Enforced subject access

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Summary

‘Enforced subject access’ (under section 56 of the Data Protection Act 198) prevents employers from requiring people to use their subject access rights under the DPA to provide certain records, such as police records, as a condition of employment. It also prevents contracts from requiring certain records as a condition for providing or receiving a service, such as housing or insurance. Requiring people to provide these records will become a criminal offence, punishable by a fine. In England and Wales the maximum financial penalty on summary conviction in the magistrates’ court is £5,000 (soon to be unlimited). On indictment in the Crown Court the fine can be unlimited.

We’ve long argued that section 56 needs to be brought into force, but this wasn’t ever possible until reforms to the Rehabilitation of Offenders Act 1974 were brought in on the 10thMarch 2014. Section 56 came into force on the 10th March 2015.

For people with convictions, this is an important development. Although it doesn’t prevent employers and others from getting access to criminal records through legitimate means (such as a basic disclosure through Disclosure Scotland or a standard/enhanced check through the Disclosure & Barring Service, depending on the job) what section 56 does do is prevent the use of significant amounts of sensitive personal data that can be disclosed as part of a subject access request.

In the past, we’ve come across examples where employers, insurers, education providers and housing providers have required people provide copies of their police record by applying to the police and paying £10 for a subject access request. This type of request discloses all information held on the Police National Computer, including convictions and cautions that are spent, as well as allegations or other ‘local police information’.

The introduction of section 56 will enable a clearer message to be given to any organisation that is found to be undertaking this type of practice. The legislation only allows requirements of this type where the record is required by law or is justified in the public interest.

Frequently asked questions

No. It means that an employer can’t make you do a ‘subject access request’ under the Data Protection Act to get a copy of your police record.

Depending on the job, an employer will still be able (if they wish) to require you to undergo a basic, standard or enhanced criminal record check.

What you should do will depend on the reason for the request. For example, if it’s for a job that would be eligible for a standard or enhanced check, then you might advise them of that. If not, then it might be that they’re only allowed to ask you to do a basic disclosure. Ultimately, you should be able to refuse to do it. Use the guidance above to help you. Either way, if you have evidence of them requiring you to do an enforced subject access, send us the details.
This is the phrase that is used to describe the process of obtaining a copy of the records that organisations hold on you. In this context, it’s mainly referring to you obtaining a copy of your police record.
Yes. This means that insurers will no longer require you to provide a copy of your police record. Instead, if they do require any form of official record of unspent convictions, they may ask you to consent to a basic disclosure.
Yes. It applies to any individual or organisation that ‘requires’ you to do a subject access request. For example, housing associations will no longer be able to require you to obtain a copy of your police record.
Yes. In guidance to schools it’s been made clear that they cannot require individuals to obtain police records of either themselves or those that live or work in the same household as them.

Other useful resources

ICO guidance on enforced subject access requests

ICO news release on the 9th March 2015

Below is a webinar that the ICO held on the 18th November 2014