This is a tricky one as you need to apply the Gaskin balancing test! - See
the OIC guidance on third party data. If the witness provided the information
to the HR dept it may be covered by the common law duty of confidence. This
and the fact consent has been withheld would sway you towards non-disclosure.
However, the fact that this information may have a serious effect on the
data subject would sway you towards disclosure. Under Gaskin you have to
weigh these interests against each other and make a judgement.
Document your reasoning so that you can show it to the OIC/Courts .
Without knowing all the facts I can't advise on whether or not you should
disclose - Is the witness also the victim of the harassment? If the claims of
harassment are true then the DS should already know the identity of the
witness and details of the harassment.
Not sure this helps! The OIC have always said these types of cases are for
the courts to decide upon!
Nicola
Nicola McKilligan
Privacy & Information plus
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