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DATA-PROTECTION  January 2007

DATA-PROTECTION January 2007

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Subject:

Re: Are 3rd party interview notes personal data ?

From:

Julie Gibbs <[log in to unmask]>

Reply-To:

Julie Gibbs <[log in to unmask]>

Date:

Fri, 5 Jan 2007 09:52:07 -0000

Content-Type:

text/plain

Parts/Attachments:

Parts/Attachments

text/plain (338 lines)

I agree with Tim and Paul and it reaffirms the ICO code of practice.
The information is accessible at any point if it meets all the criteria,
ie it's personal data related to the subject requesting it and it's not
exempt.  Fortunately, I haven't had to deal with such a request but
Doreen obviously has and her policy has presumably not been challenged.
I would stand by using appropriate exemptions rather than relying on a
policy.

Julie Gibbs
Information Officer
Crewe & Nantwich Borough Council
-----Original Message-----
From: This list is for those interested in Data Protection issues
[mailto:[log in to unmask]] On Behalf Of Tim Turner
Sent: 05 January 2007 08:25
To: [log in to unmask]
Subject: Re: [data-protection] Are 3rd party interview notes personal
data ?

The crucial issue is the one raised by Paul Ticher i.e. is it personal
data?
Having a policy is very helpful in terms of ensuring consistency, but
that
policy can only be framed within the parameters of the law. I may have
misunderstood the previous post, but it seemed to imply that you
wouldn't
let employees have data unless they went to a disciplinary hearing. I
don't
see how a policy would allow anyone to do this.

If an employee asks for personal data, the data is held and it's not
exempt,
no policy can supersedes Section 7. A data controller cannot arbitrarily
say
to its employees "you can't have this data until / unless..." - you can
charge them a fee, make them prove their identity if you really want to
(never succumbed to this temptation with a current employee myself), but
I
don't see how any policy could prevent subject access. So the question
comes
back to the beginning - is it personal data? If it isn't, or more
importantly, if it is someone else's data, they can't have it unless
it's
accessible under FOI. I've certainly refused to give a person
information in
these circumstances, but because I thought that on balance it was data
about
the interviewee, not the person asking for it.

Tim Turner
Data Protection / FOI Officer
Legal and Property Services
Wigan Council


-----Original Message-----
From: This list is for those interested in Data Protection issues
[mailto:[log in to unmask]] On Behalf Of Broom, Doreen
Sent: Thu 04 January 2007 17:22
To: [log in to unmask]
Subject: Re: [data-protection] Are 3rd party interview notes personal
data?

I think that if they were formulating an investigation - then the notes
must
be in one place (probbaly easily identifiable in a file) as someone
would
have to make a decision eventually and most statements are done
electronically anyway. 
When I did DP when we did not hold all HR records electronically and
whenever I had an SAR - sorry we can't oblige as the notes are only held
in
manual format...we don't want to go there.
It surely must be personal data if it is someone making a statement
against
another member of staff.  As I keep banging on - if you have a policy in
place and staff are aware then there can be no repercussions.
Doreen


-----Original Message-----
From: This list is for those interested in Data Protection issues
[mailto:[log in to unmask]] On Behalf Of Paul Ticher
Sent: 04 January 2007 16:58
To: [log in to unmask]
Subject: Re: Are 3rd party interview notes personal data?

I think you have to establish:
    1)    Are the notes data?
    2)    Are the interviewees third parties?
    3)    If not, does any other exemption from access apply?

If the interview notes are held on paper in a working file relating to
the
grievance and are not part of a system (or are not systematically
organised), then in light of Durant they may not be data.  Therefore
there
would be no right of access.

Normally an employee is an agent of the Data Controller, not a third
party. 
So you have to establish whether the interviewees are acting on their
own
account or the organisation's.  A colleague giving evidence about an
incident might well be acting on their own account (especially perhaps
if
they had some leeway over whether to participate or not), while a line
manager explaining their management of the individual is more likely to
be
acting in an official capacity.  In the latter case the line manager
would
probably not be a third party, so the third party exemption from access
could not apply.  In the former case the interviewees could withhold
consent
to the notes being shown; if this refusal is "reasonable" the notes
would be
exempt from access.

It seems to me unlikely that the 'management forecasts', 'negotiations'
or 'legal professional privilege' exemptions from access (see Schedule 7
of
the
Act) could apply, but it may be worth checking.

However, natural justice normally demands that someone should know who
is
accusing them of what.  Even if there is a potential exemption from
access,
I would have thought you would have to have good grounds on which to
deny
it.  For example you might conclude that providing access could be to
the
serious detriment of the interviewees and this outweighed the interests
of
the individual pursuing the grievance in knowing what had been said.


Paul Ticher
0116 273 8191
22 Stoughton Drive North, Leicester LE5 5UB

I hereby require any recipient of this message not to use my personal
data
for direct marketing purposes.


----- Original Message -----
From: <[log in to unmask]>
To: <[log in to unmask]>
Sent: Thursday, January 04, 2007 4:09 PM
Subject: Are 3rd party interview notes personal data?


> If members of our staff are interviewed in connection with a grievance

> concerning another member of staff (A) are the notes of those
interviews
> classed as A's personal data? In other words, is A entitled to see
them?
>
> Hilary Lawrenson, Data Protection Officer National Probation Service -

> South Yorkshire Head Office
> 45 Division Street
> Sheffield, S1 4GE
>
> Tel 0114 276 6911
> Fax 0114 276 1967
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