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Disclosure to private eyes sometimes legal, says privacy watchdog

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Internet Security Threat Report 2014

Organisations should not hand over employees' personal details to private investigators except in very limited circumstances, the Information Commissioner's Office (ICO) has warned.

The handing over of personal information is likely to be a breach of the Data Protection Act (DPA) in most cases but if some strict conditions are met, the exchange of information can sometimes be legal, the guidance said.

Private investigators are hired not only by insurers investigating fraud and by debt collectors, but also to trace missing friends or relatives or the beneficiaries of wills.

The ICO said that in most cases the (DPA) will prevent organisations from handing out details.

"[The Act] generally restricts disclosure of personal information to third parties unless an exemption applies," said its advice. "Customers and employees will usually have an expectation that their information will not be disclosed to third parties without good cause."

The ICO said that a danger was the 'blagging' of information, where people try to obtain personal information from organisations by deception. "[This] is part of an illegal trade in personal information as highlighted in the Information Commissioner’s 2006 report “What Price Privacy?”. A private investigator with a legitimate request will be open about their activity and will not need to resort to blagging," it said.

The ICO said that it was a principle of the DPA that people are told when their information is gathered how or when it will be disclosed.

"Disclosures to private investigators... are unlikely to be included in the information given to individuals and therefore these disclosures are unlikely to be in their reasonable expectations and may be unfair," it said. "However, the disclosure can still take place provided that there is no overriding duty of confidence in the particular circumstances, the purpose that the information will be used for is in the legitimate interests of the individual and will not prejudice them in any way and the organisation subsequently informs them of the unexpected disclosure."

The ICO said that there will be some rare circumstances in which organisations can pass on information, though.

"In some limited cases it may be possible to disclose personal information to a private investigator where an exemption does not apply," it said. "This will be where a disclosure to the investigator is in compliance with the good information handling principles contained in the Act and in particular it is fair and lawful and not incompatible with the purposes that the information were originally collected for."

The advice says that organisations are entitled, but not compelled, to give out information if the investigator is acting for people involved in litigation. "The organisation should subsequently inform the individual that their information has been disclosed to a private investigator for these purposes," it said. A similar exemption from the DPA exists with regard to the detection or prevention of crime.

The ICO said that organisations should always insist on written requests for information, should inform the person whose information is being asked for of the request and record all actions in relation to it.

The ICO also said that private detectives themselves should be careful not to disclose more information than is necessary to the organisation when making their request, that they hold personal information and must not unnecessarily disclose that.

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