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DATA-PROTECTION  November 2010

DATA-PROTECTION November 2010

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Subject:

Re: Screening companies using publicly available information

From:

Paul Ticher <[log in to unmask]>

Reply-To:

Paul Ticher <[log in to unmask]>

Date:

Tue, 23 Nov 2010 16:14:43 -0000

Content-Type:

text/plain

Parts/Attachments:

Parts/Attachments

text/plain (459 lines)

Anything to do with CRB checks must first comply with the CRB Code of 
Practice; if it does, it is very likely to comply with DPA requirements.

Memory slightly hazy and no time to look it up at present, but I believe 
there are only two kinds of organisation that can make CRB checks: those 
that have registered to do it for themselves (which you can only do if you 
make more than a certain number of checks a year), and those that are 
registered to do it as umbrella organisations, on behalf of others.  Any 
other situation would contravene the Code of Practice.

I would have thought that an umbrella organisation would be a data 
processor, because they are not doing the check for their own purposes, but 
on behalf of the prospective employer.

Therefore I can't see how the situation described has arisen.  There is no 
question of consent from the individual.  You tell them: 'we will carry out 
a CRB check'.  The fact that a third party actually carries it out is 
immaterial, and the umbrella organisation should provide the full 
information to you as a matter of course.  The interpretation of a CRB check 
must be up to the employer, because adverse information does not necessarily 
lead to disqualification from employment; it depends on whether it is 
relevant to the post.  (If my memory of the Code is wrong, I apologise.)


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


----- Original Message ----- 
From: "Bailey, Trish" <[log in to unmask]>
To: <[log in to unmask]>
Sent: Tuesday, November 23, 2010 2:01 PM
Subject: Re: Screening companies using publicly available information


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

em:   [log in to unmask] or [log in to unmask]
tel:    01952 382537
mb:   07528 969455


-----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
> [log in to unmask]
> 0117 3317751 (ex.17751)
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Matt Morrison

Information Rights Officer
University of Bristol
[log in to unmask]
0117 3317751 (ex.17751)

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