Data Protection in a Workplace Context

Layout of Presentation

• Background to Data Protection• Role of Data Protection Commissioner• Principles of Data Protection• Key Responsibilities of Data Controllers• Key points of information

Data Protection: Background

• Human Right to Privacy• Unenumerated right under Irish

Constitution• Explicit right under European

Convention on Human Rights ECHR Act 2003

• EU Data Protection Directives

EU & Irish Legislation• Data Protection

Directive 95/46/EC• Electronic Privacy

Directive 2002/58/EC

• EUROPOL etc

• Data Protection Acts 1988 & 2003

• EC Electronic Privacy Regulations 2003 (SI 535/2003)

• Corresponding Acts• Good Friday

Agreement• Disability Act 2005

Definitions• Data

Includes automated and structured manual data

• Personal Data Data relating to a living identifiable individual

• Sensitive Personal Data (more protection) Racial/ethnic origin; political opinions;

religious/philosophical beliefs; trade union membership; health; sexual life; criminal record

Definitions• Data Controller

a person who controls the contents and use of personal data

• Data Processor A person who processes personal

data on behalf of a data controller

Layout of Presentation• Background to Data Protection• Role of Data Protection

Commissioner• Principles of Data Protection• Key Responsibilities of Data Controllers• Key points of information

Role of the Data Protection Commissioner • Ombudsman Role: resolution of disputes between

data subjects and data controllers or processors • Enforcer Role: compliance by data controllers &

processors• Educational Role: Promotes DP rights and good

practice• Registration Authority: obligation on major

holders of personal data to be placed on public register

How does DPC fulfill role?• Investigations/Audits

Arising from complaints On own initiative

• Maintains public register• Codes of Practice• Guidance booklets, website,

presentations, advice, Annual Report

Penalties• Fine of up to €100,000• Court may order deletion• Enforcement notice prohibiting

processing• Data subject could pursue civil action

for damages under section 7 of the Act

The Data Protection Rules1. Fair obtaining &

processing• Consent

2. Specified purpose3. No disclosure

• unless “compatible”

4. Safe and secure

5. Accurate, up-to-date6. Relevant, not

excessive7. Retention period8. Right of access

Beginning

Getting the Data

Middle

While you have the data

End

Disposing of data

Responsibilities on Data Controllers at the different stages

Beginning

Getting the Data

Middle

While you have the data

End

Disposing of data

Inform and get consent

Justification to process

Respond to access requests

Specify purpose

Only gather what is required

Keep accurate

Keep secure and dispose securely

Disclose only if compatible or allowable exception

Have a retention policy

Beginning

Getting the Data

Middle

While you have the data

End

Disposing of data

Inform and get consent

Justification to process

Respond to access requests

Specify purpose

Only gather what is required

Keep accurate

Keep secure and dispose securely

Disclose only if compatible or allowable exception

Have a retention policy

Beginning

Getting the Data

Middle

While you have the data

End

Disposing of data

Inform and get consent

Justification to process

Respond to access requests

Specify purpose

Only gather what is required

Keep accurate

Keep secure and dispose securely

Disclose only if compatible or allowable exception

Have a retention policy

Layout of Presentation• Background to Data Protection• Role of Data Protection Commissioner• Principles of Data Protection• Key Responsibilities of Data

Controllers• Key points of information

Key Responsibilities• Keep Information Accurate• Disclose only if compatible with purpose for

which given• Keep secure • Have a retention policy• Dispose and retain in line with retention policy• Respond to Requests for Access/Deletion• Manual data requirements from 24 October

2007

1. Accurate

• Good business practice• Best achieved at point of collection• Ongoing requirement if intended to

be used.• Ask the data subject if needed

2. Non-Disclosure• General rule – no

disclosure for different purpose

• Exceptions made, to balance other interests of society

• Stricter conditions for sensitive data

• Main exceptions: Investigation of crime Collection of taxes Security of the State Protect life & limb Required by Law Intl Relations Consent

2. Non-Disclosure• The Data Controller should have a

policy in place to determine how requests for data from third parties are handled.

• This policy should be consulted by appropriate staff members

2. Non- Disclosure -Data Transfer• Data Controller to Data Processor

Must have contract in place: Data Controller remains responsible

• International Data Transfers ‘white list’ countries Model Contracts Binding Corporate Rules Exceptions: individual consent etc (avoid for regular

transfers)

3. Keep secure• Internal Access controls– physical,technical, • Tracking of activity on files– to see if

appropriate• Internet Connectivity/networks -anti-virus

software/firewalls/encryption• Access- need to know and relevant to

purpose• Third party interception

3. Keep secure• Accidental disclosure to third parties, PC

in public area, non-secure fax• External-robust encryption, online forms,

technical measures• Audit trails, reviews, logs, unusual events• Manual Files !• Individual is the biggest risk- NB Training

4. Retention Policy• Legal obligations to hold data?• Customer files

Do you need to hold all that data?

• Personnel files Revenue requirement?

• Must have policy thought through Defend retention as necessary for

purpose.

5. Follow Retention Policy• A method appropriate to each

organisation to review files• Assign Responsibility• Reporting structure• Delete personal data that is outside

terms of policy.• Keep a record of deletions

6. Right of Access

• A fundamental right granted to individuals as a means of granting them control over how their data are processed – transparency

• Applies to all manual and electronic records in existence at the time of receipt of an access request – regardless of when the record was created.

6. Right of Access• Every person has the right to access their data held

by any organisation subject to very limited exemption outlined in Sections 4 & 5 of the Data Protection Acts

• Standard maximum fee of €6.35. Must reply within 40 days or indicate reasons why cannot comply

• Commissioner takes this right very seriously and is now using legal enforcement powers to enforce rights

6. Right of correction/erasure• Section 6 of the Act• Data Subject makes a written request• Personal data must be:

Corrected, if inaccurate; or Deleted, if should not be held.

• Data Controller has 40 days to respond• No fee

7. Manual data • Manual data on file on October 2003

has been exempt from some rules until 24 October 2007 section 2 (identity of Data Controller,

purposes of processing, any disclosees) sections 2A (legitimate processing) and

2B (sensitive data) – see over All other provisions – including right of

access and correction – apply already

7. Manual Data -Process Fairly

One of these conditions required: Consent Legal obligation Contract with individual Necessary to protect vital interests Necessary for a public function

(Justice) necessary for ‘legitimate interests’

7.Manual Data - Process Sensitive Data fairlyOne of these additional conditions is required Explicit consent Necessary under employment law To prevent injury or protect vital interests Process the data of members/clients of

non-profit orgs. Legal advice For Medical Purposes Statutory function

Layout of Presentation

• Background to Data Protection• Role of Data Protection Commissioner• Principles of Data Protection• Key Responsibilities of Data Controllers• Key Points of Information

Key Points of Information• Workplace Monitoring• Biometrics in the Workplace• Internal Directories• Monitoring outside of Workplace• Interview/Exit Interview Notes• References• Access to appraisal forms

CCTV/Email/Internet monitoring• organisations have a legitimate interest

to protect their business, reputation, resources and equipment.

• acceptable usage policy is key• Make employees aware of monitoring

CCTV/Email/Internet monitoring (Ctd)• Access to any material being monitored

needs to be strictly controlled• Only access/disclose for uses indicated• E.g. If CCTV for security, can only be

accessed and disclosed for that purpose

Biometrics in the Workplace• Proportionality• Section 2(1)(c)(iii) states that data•  “shall be adequate, relevant and not

excessive in relation to the purpose or purposes for which they were collected or are further processed.”

• Assess the need for a system and evaluate the different types of system before introduction.

Biometrics in the WorkplaceWhat are the considerations:• Environment. The nature of the workplace may require

high levels of security. • Purpose. Can the intended purpose be achieved in a less

intrusive way? • Efficiency. Ease of administration may necessitate the

introduction of a system where other less invasive systems have failed, or proved to be prohibitively expensive to run.

• Reliability. a system may be justified as long as other less invasive ones have been assessed and reasonably rejected.

Monitoring outside of Workplace• Same general principles apply• Must be proportionate and not

intrusive into privacy• Employee should be aware that

could occur• Right of access to material applies

Internal Directories• A photograph is sensitive data• Any proposal to have a corporate directory

including photographs should be discussed with employees

• Explicit consent not as relevant in workplace• Any requests from employees for the removal of

images must be accepted.• Legitimate interest of employer?• Inform all employees that photographs must not be

used for any other purpose

Interview/Exit Interview Notes• Must be relevant and necessary • Accuracy. Relevance• Opinion –v- Fact.• Available as part of an Access Request.• Third party details removed?

References• References obtained may be provided to

the person as part of the response to a subject access request, unless in confidence. Even then if fundamental rights of the person take precedence then release

• Be able to stand over data.

Access to appraisal forms

• Typically made available to staff as part of process

• Where not, staff likely to have a right of access

General points of advice• Appropriate data retention policy in place in

relation to spent disciplinary notices on file• Be clear as to the basis on which an

employee is referred to a doctor for consultation. Any resulting report should be made available to the employee and can only be used for the purpose indicated

General points of advice (ctd)• Workplace accidents. Sometimes reports complied

by insurance companies seem to find their way back to the employer. What is the basis?

• Disciplinary proceedings including labour court etc, person has a right of access to personal data

• Note boundaries of legal professional privilege. Must be genuinely legal advice. Not just because it was written or amended by a legal person