Commentary on provisions of Act Section 3: Meaning of "electronic data" and "excepted electronic data"
This section sets out the scope of the applications and orders in relation to material that can and cannot be specified or described in the application or order, by defining "electronic data" and "excepted electronic data" and related terms.
	"Excepted electronic data", which cannot be specified or described in an application or order, includes data that is subject to legal privilege which is defined in subsection (6).
	"Excepted electronic data" also includes confidential personal records. A personal record is defined in subsection (7) as being a record concerning any individual, living or dead, that could identify the individual and which relates to their physical or mental health (e.g. their medical records), spiritual counselling or assistance given to them, and/or counselling or assistance given to them for the purpose of their welfare. Such records are confidential if created in circumstances giving rise to an obligation of confidentiality to the person to whom they relate, e.g. medical records, and if this obligation continues to be owed. Personal records held subject to a restriction on disclosure, or an obligation of secrecy, contained in an enactment are also confidential personal records.
	Subsection (4) further limits the kinds of electronic data that can be specified or described in applications and orders in certain circumstances by providing that, if the overseas production order is sought against a person who is a telecommunications operator, communications data is to be treated as "excepted electronic data". "Telecommunications operator" and "communications data" are given the same meaning as in the Investigatory Powers Act 2016.
	Where an application for an overseas production order is made for the purposes of a terrorist investigation (other than a terrorist financing investigation), subsection (5) operates so as remove the restriction on specifying or describing confidential personal records created by subsection 3(b). This reflects the equivalent domestic production order regime for terrorist investigations under the Terrorism Act 2002 (and "terrorist investigation" and "terrorist financing investigation" have the same meaning as in that Act).