Data Protection Act (Case ref: 4.2/ Aug '04)
Summary of case
Our member Ms Y made a complaint against a colleague that he had been stalking and harassing her. An internal investigation upheld her complaint. The person complained against (Mr X) resigned during the investigation. He requested a copy of the report under the Data Protection Act 1998.
Ms Y was made aware of the request. She was extremely concerned because she continued to be harassed by her former colleague and had reported this to the police. Advice was sought on whether or not the request made under the Data Protection Act could be resisted.
Key advice provided by Thompsons
The solicitor provided full comments on how the Data Protection Act applies in this type of case. He said:
"The Act regulates the use of personal data that is stored in computerised or structured paper records. The Information Commissioner has been established as an independent body to promote the Act and enforce compliance. In relation to the field of employment, the Information Commissioner has published a series of guidelines known as "The Employment Practices Data Protection Code" ("the Code").
"The Act gives workers and former workers the right to obtain a copy of information that an employer holds on them by virtue of section 7 of the Act. The Code suggests that information which has been gathered in relation to disciplinary hearings and investigations is covered by the Act. Consequently, a worker would be entitled to request a copy of information that had been gathered in relation to any disciplinary hearings that were conducted against them. This is a right that a worker can enforce in the High Court.
"However, there are various exemptions within the Act at section 29 that would entitle an organisation to withhold information from a worker who has made a legitimate request. One of these exemptions specifies that information may be withheld where its release would be likely to prejudice the prevention or detection of crime or the apprehension or prosecution of offenders. The Information Commission considers that there must be a substantial chance rather than a mere risk that the disclosure would cause prejudice in the situations specified above.
"Section 10 of the Act provides that an individual is entitled at any time by written notice to require an organisation to refrain from disclosing information if it would cause or is likely to cause substantial damage or distress to that person or another and that the damage or distress would be unwarranted. There are various exceptions to section 10 such as where the disclosure would be necessary in relation to the performance of a contract. The organisation that has control of the information has 21 days in which to respond in writing confirming or disputing compliance with the request. In the event of non-compliance with a request, an individual is entitled to apply to the High Court.
"The Code states that organisations should be particularly careful where the release of information following a request would reveal the identity of a third party. Ultimately, the Code recommends that an employer should balance the third party's right to privacy against an individual's right to know what information is being held about them.
"In addition to any rights an individual may have to present a claim to the High Court, an application may be made to the Information Commissioner for an order that an organisation is compelled to perform certain acts or refrain from committing acts in relation to personal data that is held on that individual where there is a danger that the Act will be breached or has been breached. Section 13 of the Act states that workers can seek compensation where any damage or distress has been caused as a result of breaches of the Act. In the case of government departments, it is the Secretary of State who will be legally liable if any breaches of the Act are committed."
The solicitor then went on to advise how the application could be resisted in two ways. He commented:
"First, I understand that if the Report were disclosed it would cause considerable distress to Ms Y. This entitles her to request that the Department refrain from disclosing the Report on the basis of section 10 of the Act. This will give the Department 21 days in which to consider whether it will comply with her request. If Ms Y's request is refused then I would advise that she apply to the High Court for an order that the information should not be disclosed. As an extra precaution, she may wish to apply to the High Court for an interim injunction preventing disclosure of the Report until the final resolution of the issue.
"Secondly, I consider that disclosure of the Report to Mr X would be likely to prejudice the prevention or detection of crime or the apprehension or prosecution of offenders as outlined in section 29 of the Act. I understand from the papers that Mrs Y contacted the police on 16th June 2004 in relation to Mr X's behaviour and her belief that she was being stalked by him.
"There is a convincing argument that disclosure of the Report to Mr X is a continuation of the harassment and stalking that Mr X has inflicted on Ms Y as the Report itself suggests that Mr X was obsessively interested in information concerning her. Further, disclosure of the report would provide Mr X with detailed information concerning the allegations that would be brought against him during a criminal investigation. This may well prejudice any police investigation or trial."
The solicitor also indicated that article 8 of the Human Rights Act which guarantees individuals a right to private and family life may be relevant in this case. He went on to suggest that as a preliminary step a letter of claim should be sent to the Department requesting the information is withheld. At a later stage an application to the High Court may be initiated.
Legal Department comment
Clearly the advice provided refers to a particularly distressing case and there is more supportive work for the Bargaining Unit to do other than seek advice on how the Data Protection Act applies. However, the advice provided by the solicitor is comprehensive and will be of use to officials who are approached by members with similar concerns.