Data protection

Philip Jeffs
Member - 299 posts

Surely a better way would be to ask for comments on the course, and what has been learned, but avoid asking comments about individuals? That way there is no DP issue as no personal details will have been recorded.

If you must ask for comments about tutors maybe it could be as a verbal 'end of course' discussion with a senior and not written down?

I would say that on your current method tutors could ask to see the comments if they refer to one person individually rather than a collective group.

Philip

David Flint
Member - 3 posts

Lisa,

Thanks for your enquiry.

The question that you must ask is whether the comments on the review form constitute personal data of the tutors to which they have a right of access. To constitute personal data the information must be biographical of the tutor to a significant degree and have the tutor as its focus. Recent case law also suggests that the information should be capable of affecting the tutor's right to privacy in some way. The Information Commissioner's most recent guidance indicates that the affect should be a negative one.

In this case the fact that the review forms are directed specifically at the performance of the tutor I would have thought that the basic constituent elements for personal data exist.

However, if the review forms exist only on paper form then even if the information they contain is biographical to a significant degree, have the tutor as their focus and contain information capable of adversely affecting the tutor's privacy the information will not be personal data to which the Tutor has a right of access unless they form part of a structured paper filing system known as a relevant filing system.

The Court of Appeal recently indicated that:

?it is not enough that a filing system leads a searcher to a file containing documents mentioning the data subject. To qualify [as a relevant filing system] under the Directive and the Act, it requires??.a file to which that search leads to be so structured and/or indexed as to enable easy location within it or any sub-files of specific information about the data subject that he has requested? ; and

?it is only to the extent that manual filing systems are broadly equivalent to computerised systems in ready accessibility to relevant information capable of constituting ?personal? data that they are within the system of data protection?.

The most crucial passage from a practical perspective, however, is:

?Parliament intended to apply the Act to manual records only if they are of sufficient sophistication to provide the same or similar ready accessibility as a computerised filing system. That requires a filing system so referenced or indexed that it enables the data controller?s employee responsible to identify at the outset of his search with reasonable certainty and speed the file or files in which the specific data relating to the person requesting the information is located and to locate the relevant information about him within the file or files, without having to make a manual search of them. To leave it to the searcher to leaf through files, possibly at great length and cost, and fruitlessly, to see whether it or they contain information relating to the person requesting information and whether that information is data within the Act bears?..no resemblance to a computerised search.?

You should consider whether the paper file in which the review forms are filed meets these tests. If the review forms are only held on paper then that should be your first step. If the file has the requisite structure then the next step would be to assess whether they are sufficiently biographical and focused to amount to personal data.

I hope this helps.

Regards

David Flint

Partner

Technology, Media and Communications Group

MacRoberts Solicitors

152 Bath Street, Glasgow G2 4TB

Scotland

(Tel: +44 141 332 9988; Fax: +44 141 332 8886)

URL: http://www.macroberts.com

FOR DETAILS OF OUR UPCOMING DATA PROTECTION TRAINING SEMINARS on 23rd & 24th March 2004 contact: marketing@macroberts.com

Anonymous

With poor customer feedback we tend to cascade it down and a manager will look at the situation and work with staff to find a suitable solution.

With complimentary feedback (In particular where one of our branches or an individual has been praised), we see no harm in passing on a copy of the letter content which gives the employee or the branch concerned a morale boost which increases our customer service.