Observation

Do not overlook Section 7(5)which ties to 7(4).
Also do not overlook who is the legal owner of the reference data provided.
Most referees within a company are giving references on behalf of their
employer not personally as an individual. This may impact any personal
claims to confidentiality.

David Wyatt


> -----Original Message-----
> From: This list is for those interested in Data Protection issues
> [mailto:[log in to unmask]]On Behalf Of Colette Healiss
> Sent: 22 January 2002 10:13
> To: [log in to unmask]
> Subject: Re: Data Subject Access to Confidential References
>
>
> Kit
> With all due respect, and I take your point about progress and openness, I
> do not believe that it is widely understood that the legal status of
> confidential references is subject to subject access rights under the data
> protection legislation.
>
> A clear statement from the party requesting the reference along the lines
> you mention (vis a vis referees being liable under the law, openness, the
> fact that the contents of the reference may be revealed to the subject of
> the reference etc) would in general be useful rule to clarify things and
> help spread understanding of the law in regard to references.
>
> There are grounds for maintaining confidentiality, however, in various
> circumstances, and use of Section 7(4) to support a refusal to disclose to
> a data subject is something which a data controller can take advantage of
> if necessary. Not that this could be general practice as the
> case needs to
> be at the least arguable.
>
>
>
>
>
>
> [log in to unmask]
> Sent by: This list is To:
> [log in to unmask]
> for those interested cc:
> in Data Protection Subject:
> Re: Data Subject Access to
> issues Confidential References
> <data-protection@JISCM
> AIL.AC.UK>
>
>
> 21/01/2002 17:18
> Please respond to
> KITLegal
>
>
>
>
>
>
> In a message dated 21/01/2002 10:11:07 GMT Standard Time,
> [log in to unmask] writes:
>
> << I would have thought that a confidential reference ought to be just
> that.
> I do not see why, where technology has not effected a change in
> the status
> of information, it should suddenly be subject to rights of subject access
> where these did not previously exist . >>
> ------------
> But it has changed, because the law has changed. Personal data in text
> files, manually-written references are now subject to the Act where
> previously they may have qualified for an exemption. References
> written on
> WP prior to the new Act were not always exempt, as one or two data users
> found to their dismay.
>
> Perhaps the discussion can move on if we agree that confidentiality cannot
> be
> guaranteed and therefore we should stop talking about "confidential
> references" and stick to the issue of whether third party identifiers
> should
> be given.
>
> As has been stated on many occasions there are exemptions that apply to
> information that identifies the referee but not necessarily the content of
> the reference (unless this in itself identifies a person). If the
> reference
> is a professional one, given by a previous employer who is a sole
> trader or
> partner in a small partnership, the status of the information may be very
> different to one written on behalf of a corporation or limited company.
>
> >From a personal point of view I would be very suspicious of any very good
> or
> very bad reference where the writer was not prepared to admit to the data
> subject that they wrote it.
>
> Any requests for references from me will ask the person for an honest and
> true, factual and justifiable, reference. I will remind referees
> that they
> can be liable under law for what they write and that we have a policy of
> open
> references - incoming or outgoing. If you can't justify it, don't write
> it.
>
> Ian Buckland
> MD
> Keep IT Legal Ltd
>
> Please Note: The information contained in this document does not
> replace or
> negate the need for proper legal advice and/or representation. It is
> essential that you do not rely upon any advice given without contacting
> your
> solicitor. If you need further explanation of any points raised please
> contact Keep I.T. Legal Ltd at the address below:
>
> 55 Curbar Curve
> Inkersall, Chesterfield
> Derbyshire S43 3HP
> (Reg 3822335)
> Tel: 01246 473999
> Fax: 01246 470742
> E-mail: [log in to unmask]
> Website: www.keepitlegal.co.uk
>
> ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
> If you wish to leave this list please send the command
> leave data-protection to [log in to unmask]
> All user commands can be found at : -
> www.jiscmail.ac.uk/user-manual/summary-user-commands.htm
> all commands go to [log in to unmask] not the list please!
> ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
>
> ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
> If you wish to leave this list please send the command
> leave data-protection to [log in to unmask]
> All user commands can be found at : -
> www.jiscmail.ac.uk/user-manual/summary-user-commands.htm
> all commands go to [log in to unmask] not the list please!
> ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^

^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
    If you wish to leave this list please send the command
       leave data-protection to [log in to unmask]
            All user commands can be found at : -
    www.jiscmail.ac.uk/user-manual/summary-user-commands.htm
all commands go to [log in to unmask] not the list please!
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^