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 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:

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Inkersall, Chesterfield
Derbyshire  S43 3HP 

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