I have a scenario with regard to your para 7 below "s56 DPA". Hypothetically, lets say the following situation has arisen:-
"A public organisation (Org A) who is not an "authorised body" to carry out CRB checks but commissions a third party (Org B) to carry those checks out on behalf of Org A. Org B receives the certificate and there is substantial trace information that appears on the check.
Org A (during the recruitment process) informs the applicant that checks will be carried out including them signing a separate consent form agreeing that Org A can pass personal data to Org B for the checking.
However, since the applicant has also received the same info back from the CRB as Org B has received, he has refused to hand it over to the prospective employee Org A. So Org A is asking Org B to provide them with the "certificate" information instead"
Question 1. under DPA would Org B be breaching any principles by passing the "certificate" information to Org A - despite the applicant's objection? IF YES, what are the ramifications on Org B.
Question 2. What would you put in the Notice in future to negate this issue from appearing again in the future? One way in my opinion would be that Org A provides this notice/statement in their application form which would also negate the need for a "separate" consent form having to be signed by applicant.
Many thanks
Trish
Trish-louise Bailey
Audit & Assurance
(Information Governance includes: Data Protection & Privacy, FOI, Information Security, Information Sharing & Confidentiality, Records & Information Management, Information Quality & Assurance)
Telford & Wrekin Council
Civic Offices
Coach Central
Telford
TF3 4HD
www.telford.gov.uk
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-----Original Message-----
From: This list is for those interested in Data Protection issues [mailto:[log in to unmask]] On Behalf Of Chris Brogan
Sent: 22 November 2010 12:55
To: [log in to unmask]
Subject: Re: Screening companies using publicly available information
A posting very dear to my heart and I would ask that you all read mine to the end because I will be asking for your input into a project.
My submission is that just because the information is in the public domain does not mean that you can process it. To satisfy the 1st principle you have to have satisfied one of the conditions in schedule 2 and 3 if sensitive personal data.
If you can satisfy one of the conditions in schedules 2/3 the processing has to be lawful, reasonable and proportionate. Article 8 Human Rights Act. (DPA also has some input.)
Many of these screening companies use facebook, friends reunited etc. Last time I checked these social databases they had a clause stating that the information could not be used for commercial purposes. I submit that screening is a commercial basis so to use the information for screening is a breach of the contractual agreement with the social databases; therefore a breach of contract law, therefore unlawful processing.
County court judgments are often checked. What relevance does this have to a person applying for a job as a driver, caretaker etc? I can begin to see the relevance if the position is financial.
The director's database is a very useful source of information. It provides current and past directorships covering five years, date of birth, nationality. The director's database is compiled for the purpose of complying with the Companies Act 2006 and prior to that other companies acts. It is there so that you can check to see if a person is or has been a director of a company(s). Screening companies use it to profile an individual. That I submit is a breech of principle 2. I further suggest that the argument is almost identical to the electoral roll argument.
Many screening companies provide a Basic Disclosure check. (Criminal record Check.) Section 56 DPA which will come into force when Part V of the Police Act 1997 takes full effect, indicates that except in certain circumstances this will be a criminal offence. Over the years it has been referred to as "Enforced Subject Access." Section 27 of the Safeguarding Vulnerable Groups Act 2007 which took effect in October 2009 has almost identical wording apart from the "certain circumstances."
Just because someone gives you permission to do something does not mean to say that you can do it. UK employment Law is at odds with the Article 29 working party group on the question of Consent. See Data Protection Law and Practice Second Edition by Rosemary Jay; Paragraph 3-39 page 93. There is a third edition but despite me promoting this 3rd edition on a number of booksellers websites Rosemary decided for reasons best known to herself not to send me an autographed copy leaving me wandering in the fog of legal uncertainty.
Some years ago Elizabeth France commissioned Professor Charles Oppenheim of Loughborough University to look at open sources of information to see if they were being used for purposes other than were intended. In a nutshell the conclusion was that they were. Elizabeth made a recommendation (which died a death) that it should be stopped. Her submission incidentally came out at almost the same time that a Home Office paper was published encouraging companies to know their customer and recommending the use of databases that Elizabeth wanted to stop.
Richard Thomas some years later told me that this recommendation from the ICO was in the fridge on the back shelf. In a non attributable discussion some months ago it was suggested by an ICO official that this project may be resurrected.
Now my request for help.
I am on the committee that is to review the BS 7858 2006 standard for the British Standards Institution. We meet on Monday the 29th November. This standard prescribes best practice with regard to screening Security staff but is applicable to all types of pre-employment screening.
They have invited me on to this committee because I was somewhat critical of the last version that they published. My arguments against are summarized above.
Now I would be happy, subject to the permission of the moderators and the contributors, to bring your views to the committee's attention. If you feel that my submission is flawed in any way (do bear in mind it is just a précis of a very long paper) then please let me know where and why and I will bring that to their attention also.
I look forward to hearing from you.
Chris Brogan MA LLM FSyI
Managing Director
Security International Ltd
130 St Johns Road, Isleworth, Middlesex TW7 6PL, UK
Tel: +44 20 8847 2111 Fax: +44 20 8847 1852
Registered in England & Wales No. 1322074
Registered Office: 11 Loveday Road, London W13 9JT
www.securitysi.com
Please visit my blog
https://chrisbroganassociates.wordpress.com/
-----Original Message-----
From: This list is for those interested in Data Protection issues [mailto:[log in to unmask]] On Behalf Of Marchini, Renzo
Sent: 22 November 2010 09:40
To: [log in to unmask]
Subject: Re: Screening companies using publicly available information
Noted. but perhaps the employment context (and ICO's views on it) is helpful by analogy!
R
Renzo Marchini
Dechert LLP
+44 (0) 20 7184 7563 direct
+44 (0) 20 7184 7001 fax
[log in to unmask]
www.dechert.com
-----Original Message-----
From: This list is for those interested in Data Protection issues [mailto:[log in to unmask]] On Behalf Of Matt Morrison
Sent: 22 November 2010 09:38
To: [log in to unmask]
Subject: Re: [data-protection] Screening companies using publicly available information
Thanks Renzo, though it isn't for employment purposes - I don't want to go
into too much detail as I am trying to gather more information at the
moment.
I just want to check the principle of companies that use publicly available
information in this way - my main concern being around notification to
subjects.
Matt
--On 22 November 2010 04:30 -0500 "Marchini, Renzo"
<[log in to unmask]> wrote:
> Agreed. There are a few points:
>
> 1. Only screen when justified by the position being recruited for (I am
> assuming you are talking about employment) - principle 3. 2. Inform data
> subject what screening is going on - principle 1, part II (paras 2 and 3).
> 3. Treat what is found on social networking sites with scepticism
> (principle 3 again), but nothing inherently wrong with doing this. 4. Be
> careful re discrimination laws - you will become aware of race, marital
> status, and so on. 5. Subjects can be informed in the employment
> application form. (In the Financial services world where I advise a lot,
> there is sometimes a specific "consent" form provided to explain what
> will be checked and how.)
>
> Some of these issues are covered in the Employment Practices Code by the
> ICO (section 1.3 on vetting).
>
> Nothing changes, I think if a service company is doing this for you; they
> are your data processor. So remember Principle 7 and put a contract in
> place etc.
>
> Renzo
>
>
> Renzo Marchini
> Dechert LLP
> +44 (0) 20 7184 7563 direct
> +44 (0) 20 7184 7001 fax
> [log in to unmask]
> www.dechert.com
>
> -----Original Message-----
> From: This list is for those interested in Data Protection issues
> [mailto:[log in to unmask]] On Behalf Of Matt Morrison Sent:
> 22 November 2010 09:06
> To: [log in to unmask]
> Subject: [data-protection] Screening companies using publicly available
> information
>
> Hi all
>
> I'm after opinions about screening companies that use publicly available
> information, for example - entering a surname and address into a piece of
> software that then matches that data against other publicly available
> information that will then give you a profile.
>
> My feeling is that this is a clear use of personal data and the subjects
> should be notified, but am having trouble convincing others. Their
> argument is that all the information is in the public domain so there is
> no invasion of privacy.
>
> Any thoughts welcome.
>
> Thanks
>
> Matt Morrison
>
> Information Rights Officer
> University of Bristol
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