Jamaica Privacy Hub

FIRST SCHEDULE (Section 4) PART | The Commissioner 1.—(1) Subject to sub-paragraph (2), The Governor-General Appointment. shall appoint a person having expertise in the area of information communication technology, data protection or privacy rights, or ¢ other like skills, to be the Information Commissioner, by instrument under the Broad Seal after consultation with the Prime Minister , and the Leader of the Opposition. (2) A person shall be disqualified for appointment under sub-paragraph (1) if the person is—

(a) aMéinister, Parliamentary Secretary or member of either House of Parliament;

(b) a Judge of the Parish Courts, Judge of the Supreme Court or Judge of the Court of Appeal:

(d) amember ofa Local Authority, as defined by the Local Governance Act;

(e} a person who has a financial or other interest in any enterprise or activity which is likely to affect the discharge of the person’s functions as Commissioner;

(f) an undischarged bankrupt; or

(g) a person who has been convicted of any offence involving dishonesty.

(3) The office of Commissioner, or of any staff appointed by the Commissioner (except as provided in paragraph 4(3)) shall not be a public office within the meaning of section 2 of the Constitution of Jamaica. 2.—(1) Subject to the provisions of this paragraph, the ‘tenure of ‘ Commissioner shall hold office for such term not exceeding seven ottice. years as may be specified at the time of the Commissioner’s . appointment, and shall, subject to sub-paragraph (3) be eligible for re-appointment on the expiration of that term. (2) The Commissioner may at any time resign the office by notice in writing transmitted to the Governor-General.

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(3) The office of Commissioner shall become vacant—

(a) upon the expiration of the term for which the Commissioner is appointed;

(b) if the Commissioner resigns or is removed from office under sub-paragraph (6); or

(4) The Commissioner shall in any case vacate the office on completing fourteen years of service as Commissioner.

(5) The Commissioner shall not engage in any other occupation for reward while holding the office.

(6) The Commissioner may be removed from the office by the Governor-General acting on the advice of the Prime Minister after consultation with the Leader of the Opposition, on the grounds that the Commissioner—

(a) has become incapable of effectively performing the functions of Commissioner due to any infirmity of body or mind; or

(b) has engaged in any misconduct,

or for any other cause.

(7) Where advice is given to the Governor-General pursuant to sub-paragraph (6), the Governor-General, after consultation with the Prime Minister and the Leader of the Opposition, shall appoint a tribunal which shall consist of a chairperson and not less than two other members selected from among persons who hold or have held office as a Judge of a court having unlimited jurisdiction in civil and criminal matters in the Commonwealth.

(8) The tribunal appointed under sub-paragraph (7) shall enquire into the matter and report on the facts thereof to the Governor-General and advise the Governor-General as to whether the Commissioner ought to be removed from office in accordance with this paragraph.

(9) The provisions of sections 8 to 16 of the Commissions of Enquiry Act shall apply, with the necessary modifications, in relation to a tribunal appointed under sub-paragraph (7) or, as the context may require, to the members thereof, as they apply in relation to Commissions or commissioners appointed under that Act.

FIRST SCHEDULE (Section 4} PART | The Commissioner ].—(1) Subject to sub-paragraph (2), The Governor-General Appointment. shal! appoint a person having expertise in the area of information communication technology, data protection or privacy rights, or ¢ other like skills, to be the Information Commissioner, by instrument under the Broad Seal after consultation with the Prime Minister , and the Leader of the Opposition. (2) A person shall be disqualified for appointment under sub-paragraph (1) if the person is—

(a) aMinister, Parliamentary Secretary or member of either House of Parliament;

(b) a Judge of the Parish Courts, Judge of the Supreme Court or Judge of the Court of Appeal;

{c) the holder of a public office within the meaning of section 2 of the Constitution of Jamaica;

(d) amember ofa Local Authority, as defined by the Local Governance Act;

(e) a person who has a financial or other interest in any enterprise or activity which is likely to affect the discharge of the person’s functions as Commissioner;

(f) an undischarged bankrupt; or

(g) a person who has been convicted of any offence involving dishonesty.

(3) The office of Commissioner, or of any staff appointed by the Commissioner (except as provided in paragraph 4(3)) shall not be a public office within the meaning of section 2 of the Constitution of Jamaica. 2.—({1) Subject to the provisions of this paragraph, the ‘tenure of ‘ Commissioner shall hold office for such term not exceeding seven Office. years as may be specified at the time of the Commissioner’s . appointment, and shall, subject to sub-paragraph (3) be eligible for re-appointment on the expiration of that term. (2) The Commissioner may at any time resign the office by notice in writing transmitted to the Governor-General.

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(3) The office of Commissioner shall become vacant—

(a) upon the expiration of the term for which the Commissioner is appointed;

(b) if the Commissioner resigns or is removed from office under sub-paragraph (6); or

(4) The Commissioner shall in any case vacate the office on completing fourteen years of service as Commissioner.

(5) The Commissioner shall not engage in any other occupation for reward while holding the office.

(a) has become incapable of effectively performing the functions of Commissioner due to any infirmity of body or mind; or

(b) has engaged in any misconduct,

or for any other cause.

(7) Where advice is given to the Governor-General pursuant to sub-paragraph (6), the Governor-General, after consultation with the Prime Minister and the Leader of the Opposition, shall appoint a tribunal which shall consist of a chairperson and not less than two other members selected from among persons who hold or have held office as a Judge ofa court having untimited jurisdiction in civil and criminal matters in the Commonwealth.

(10) Where the question of removal of the Commissioner from office has been referred to a tribunal appointed under sub- paragraph (7), and the tribunal has advised the Governor-General that the Commissioner ought to be removed from office, the Governor-General shall by instrument in writing remove the Commissioner from office.

(11) Where the question of removal of the Commissioner has been referred to a tribunal under sub-paragraph (7), the

. Governor-General, after consultation with the Prime Minister and the Leader of the Opposition, may suspend the Commissioner s from performing any function relating to the office, and any such suspension may at any time be revoked by the Governor-General and shall cease to have effect if the tribunal advises the Governor- General that the Commissioner ought not to be removed from office.

(12) In this paragraph “office” means the office of Commissioner.

3.—{1) The Commissioner shall be entitled to such emoluments Remuneration. and be subject to such other terms and conditions of service as may from time to time be prescribed by or under any law or by a resolution of the House of Representatives.

(2) The emoluments and terms and conditions of service of the Commissioner, other than allowances that are not taken into account in computing pensions, shall not be altered to the Commissioner’s disadvantage during the period of the Commissioner’s appointment or reappointment, as the case may be.

(3) The emoluments for the time being payable to the Commissioner under this Act shall be charged on and paid out of the Consolidated Fund.

(4) The provisions of the Appendix shall have effect with respect to the pension and other benefits to be paid to or in respect of a person who has held office as Commissioner.

4—(1) The Commissioner may appoint and employ for the Appointment purposes of this Act, at such remuneration and on such terms and of staff.

, conditions as may be approved by the Committee constituted under sub-paragraph (2)}— (a) one Deputy Commissioner; and . (b) such number of other officers and staff as the Commissioner considers necessary for the purposes of this Act.

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(2) The Committee referred to in sub-paragraph (1) shall consist of—

(a) _ the Speaker of the House of Representatives;

(b) the President of the Senate;

(d) the person designated by the Leader of the Opposition as Leader of Opposition Business in the House of Representatives;

(e) the person designated by the Leader of the Opposition as Leader of Opposition Business in the Senate; and

(f) the Minister responsible for finance or nominee.

(3) The Governor-General may, subject to such conditions as the Governor-General may impose, approve the appointment, to the staff of the Commissioner, of any officer in the public service, provided that in relation fo pension, gratuity, allowance and other rights as public officers, such officer shall be deemed to be in the public service while so employed.

(4) The Deputy Commissioner shall perform the functions of the Commissioner during any vacancy in that office or at any time when the Commissioner is for any reason unable to act.

(5) Without prejudice to sub-paragraph (4), any functions of the Commissioner may, to the extent authorised by the Commissioner, be performed by any of the Commissioner’s officers or staff.

Seal of the 5.—{1) The application of the seal of the Commissioner shall be

Commissioner. authenticated by the Commissioner’s signature or by the signature of some other person authorised for the purpose.

(2) Any document purporting to be an instrument issued by the Commissioner and to be duly executed under the Commissioner’s seal or to be signed by or on behalf of the Commissioner shall be received in evidence and shall be deemed to be such an instrument unless the contrary is shown.

Funds. 6. The funds of the office of Commissioner shall consist of fees and other sums r=ceived by the Commissioner in the exercise of the Commissioner’s functions, such sums as may from time to time be placed at the disposition of the Commissioner by Parliament, and such other sums as may lawfully be paid to the Commissioner.

The Data Protection Act, 2020 {No. } 95 7. No action or other proceedings for damages shall be brought Protection

against the Commissioner, or any employee or agent of the from suit. Commissioner for any act done, or omission made, in good faith in

the performance of any functions, or the exercise of any powers,

conferred on the Commissioner by this Act.

PART Il Data Protection Oversight Committee

° 1.{!) There is hereby established a Data Protection Oversight Committee (in this Act referred to as the Committee).

* (2) The objective of the Committee shall be to hold the information Commissioner accountable to the public in the performance of the Commissioner’s functions under this Act.

(3) The Committee shall consist of the following persons appointed as members by the Governor-General, upon the recommendation of the Prime Minister after consultation with the Leader of the Opposition—

(a) aretired Judge of the Supreme Court; (b) an attorney-at-law having expertise in the area of data protection or privacy rights; (c) a person representing the interests of data subjects; (d) a person representing the interests of data controllers; and (e) _ three other persons having expertise in any one or more of the following areas— (i) information communication technology; di) finance; (iii) governance and public administration. (4) The following persons shall not be eligible to be appointed as members of the Committee— (a) amember of— , (i) _ either House of Parliament, or (ii) the Council of a Municipal Corporation, City « Municipality or Town Municipality; (b) a bankrupt within the meaning of the Insolvency Act; or

96 [No. ] The Data Protection Act, 2020 (c) a person who has been convicted of an offence involving dishonesty or moral turpitude.

(5) Aperson shall be eligible to be appointed as a member of the Committee if that person is a person of integrity, capable of exercising competence, diligence, sound judgment and impartiality, in fulfilling that person’s functions as a member of the Committee pursuant to the provisions of this Act.

(6) Subject to sub-paragraph (7) and paragraphs 7 and 8, a person appointed under sub-paragraph (3) shall serve as amember of the Committee for a period of three years and is eligible to be re- appointed for one further period of three years,

(7) A person shall not continue to be a member of the Committee, and shall not be eligible to be re-appointed as a member of the Committee if any circumstances exist which render that person no longer eligible to be appointed as described in sub- ° paragraphs (4) and (5).

2. The functions of the Committee shall be to—

(a) monitor and review the performance of the functions of the Information Commiss ioner;

(b) report to both Houses of Parliament on any matter relating to the performance of the functions of the Information Commissioner;

(c) review the reports laid before Parliament under section 56 and make recommendations thereon to both Houses of Parliament, in the report referred to in paragraph (b); and

(d) perform such other functions as may be necessary for promoting the objective of the Committee under

paragraph 1(2). 3. The Committee—

(a) may investigate any aspect of the operations of the Information Commissioner, or any conduct of the Information Commissioner, or any employee of the office of the Information Commissioner in relation to their functions under this Act;

(b) _ is entitled to take copies of any document in relation to any matter under investigation by the Committee;

information, or provide documents, in respect of any matter relating to the operations of the office of the Information Commissioner or the conduct of any employee in relation to their functions under this Act; and ? (d) for the purposes of an investigation under sub- paragraph (a), shall have the powers, protections and immunities conferred upon a Commission under the . Commissions of Enquiry Act, and the provisions of that Act shall apply to any person summoned by or appearing before the Committee in the same manner as it applies to a person summoned or appearing before a Commission of Enquiry.

4. The Governor-General shall cause the names of the members of the Committee, and any change in membership of the Committee, to be published by notice in the Gazette.

5. The members of the Committee shall elect one of their number to be the chairperson of the Committee.

6. The Committee shall appoint a secretary whose duties shall be to—

(a) attend the meetings of the Committee;

(b) record minutes of the proceedings of the Committee and keep the minutes in proper form; and

7. Amember of the Committee shall be removed from office by the Governor-General, on the recommendation of the Prime Minister after consultation with the Leader of the Opposition, if that member—

(a) is absent, without reasonable excuse, from three , consecutive meetings of the Committee without the leave of— . (i) ithe Governor-General, in the case of the chairperson; (i) the chairperson, in the case of any member other than the chairperson,

98 [No. ] The Data Protection Act, 2020 (b) becomes incapable of satisfactorily discharging the functions of member; or (c) has a mental disorder within the meaning of the Mental Health Act.

8. A member of the Committee may resign office by giving written notice of the resignation to—

(a) the Governor-General, in the case of the chairperson; or (b) the chairperson, in the case of any member other than the chairperson.

9. Documents made by, or decisions of, the Committee may be signed under the hand of the chairperson, or any member of the Committee authorised to act in that behalf.

!0.—(1) The Committee shall meet as often as it considers necessary for the proper conduct of its affairs, but shall in any event meet not less than once per month.

(2) The chairperson, or any member elected by the Committee to act temporarily as chairperson, shall preside at a meeting of the Committee.

(3) A quorum of the Committee shall be four.

(4) Decisions of the Committee shall be by a majority of votes of the members, and the chairperson shall have a casting vote in addition to an original vote, in any case where the voting is equal.

(5) Proper records of all proceedings of the Committee shall be kept.

Il. No action, suit, prosecution, or other proceedings, shall be brought or instituted personally against any member of the Committee in respect of any act done or omission made bona fide in pursuance of the provisions of this Act.

12. Amember of the Committee who has any interest, directly, or indirectly, in any matter before the Committee shall—

(a) _as soon as possible as the relevant facts have come to the knowledge of that member, disclose the nature of the interest at a meeting of the Committee; and

(b) be absent during the deliberations of the Committee, and not take any part in its decision, with respect thereto.

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13. There shail be paid to the Committee from the funds of the Information Commissioner, such remuneration, whether by way of honorarium, salary or fees, such allowances as the Minister responsible for the public service may determine.

14. The Commissioner shall provide to the Committee such resources as the Committee reasonably requires for the discharge of its functions.

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--- APPENDIX TO FIRST SCHEDULE ---

APPENDIX TO FIRST SCHEDULE (Paragraph 3(4)) Pensions and Gratuities Interpretation. 1. In this Appendix “pensionable emoluments” has the same meaning as in the Pensions Act. Entitlement 2.—{1) Where a person holding the office of Commissioner 0 eee retires in pensionable circumstances the person Shall, subject to gratuities, the provisions of this Appendix, be paid pension and gratuity in accordance with this Act in lieu of. any pension, allowance or gratuity which the person may have been granted pursuant to the Pensions Act, (2) A person entitled to a pension or gratuity pursuant to sub-paragraph (1) may, by memorandum in writing to the Govermor- General, elect to forgo the person’s entitlement under this Act and be granted instead such award under the Pensions Act as would be payable under that Act if the office of Commissioner were a pensionable office under that Act.

(3) For the purposes of this sub-paragraph and sub- paragraph (4), a person retires in pensionable circumstances if the person—

(a) retires— (i) on or after completing one term of service as Commissioner; or (ii) by reason of ill health prior to such completion; or (b) has a minimum of seven years service. (4) For the purposes of this Act, a person retires from the office of Commissioner on the ground of ill health if the person— (a) retires on medical evidence, to the satisfaction of the Governor-General, that the person is incapable by reason of any infirmity of mind or body of discharging the duties of Commissioner and that such infirmity is likely to be permanent; or (b) is removed from office, in accordance with paragraph 2(6) of Part I of the First Schedule, for reason of inability arising from infirmity of mind or body, to perform the functions of the office of Commissioner.

(5) A person who, pursuant to paragraph 2(6) of Part I of the First Schedule, is removed from the office of Commissioner for misconduct or for any other cause other than inability arising from infirmity of mind or body or who retired otherwise than in pensionable circumstances may, subject to sub-paragraph (2), be granted by the Governor-General, in lieu of any pension, allowance or gratuity for which the person may have been eligible pursuant to the Pensions Act such pension and gratuity—

(a) as the Governor-General thinks fit; and

(b) not exceeding the pension and gratuity to which the

person would have been entitled had the person retired

in pensionable circumstances from the office of

Commissioner, and, for the purposes of sub-paragraph (6), the date of such removal from office or retirement shall be deemed to be the date of retirement in pensionable circumstances.

(6) Pension payable in accordance with this paragraph

shall be—

(a) charged on and payable out of the Consolidated Fund,

and

(b) paid monthly in arrears with effect, subject to paragraph

4, from the date of retirement in pensionable circumstances and shall, subject to the provisions of this Act, continue to be paid during the lifetime of the person entitled thereto.

3. The rate of pension payable pursuant to paragraph 2 to Rate of any person shall be an annual rate equivalent to the sum of one- pension. half of the person’s pensionable emoluments at the date of retirement and one-three hundred and sixtieth of such pensionable emoluments in respect of each month of service as Commissioner.

4.—(1) Any person to whom a pension (in this paragraph Reduced referred to as the original pension) is payable pursuant to paragraph pension and 2 may, at his option exercisable at his retirement in pensionable ®°"™"*Y: circumstances or within such period prior or subsequent to his retirement as the Governor-General may allow, be paid, in lieu of the original pension, a reduced pension at the rate of three-fourths of the annual rate of the original pension together with a gratuity (in this Act referred to as a commuted pension gratuity) equal to twelve and one-half times one-quarter of the annual! rate of the original pension.

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(2) The option referred to in sub-paragraph (1) shall be irrevocable unless the Governor-General, on such terms as the Governor-General considers reasonable, otherwise permits.

Gratuity on 5.—(1) Where a person dies while holding the office of death. Commissioner, there shall be paid to the person’s legal personal representative a gratuity of an amount equivalent to— (a) one year’s pensionable emoluments; or (b) the commuted pension gratuity for which the person had a right to opt pursuant to paragraph 4 on the assumption that the person retired in pensionable circumstances at the date of the person’s death, whichever is the greater.

(2) Where a person dies while in receipt of a pension pursuant to paragraph 2, there shall be paid to the person’s legal personal representative a gratuity of an amount equivalent to one year’s pensionable emoluments of that person at the date of the person’s retirement or removal from office, from which gratuity shall be deducted any pension or gratuity already paid to that person under this Act or under the Pensions Act.

Pensions to 6. Where a person holding the office of Commissioner dies as dependants in 4 result of injuries received— case of injuries (a) _ in the actual discharge of the person’s duties; received or disease (b) in circumstances in which the injury is not wholly or discharge of. mainly due to or seriously aggravated by the person’s duties. own serious and culpable negligence or misconduct; and (c) onaccount of circumstances specifically attributable to the nature of the person’s duties, while in that office, it shall be lawful for the Governor-General to grant to the deceased officer’s widow, children, parents or other dependants such award as would have been made under the Pensions Act if the office of Commissioner were a pensionable office for the purposes of that Act. Pensions, 7. A pension or gratuity payable under this Act shall not be efc., notto assignable or transferable except for the purpose of satisfying— be assigned. (a) adebt due to the Government; or

(b) anorder of any court for the payment of periodical sums

of money towards the maintenance of the spouse or former spouse or the minor children, of the person to whom the pension or gratuity is payable, and shall not be liable to be attached, sequestered or levied upon, for or in respect of any debt or claim whatever except a debt due to the Government.

8—(1) For the purposes of the Pensions (Public Service) Act, Family the office of Commissioner shall be deemed to be a pensionable Benetits office in the service of Jamaica. Penstons.

(2) Where a person dies while holding the office of

Commissioner or while entitled to a pension under paragraph 2, there shall be paid to the person’s widow a pension at an annual rate equivalent to one-fifth of pensionable emoluments of the person at the date of the person’s death or, if at that date the person was entitled to receive a pension under paragraph 2, at the date of his retirement or, as the case may be, removal from office in accordance with this Act.

(3) Pension payable to a widow pursuant to sub-paragraph (2) shall—

(a) be charged on and payable out of the Consolidated Fund; and

(b) _ be paid monthly in arrears with effect from the date of the husband’s death and shall, subject to the provisions of this Act, continue to be paid during the widow’s lifetime.

(4) Pension payable to a widow pursuant to sub-paragraph (2) shall be without prejudice to any pension to which the widow may be entitled under the Pensions (Public Service) Act.

(5) In paragraph 6 and sub-paragraphs (2) and (3) of this paragraph, references to a widow shall, in the case of a female appointed Commissioner, be deemed to include references to a widower and cognate expressions shall be construed accordingly and similarly, references to a husband shall be deemed to include references to a wife.

9. Where a person retires without a minimum often years service, Gratuities the person shall be granted in respect of that person’s service, the where length commuted pension gratuity for which that person had a right to does NOt. opt pursuant to paragraph 4 if the person had retired in pensionable qualify for circumstances. pension.

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