loophole that the Bahamian Trust case at Court of Appeal demonstrates is capable of being exploited in other jurisdictions.
Trustees will still however need to exercise caution where information is handed over to parties who may not be able to rely on the Jersey law exemptions. It will also be interesting to see if these exemptions are carried over into the new laws, which will be consulted on in 2017 in order to implement the provisions of the General Data Protection Regulation in the Island.