Richard,
Had this very situation with an internal investigation which mixed alleged
non-criminal and criminal matters together.
The officer involved learned of the investigation and applied for subject
access.
An exemption could be claimed for the ongoing criminal matters under
investigation, but could not be claimed for the non-criminal internal
disciplinary matters. Even though the investigation was still ongoing.
This situation generated the very debate you are describing, with
considerable consternation caused to the investigating officers and, as is
many of these circumstances I suspect legal opinion was sought.
If there was an ability to deny access to internal disciplinary matters, do
you not think it more likely that the confidentiality would break down on a
more regular basis, knowing access could be refused?
Do you think the confidentiality of such investigations is maintained more
effectively because there is no exemption to access?
Which answer to the two questions above is the most supportive of
fair, just and effective internal disciplinary investigations?
Which answer is likely to lead to breaches of confidentiality as a means of
putting pressure of the accussed or used in power plays against other
parties?
Ian W
----- Original Message -----
From: "Richard Burrow" <[log in to unmask]>
To: <[log in to unmask]>
Sent: Monday, February 05, 2001 2:17 PM
Subject: Re: Subject Access - Disclosure
> >
> >
> > Both I believe. Surely though as in the previous conversation there is
an
> > exemption on confidential references and therefoer if the statements
were
> > given on a confidential basis then that person has the right to object
to
> > their statement being disclosed. I was not aware that all
> > statements had to
> > be produced at a disciplinary hearing.
> >
>
>
> Looking at this from an HR perspective, but with DP interests, I have a
> slightly different question. When an alleged or suspected act of
misconduct
> has occurred, there is normally an investigation before the decision is
> taken to hold a disciplinary hearing. At this stage, the alleged
miscreant
> may not be aware of the investigation, and the employer may have very good
> reasons for wanting him/her to remain unaware, until the investigation is
> complete. EG, there are stock shortages; the employer suspects A, B or C,
> but wishes to gather evidence to point conclusively at one before
launching
> formal proceedings. the invetigation may well include taking statements
from
> others. If the suspect becomes aware of the investigation, or suspects,
> does he have the right to demand disclosure of all the evidence that is
> being accumulated? is this not equivalent to the Police telling a suspect
> he is under suspicion, and allowing him to destroy the evidence or cover
his
> tracks?!
>
> I agree that it would be very unusual for the suspect not to have the
right
> of access to all the evidence being used in a disciplinary hearing, but
> logic suggests a different situation ought to prevail during the
> investigation. Or is the solution to hold the information at that
> investigatory stage in a manual file that is not structured in such a way
as
> to fall within the act?
>
> Richard Burrow
> Assistant Director of Human Resources
> University of Newcastle
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