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In the instance I had there were many 3rd parties mentioned but it is
the person giving the statement's views which may or may not be accurate
which would also concern me as it could be a vendetta which in the case
I had - it was...
Hey - this coulod go on and on....
D
-----Original Message-----
From: [log in to unmask] [mailto:[log in to unmask]]
Sent: 05 January 2007 10:01
To: Broom, Doreen; [log in to unmask]
Subject: RE: [data-protection] Are 3rd party interview notes personal
data ?
It's also worth mentioning that 7(4) and 7(6) relate to information
about third parties within the document, not provided by the third party
as the third party's statement may be about the requestor and not them
(the third party). As such 7(4) and 7(6) might not even be applicable!
-----Original Message-----
From: Broom, Doreen [mailto:[log in to unmask]]
Sent: Fri 05 January 2007 09:55
To: Gardiner, Lee; [log in to unmask]
Subject: RE: [data-protection] Are 3rd party interview notes personal
data ?
All I can say is - what about Staff Management purposes and intentions
of the employer and the duty owed to the 3rd party.
Glad to have stirred up a hornet's nest...........
D
-----Original Message-----
From: [log in to unmask] [mailto:[log in to unmask]]
Sent: 05 January 2007 09:53
To: Broom, Doreen; [log in to unmask]
Subject: RE: [data-protection] Are 3rd party interview notes personal
data ?
Information may be 'confidential' but it still doesn't mean that it can
be automatically excluded from an access request by virtue of an
organisation's policies.
It is an inherent expectation in investigations into grievances or
disciplinary issues that information will be treated confidentiality
however this does still not get over the basic fact that there may be
occasions when disclosure is legitimate and necessary as part of an
access request, regardless of expectations.
A policy is useful in broad terms but each case needs to be taken on its
individual merits and disclosure made, or not, accordingly. A blanket
policy that stops this flexibility could potentially cause more problems
than it solves.
The fact is neither 7(4) or 7(6) are legal absolutes and in both cases
disclosure remains at the data controller's discretion as there may be
occasions when it is reasonable and justified in the circumstances
(Gaskin) to disclose information that would be expected to be
confidential.
It is entirely possible to consider the points raised at 7(4) and 7(6)
and still decide to release information to the data subject but as I've
already mentioned this needs to be decided on a case by case basis
considering the broader circumstances.
Just my tuppence for a Friday... And as Doreen said TGIF :)
Lee
-----Original Message-----
From: This list is for those interested in Data Protection issues
[mailto:[log in to unmask]] On Behalf Of Broom, Doreen
Sent: Fri 05 January 2007 09:26
To: [log in to unmask]
Subject: Re: [data-protection] Are 3rd party interview notes personal
data ?
Sorry but this has been approved by our lawyers. At the point of a
person giving a statement about another employee - that employee is told
that the information is confidential for the duration of the
investigation. Also, if you look at Section 7(4)(b) and thereafter
S7(6) - In determining for the purposes of subsection (4)(b) whether it
is reasonable in all the circumstances to comply with the request
without the consent of the other individual concerned, regard shall be
had, in particular to-
(a) any duty of confidentiality owed to the other individual
(b) any steps taken by the data controller with a view to seeking
consent of the other individual
(c) whether the other individual is capable of giving consent, and
(d) any express refusal of consent by the other individual.
You could also claim under Schedule 7 - Miscellaneous exemptions under
"Negotiations" - Personal data which consist of records of the
intentions of the data controller in relation to any negotiations with
the data subject are exempt from the subject information provisions in
any case to the extent to which the application of those provisions
would be likely to prejudice those negotiations.
I suppose we could argue the point until the cows come home but this is
how we would treat it.
TGIF
Doreen
-----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: 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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