John
There appear to be three issues here:
1. Policyholders' right to see their claim files
2. Policyholders' right to see loss adjusters reports
3. Confidentiality of loss adjusters reports.
Data subjects have no right to copies of their claim files; only to personal
data contained in them. Although in practice it may be easier just to copy a
claims file, there may be an awful lot in them that is not personal data.
Indeed, following the Durant decision, one can imagine circumstances in
which little if anything contained in a claims file is personal data. Where,
once upon a time, virually anything connected in the slighest way to a data
subject was considered personal data, post-Durant things are very different.
Information about Frank N Stein's claim for a damaged bed is quite probably
not personal data (although information about the practices which Frank and
his wife engaged in which led to the bed getting damaged are likely to be).
And, of course, if the claims file is only in paper form then, post-Durant,
it's more likely not to be even data for the purposes of the Act.
As to the loss adjusters report, if loss adjusters are engaged by you then
they are likely to be data processors (in which case let's not forget all
that other stuff which the DPA requires of you). An SAR addressed to you
will include any personal data processed by loss adjusters. Even if the
paper copy of the loss adjusters report on your claim file isn't data (and
so not subject to the right of access), information contained in an
electronic copy of the report held by the loss adjuster as well as other
manual and electronically-stored information which it holds may constitute
personal data. To the extent that any of it is personal data then, of
course, you are responsible for disclosing it. But, remember, after Durant
there might not be all that much that is personal data.
Don't forget that personal data which consist of records of your intentions
in relation to negotiations with the data subject are exempt from the
subject information provisions so far as disclosure would be likely to
prejudice those negotiations (under Sch 7 para 7).
The confidentiality notice on the front of the loss adjusters reports seems
mainly aimed at unintended recipients rather than at you. Lawyers on the
list will no doubt correct me if I'm wrong but surely the issue of
confidentiality will depend on the conditions (contractual or ascertained
through normal business dealings with loss adjusters) under which you engage
the loss adjusters. It may be open to you to stipulate when and to whom the
contents of reports are disclosed to others (subject, of course, to the
provisions of the DPA).
Ian Mansbach
Mansbachs
Data Protection Practitioners
[log in to unmask]
phone: 0871 716 5060
international: +44 (871) 716 5060
-----Original Message-----
From: This list is for those interested in Data Protection issues
[mailto:[log in to unmask]] On Behalf Of John Keates
Sent: 02 June 2004 15:21
To: [log in to unmask]
Subject: [data-protection] Subject Access Query and Loss Adjusters Reports
I would like any advice anyone can give on an issue we have with regard
supplying copies of reports prepared by Loss Adjusters.
Loss adjusters are independent of our claims function and they prepare
reports dealing with, among other things, how claims should be paid and why
particular payments are to be made. The front sheet of all their reports
contain the following wording:
Confidentiality Notice
This communication & the information it contains :- (A) is intended for the
person(s) or oganisation(s) named above & for no other person or
organisation &, (B) may be confidential, legally privileged & protected by
law. Unauthorised use, copying, or disclosure of any of it may be unlawful
if you received this communication in error, please contact us immediately
by telephone or by fax on the numbers given above. We will be happy to
accept a reversed charge call (call connect).
When we receive Subject Access Requests from customers for a copy of their
claims files I am unsure of the impact the above notice has in terms of
providing loss adjusters reports which may be part of the claim file.
The loss adjusters reports often contain information about our negotiation
stance and would have prejudice those negotiations. Therefore, when
negotiations are in process reports are not released.
Are there any other grounds for not releasing a loss adjusters report that
anyone knows of?
John Keates
> Assistant Manager - Data Protection and Anti-Money Laundering HGISL G
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