Recording Claimant Interviews

[Lapsed Workaholic]

This post may help to clarify the legal status of claimants who wish to, or choose to, record their interviews at Jobcentres or other locations where their concerns and personal circumstances are being discussed and may affect them personally.

 

Jasta11, posted on another thread a FOI Response dated Sept 2012 that included the following paragraph:

 

Under the Data Protection Act 1998 (DPA), Section 36, there is an exemption which states that:-

 

“personal data; are exempt from the Data Protection Principles and the provisions of Part II (individuals’ rights) and Part III (notification) of the Act where they are processed by an individual only for the purposes of that individual’s personal, family or household affairs (including recreational purposes).”

 

That paragraph still applies, it is quoted again in a DWP FOI Response dated Oct 2014 which can be checked at:

 

https://www.whatdotheyknow.com/request/130864/response/322027/attach/5/Recordings%20by%20claimants.pdf

 

I don't believe that there is any doubt about claimants being able to covertly record interviews with DWP advisers for their own personal purposes. In fact, this paragraph states clearly that anyone doing so is exempt from the Data Protection Act 1998. This means that the DPA 1998 can't be used to prosecute a claimant for recording an interview since s/he is exempt from it.

 

Recordings processed 'by an individual only for the purposes of that individual’s personal, family or household affairs' would cover sharing them with such as one's solicitor or legal adviser, personal advisers attached to a charity or Citizens Advice. other advisers and/or representatives. Could not social advice forums such as this one also fit into that category?

 

The other important part of the above quoted paragraph to consider is that in addition to an 'individual's personal, family or household purposes' the law makes provision to 'include' that recordings can be processed for 'recreational purposes'. This part of the clause doesn't get a mention in the DWP's guidance, wonder why not? What does 'recreational purposes' mean? Could it not mean what is now commonly termed the social media such as Facebook, Youtube, etc? Are they not recreational? What else but recreation attracts so many people these days to that type of social media?

In any event would it not still be regarded as the individual's personal affair to publish his/her individual interviews where and when s/he chooses?

 

We know from experience that any time we receive a letter from DWP telling us what they want us to do, or threatening the consequences of failing to do what they expect us to do, they always quote the law, chapter and verse. It will be noticed that the guidance on this topic does not mention a single law on which a claimant can be prosecuted for, not only recording interviews, but from doing what s/he likes to do with that recording.

 

Two actions are suggested for the DWP to take: 1. write to the claimant; 2. write to the Internet Service Provider (ISP).

 

They rule option 2 out themselves as being almost worse than useless. That leaves option 1.

 

Under option 1: We have already examined where the action of the claimant is exempt from any action under the Data Protection Act. DWP could only bring a prosecution under the Act if they could show that the claimant was a 'Data Controller'. From a quick perusal of the law this would appear laughable to suggest that the claimant is a 'Data Controller' on the internet. The ISP, I would suggest, is the data controller, and DWP are more or less conceding in their guidance that any appeal to them to control anything anyone might publish would be futile.

 

This is the relevant part of Section 1 of the Data Protection Act 1998 that defines a data controller:

 

“data controller” means, subject to subsection (4), a person who (either alone or jointly or in common with other persons) determines the purposes for which and the manner in which any personal data are, or are to be, processed;

 

Sub-section 4 says:

 

(4) Where personal data are processed only for purposes for which they are required by or under any enactment to be processed, the person on whom the obligation to process the data is imposed by or under that enactment is for the purposes of this Act the data controller.

 

As a last resort they attempt to scare people off by bringing the Information Commissioner who is Parliament’s independent regulator of the Data Protection Act into the mix. This is what they tell us the information commissioner has to say:

 

"It is a criminal offence for a data controller to process personal information if they have not registered this with the Information Commissioner."

 

Here again we have already shown that to suggest that a claimant is a potential data controller on the internet is laughable.

 

Anyway read for yourselves and I believe that you will reach the same conclusions that I have reached and that is that in this, as in so much else, DWP are relying on bluff, ignorance on the part of the claimant, intimidation and fear to continue to get their own way.

 

Finally, is it to be supposed for one minute that if there was a law to prevent covert recordings from being published that Mr. Jack Straw and Sir Malcolm Rifkind would not have exploited it to keep their careers from such an ignominious ending.

[Mr.P]

Under the Data Protection Act 1998 (DPA), Section 36, there is an exemption which states that:-

 

“personal data; are exempt from the Data Protection Principles and the provisions of Part II (individuals’ rights) and Part III (notification) of the Act where they are processed by an individual only for the purposes of that individual’s personal, family or household affairs (including recreational purposes).”

 

The key phrase is "individual’s personal, family or household affairs" - Posting recordings on the internet on the pretext of seeking advice is most likely a step too far. Anonymised transcripts of the recordings would be unlikely to fall foul of any legislation.

 

Your main point that recording conversations, either openly or covertly, is something I've commented on in previous posts. Having read both the Data protection Act and the Regulation of Investigatory Powers Act, I concur with your conclusion: There is no legislation to prevent a private individual from recording a conversation.

 

 

However.... If the condition of entry to an office excludes open or covert recording, then you could be asked to leave and be treated as a trespasser. But as this is (generally) a civil offence, there is precious little that anyone could do.

 

Could "security" at the Job Centre or W.P. office confiscate or delete the equipment/recording ?

No. To do so would be theft and/or criminal damage, and if the recording was evidence to a criminal act, add to the list, perverting the course of justice.

[antone]

Recordings processed 'by an individual only for the purposes of that individual’s personal, family or household affairs' would cover sharing them with such as one's solicitor or legal adviser, personal advisers attached to a charity or Citizens Advice. other advisers and/or representatives. Could not social advice forums such as this one also fit into that category?

 

I'll let others debate the general legalities regarding your post - suffice it to say that I agree that as a general rule, covertly recording an appointment for one's own personal use would appear to be just fine. That is the advice we generally give here. But in relation to what you've posted as quoted above, I would like to make one thing clear: CAG members must not post such recordings on this forum for any reason. This forum is open and accessible to the general public, and posting these recordings here is in no way analogous to allowing a CAB adviser or lawyer to listen to one as part of a private consultation.

[Lapsed Workaholic]

The key phrase is "individual’s personal, family or household affairs" - Posting recordings on the internet on the pretext of seeking advice is most likely a step too far. Anonymised transcripts of the recordings would be unlikely to fall foul of any legislation.

 

Your main point that recording conversations, either openly or covertly, is something I've commented on in previous posts. Having read both the Data protection Act and the Regulation of Investigatory Powers Act, I concur with your conclusion: There is no legislation to prevent a private individual from recording a conversation.

 

 

However.... If the condition of entry to an office excludes open or covert recording, then you could be asked to leave and be treated as a trespasser. But as this is (generally) a civil offence, there is precious little that anyone could do.

 

Could "security" at the Job Centre or W.P. office confiscate or delete the equipment/recording ?

No. To do so would be theft and/or criminal damage, and if the recording was evidence to a criminal act, add to the list, perverting the course of justice.

With all due respect the key phrase is not "individual’s personal, family or household affairs", in fact, there is no such phrase, unless you cut the actual wording of the Act in such a way as to invalidate its meaning. The clause in the Act as you have interpreted it, and that you would regard as key, would not give any indication that this also means (including recreational purposes)?

Selective dissection of what the law actually says is the DWP's stock in trade and it is how they manage to persuade people that the law says something it does not say, thereby making such as claimants conform and succumb to bullying tactics.

What law could be used against a claimant to bar him/her from a Jobcentre for open or covert recording when the Act that governs data protection clearly states that it does not apply to such as claimants processing personal data?

Your contention that it may be permissible to post transcripts of recordings anonymously does not give the full picture either. Since this is also 'processing' it must be treated in the same way as any other form of 'processing'

The Act defines 'processing' as:

“processing”, in relation to information or data, means obtaining, recording or holding the information or data or carrying out any operation or set of operations on the information or data, including—

(a) organisation, adaptation or alteration of the information or data,

(b) retrieval, consultation or use of the information or data,

© disclosure of the information or data by transmission, dissemination or otherwise making available, or

(d) alignment, combination, blocking, erasure or destruction of the information or data;

So, to cut a long story short, what that means is that I would be in no more danger of falling foul of the Data Protection Act by posting any recordings I choose on the internet than I would be for writing down in my own words what transpired at interviews, or even giving a word for word account, as many of us have done before now without censure or repercussions from any quarter.

I am at a loss to understand how you can state, or what law states, that exercising a right I have under the Data Protection Act can be a civil offence.

All this begs the questions: By what law can a contributor on a discussion or advice forum 'process' personal data, regarding such as adviser interviews, in written form and not in audio form on the same proviso, that personal identifiers be redacted? And by what law does said forums accept and allow it in one form and not in the other?

Antone reminds us of CAG policy and I appreciate and accept that CAG, in conjunction with other forums have rules and regulations governing what can and can't be 'processed' or published by them. It might be interesting and informative to know by what law, if any, other than 'in house' rules, they are controlled or restricted.

[Conniff]

However.... If the condition of entry to an office excludes open or covert recording, then you could be asked to leave and be treated as a trespasser. But as this is (generally) a civil offence, there is precious little that anyone could do.

 

 

Surely if it's covert, they aren't going to be aware or it won't be covert.