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DATA-PROTECTION  December 2009

DATA-PROTECTION December 2009

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Subject:

Section 33A of the DPA

From:

Gordon Wanless <[log in to unmask]>

Reply-To:

Gordon Wanless <[log in to unmask]>

Date:

Fri, 18 Dec 2009 14:05:38 +0000

Content-Type:

text/plain

Parts/Attachments:

Parts/Attachments

text/plain (88 lines)

Folks,

Those of you working for public authorities are probably well aware
that the new section 33a that was added to the DPA because of the
introduction of the FOIA has a subsection (2) to it which states :-

"(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 -

a. service in any of the armed forces of the Crown, 
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, 

are also exempt from the remaining data protection principles and the
remaining provisions of Part II."

So this means that paper based personnel files held by a public
authority that are not part of a relevant filing system are exempted
from the subject access provisions and a data subject can not use the
DPA to "force" a public authority to disclose the contents to a
requester.

My first question to you is, I wonder if you, like me, find this very
worrying that a fundamental right has been removed for a data subject
who is an employee of a public authority and wants access to their paper
based personnel file which is not kept in a structured filing system?

My organisation, and I guess your's too, do grant access for an
employee to the contents of their paper based personnel files regardless
of the above.

My second question to you is, if you do grant access, do you document
this under some sort of policy document/procedure or not?

Regards,

Gordon.

Gordon Wanless
Head of Information Governance

T: 0191 203 5484
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