I think the most important issue here is not the content of the reference
but whether the referee objects to being identified from the information
they have included in the reference, if it is disclosed to the data subject.
If the referee has made it plain he doesn't want to be identified, the data
controller should look at the information in the reference to see if it can
be disclosed without identifying the referee. If the opinions contained in
the reference make the identity of the referee obvious the data controller
should try to block out this type of detail.
Other factors may apply, eg, there is only one reference, so the data
subject would know the author even if the content is anonymised, or as with
Charles' response other referees have given the data subject a copy of what
they have written so it is obvious who has written the one of which they
haven't had a copy.
In the end, it is for the data controller to decide which way to go - they
are not under any obligation to respect the referee's desire for anonymity -
a delicate balancing act between data subject's rights and the referee's
desire for confidentiality is required.
Stuart Lynch
Stuart Lynch Consulting
Training/Consultancy in
Privacy/Information Protection
01704 870365
mailto:[log in to unmask]
-----Original Message-----
From: This list is for those interested in Data Protection issues
[mailto:[log in to unmask]]On Behalf Of rosepattenden
Sent: 18 January 2002 20:33
To: [log in to unmask]
Subject: Data Subject Access to Confidential References
Has anyone found support in the 1995 EU directive or in the Parliamentary
debates to support the Information Commissioner's interpretation of s. 7(4)
to allow a confidential reference to be withheld by the recipient
institution only where (1) the the identity of the author of the reference
or (2) information about someone other than the author and the data subject
is discoverable from the reference?
S. 7(4) states "Where a data controller cannot comply with the request
without disclosing information relating to another individual who can be
identified from that information, he is not obliged to comply with the
request [unless certain conditions apply e.g. it is reasonable in all the
circumstances to comply without the individual's consent]"
S.7(5) states that s.7(4) "includes a reference to information identifying
that individual as the source of the information sought by the request".
What is there to stop s.7(4) being interpreted to require a reference to be
withheld because the author's opinion can be discovered from the reference?
Isn't that "information relating to another individual"?
Rosemary Pattenden, UEA, Norwich
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