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ICO warns employers on subject access requests

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Forthcoming changes to the law will prevent employers, insurers and other organisations from forcing individuals to access personal data held about them by others and reveal the results to the party requesting that information, the data protection watchdog has warned.19 Feb 2014

Changes to the Rehabilitation of Offenders Act, governing the criminal records checking regime, will come into force on 10 March 2014. In a blog post on the website of the Information Commissioner's Office (ICO), the ICO's Jonathan Bamford said that this change cleared the way for the criminalisation of enforced subject access requests under section 56 of the Data Protection Act (DPA).

"This is welcome news," Bamford said in his blog post. "Enforced subject access will be a criminal offence at long last and we will have the tools to help deal with the problem. We will be working to ensure that those who are involved in this unsavoury practice are aware they will be committing criminal offences and we will be preparing ourselves ready to prosecute those who are involved in the practice."

The changes due to come into force from 10 March will shorten the 'rehabilitation periods' for the majority of criminal convictions in England and Wales, meaning that they will be considered 'spent' sooner and need no longer be disclosed for most purposes. Fuller disclosure of cautions and convictions will continue to apply to certain 'sensitive' occupations and activities, while the most serious convictions will remain subject to disclosure for any job.

In a written ministerial statement Jeremy Wright, the Parliamentary Under-Secretary of State for Justice, said that section 56 of the DPA would come into force "shortly after" the changes to the rehabilitation regime began.. Section 56 makes it a criminal offence to require a person to make a subject access request and reveal the result It is the only provision in the DPA which has not yet come into force.

In his blog post, Bamford noted that although enforced subject access requests were typically used to force potential employees to reveal criminal conviction data, the practice had "persisted and spread". Although the ICO had "enjoyed some limited success" in dissuading organisations from using it, the watchdog was now seeing it being used by "organisations as diverse as insurers when dealing with claims and TV production companies when selecting participants for their programmes".

"It is not only a clear perversion of an individual's own rights, with consequences like unwarranted loss of employment opportunities, it also [undermines] important public polices such as the rehabilitation of offenders," Bamford said. "The information provided in a policy subject access response, for instance, is potentially far greater than an individual would ever have to declare to a prospective employer, and would include convictions considered 'spent' under the Rehabilitation of Offences Act."

Copyright © 2014, Out-Law.com

Out-Law.com is part of international law firm Pinsent Masons.

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