I think you have to deal with it on a case by case basis. I don't see
the point of routinely holding references back - it only makes things
worse. Generally employees only go down this route when they are
aggrieved about something so hiding things unnecessarily only stokes the
fire! If you give a reference for someone you need to be able to stand
by it. I say don't write it if you would be embarrassed later! As a
public authority Durant is not much use to me as they would probably get
the unstructured data anyway if they used the FOI legislation. I think
it is easier to be open and honest rather than devious and obstructive.
Just because the legislation allows u to withhold info and gives you a
let out in certain cases there is no obligation on you to actually do
so!
>>> <[log in to unmask]> 11/11/2005 11:11:07 >>>
In a message dated 10/11/05 09:52:13 GMT Standard Time,
[log in to unmask] writes:
> What is the groups view on references when requested as part of a
staff
> personal file?
-------
If the references are held in a manual file it is very likely they
would
*not* have to be revealed if you really wanted to keep them from the
employee.
Bear with me. (Don't worry, it's just a stuffed one!)
Unless personnel files are held in a highly-structured manner, they
will be
exempt from subject access after the Durant case. We must remember
that the
CoA went beyond explaining that the file in that case was not even
personal
data, and described what they thought was meant by "structure" in a
manual file.
My interpretation is that if the documents in one person's file are in
a
different order to those in another person's file, there is likely to
be no
structure. So, say for example there are no indeces on the file and
finding the
references is a matter of picking up the file and leafing through it,
the file is
likely to be exempt from subject access. If, on the other hand, the
references are always at the back of a personnel file - the references
could be part
of a structured system.
Now we all know that this in essence means that the majority of manual
files
(except for housing, social work & education records) will be exempt
from
subject access. Many people feel that the Durant case is wrong and
might be
redundant once the European beaurocrats get their heads round it, but
for the
moment it is the law of the land and (along with Johnson) could/should
be observed.
There is one caveat, however, and that is that agreements between
public
sector employers and the unions may dictate that a personnel file is
made
available on request (within 7 days, I believe) and that redactions are
agreed with
the TU. I am not saying in the particular case that the person is in
the union
or that the national agreement has not been overridden by a local
arrangement
but I am suggesting you look at that area before making a decision on
the
matter.
My own view? If you have nothing to hide, show them the references.
If you
do have something to hide or you would rather protect the source,
refuse. It
is unlikely the person would take you to court to try to force
disclosure.
Possession is everything.
My company policy? All references are open - outgoing and incoming -
and
referees are told this when we write to them. It concentrates the
mind, ensures
they don't say anything they cannot substantiate and if they do make a
genuine
mistake the prospective candidate can challenge the reference and we
can have
it sorted long before we even think about setting them on.
What would I do if I was the employee? I would insist on disclosure of
all
documents related to me, including references, I would quote the old
advice
from the ICO, I would even contact the referees thamselves to ask if
they kept a
copy of what they sent. I would complain to the ICO if I did not get
the
references, then I would look at my bank balance and see if I could
afford to take
you to court without the help of the ICO. Of course I wouldn't have
that
sort of cash available and you'd get away with it.
Ian B
Ian Buckland
Keep I.T. Legal Ltd
(Reg: 3822335)
Please Note: The information given above does not replace or negate the
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need
further explanation of any points raised please contact Keep I.T. Legal
Ltd at
the address below:
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