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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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