In theory s33A might indeed apply, but in practice very little of this
these days will be 'manual data' as it will all be in, or attached to
emails, or stored as Word documents. That probably only leaves
handwritten notes and they will be exempt by s33A unless of course they
are held as part of a relevant filing system.
My line on this however (bearing in mind the right is to information not
documents) is that provided the process is conducted properly and in
accordance with natural justice, there should be little if anything for
the data subject to get under SAR over and above what they are given in
order to meet the allegations fairly.
Subject to that however the real issues to apply are s7(4) as much of
this will necessarily be personal data of others, some of whom
(witnesses etc. may be owed a duty of confidence) and of course under
s31 (esp 31(2)(a)(iii)) we should never disclose anything if to do so
would prejudice the process - again comes back to fairness and natural
justice.
Phillip Bradshaw
Information Manager
Democratic Services
Room CY4A, County Hall
EMail: [log in to unmask]
Phone: 029 2087 3346
Mobile : 07890 265987
Fax: 029 2087 3349
Fax: 029 2087 3349
You must be the change you wish to see in the world
-----Original Message-----
From: This list is for those interested in Data Protection issues
[mailto:[log in to unmask]] On Behalf Of Lawrence Serewicz
Sent: 24 August 2010 22:55
To: [log in to unmask]
Subject: [data-protection] s33a and grievance emails
Dear All,
We have had a series of SARs asking for the emails between various
officers conducting grievance investigations. All the grievances cover
a number of situations, most have recently focused on the emails
exchanged between the line manager, the line manager's manager and the
relevant officers from HR.
The aggrieved officers usually make an SAR and FOI request for
information seeking access to all the emails exchanged by the officers
mentioned above and any policies, reports, or briefings covering the
relevant grievance issue.
I was wondering if s33a (2) of the DPA would apply in this case.
(2) Personal data which fall within paragraph (e) of the
definition of "data" in section 1(1) and relate to appointments or
removals, pay, discipline, superannuation or other personnel matters, in
relation to
(b) service in any office or employment under the Crown or under
any public authority, or
(c) service in any office or employment, or under any contract
for services, in respect of which power to take action,
or to determine or approve the action taken, in such matters is vested
in Her Majesty, any Minister of the Crown, the National Assembly for
Wales, any Northern Ireland Minister (within the meaning of the Freedom
of Information Act 2000) or any public authority,
I suppose the relevant question is whether the emails or any of the
related paper work falls under the definition of data in paragraph (e)
of section 1(1). I suspect that they do not fall within that
definition.
Thinking this through, I am uncertain as to what files this could cover.
I can see a situation where a document is created, for example an
appointment, pay, or disciplinary document, and one copy is printed and
placed in an employee's file and another is filed within the relevant
service file (but no electronic copy is retained.) How often, though,
is this going to happen? I can imagine that a number of people may
indavertently retain copies, the officer preparing the report, the PA to
the Head of HR who manages the files, the legal officer developing the
superannuation reports.
In the case of emails, between officers relating to these matters, I am
not sure how s33a (2) could be applied. I think there could be a strong
argument to rely upon the arguments set out around Durant (the email
mentions the relevant officer but is not about them).
If 33a revolves around paragraph (e) of section 1 (1), I am not sure how
that would be applied as more and more records are created and held
electronically. If they are not held electronically, they are likely to
be held in a relevant filing system, unless in a basic chronological
storage system ie all the files from march 2005. Unless one organises
all the disciplinary cases or remuneration cases by chronological data,
they are likely to fall within a relevant filing system as it is human
nature to file by someone's name when dealing with personal information.
The key issue of the relevant filing system being "relevant filing
system" means any set of information relating to individuals to the
extent that, although the information is not processed by means of
equipment operating automatically in response to instructions given for
that purpose, the set is structured, either by reference to individuals
or by reference to criteria relating to individuals, in such a way that
specific information relating to a particular individual is readily
accessible.
If the file is chronological say each new grievance file is placed on
top of the next so that the most recent is at the top and the oldest is
at the bottom. However, that would likely be readily accessible unless,
of course, one has hundreds of grievance cases or remuneration cases
every month and every year.
I would be interested in to know how others would approach the issue of
emails and whether s.33A would be applicable.
Best,
Lawrence
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