Enforced subject access

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Finally, ‘enforced subject access’ becomes a criminal offence on 10th March 2015.

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Download our guidance on enforced subject access requests for people with convictions

Summary

‘Enforced subject access’ (under section 184 of the Data Protection Act 2018) 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 184 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 10^thMarch 2014. Section 184 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 184 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

+-Does this mean employers can't get a copy of my criminal record?

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 can I do if an employer or other organisation is requiring me to do an enforced subject access?

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.

+-What is a 'subject access request'?

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.

+-Does this apply to insurers?

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.

+-Does this apply to housing providers?

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.

+-Does this apply to primary schools wanting to know about the convictions of people that you live with?

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.

+-Is it true that a licensing authority can request your subject access request if you apply for a personal licence to become a pub licensee?

Yes. Under the 2003 Licensing Act Guidance (4.6) Regulations, in order to substantiate whether or not an applicant has a conviction for an unspent relevant offence, a licensing authority can, for the granting of a personal licence request a criminal conviction certificate, a criminal record certificate (both of these are basic DBS checks), or the results of a subject access search of the Police National Computer by the National Identification Service to the licensing authority. This means that whilst an enforced subject access request is now illegal, it can be requested for the granting of a personal licence. We would always recommend that when applying for a personal licence, you provide a basic DBS check rather than a SAR which would disclose the details of all convictions rather than just those which are unspent.