Uì Tò ¡Noustr"Rat Relations to the Information Contained and Its Employåes

DATA PROTEGTION AGT 1998

SUPERVISoRYPoWERsoFTHEINFoRMATIoNcoMMISSIoNER

ENFORCEMENT NOTICE DATED 2 MARCH 2OO9

To Mr lan Kerr trading as The Consulting Association of:

consullng As¡ocigtigli:| as 1 Mr tan Ken,tqding as The .{atl,cryiroller" lee6 (the "Act")' iäiiÅäå iräeãUã.'itìl ot tl''e Dáta Frãtection Act a list was operating within the.. 2. The commissioner was informed that in the construction construction ¡nousirv.- it was atteged that contractors would r"nã" list of the names of potenlialslaffto,the ëäta ìndustry then'advi$e *no *ã,r¿ in"n"ót1ecto 1rte nåmeã sgainJt'a 1ist'and Êontroller the in the contra"to* oiinì"iriõãn"" ¡ntormátiÀn wniðn datâ'controllei'held would then make a relation to those nätãO"on that list. The contractor on the basis of that decision whether or not to employ an individual information.

3. on23February200gawarrant,grantedunderschedulegoftheAct'was A search of the premises executed at the pt"ti*" áf tf,"'Oät" controller' revealed the following information: relation to individuals' The entries (i) A ringrb.inder containing 3,213 entries in national insurance cnntained int"rmãi¡On ã.ucn as name$-'! dates 9i Pitlh' ;ilbä; täü;;;n¿ traoes atphabeticaily tisted on pases which had been processed on electronic media' an intelligence database' (ii) A comprehensive sard index system constituting and the database contained' Some of the info¡mãt¡åÀ ¡S ávei e0 years old the union aetivity of an amongst other ñiÅgt, p"tssnal datå relating lo w1h any information that the indívidual, f is emôläVment condueftogetn$ between an employer individual ,"v óäããäini"uì tò ¡noustr"rat relations to the information contained and its employåes. This database wåt t¡nL"O 3(i) above' ¡n tn" nng'Uin'der referred to in paragraph

bers") within th e construction (iii) The identity of organisations ('su bscri in the database following industry tnat nà-d"aciess to iniormãüon conîajned contaci with the data controller'

1 (iv)Copies of invoices from the data controller to the subscribers for seruices provided, for example, employment checks on individuals,

(v) Miscellaneous papers for sifting, a computer and other electronic storage media.

4, The Commissioner has considered the data controller's compliance with the provisions of the Act in light of this matter.

5. Section 4(4) of the Act provides that, subject to section 27(1), it is the duty of a data controller to comply with the data protection principles in relation to all personal data with respect to which he is the data controller. The relevant provision of the Act is the First Data Protection Principle.

6,, The First Data Protection Principle provides, at Part I of Schedule 1 to the Act, that:

íil " Persanal data shalt be process ed fairly and lawfully and, in particular, shall not be processed unless-

(a) at least one of the conditions in Schedule 2 ß met, and

(b) in the case of se nsitive personal data, at least one of the conditions rs Schedule 3 r's a/so met."

Paragraph 2 of Parl ll of Schedule 1 to the Act further provides that:

Sub-section I

"subject to paragraph 3, for the purposes of the first principle personal data are not to be treated as processed fairly unless-

(a) in the case of data obtained from the data subiect, the data controller ensures so far as practicable that the data subiect has, rs provided with, or has made readíly available to him, the information specified in sub- paragraph (3), and

(b) in any other case, the data controller ensures so far as practicable that, before the relevant time or as soon as practicable after that time, the data subject has, is provided with, or has made readily available to him, the information specified in sub-paragraph (3).

Sub-section 2

ln sub-paragraph (1)(b) "the relevant time" means-

(a) The time when the data controller first processes fhe data, or

(b) ln a case where at that time disclosure fo a third party within a reasonable period is envisaged- 2 (i) lf the data are in facf disc/os ed to such a person within that períod, the time when the data are first dr'sc/osed,

(ii) if within that period the data controller becomes, or ought to become, aware that the data are unlikely to be disclosed fo such a person within that period, the time when the data controller does become, or ought to become, so aware, or

(¡i¡) In any other case, the end of that period.

Sub-secfrbn 3

The information referred to in sub-paragraph (1) rs as fol/or¡¡s, namely-

(a) the identity of the data controller,

(b) if he has nominated a representative for the purposes of this Act, the identity of that representative,

(d) any further information which rs necessa ry, having regard to the specific circumstances ln which the data are or are to be processed, to enable processing in respect of the data subiect to be fair."

(vi) The Commissioner is of the view that the data controller has contravened the First Data Protection Principle in that, amongst other things, he has processed personal data unfairly by failing to provide the individuals whose names are on the list with the information referred to in sub-section 3 referred to above at the relevant time or at all. lnformation as to whether an individual is a member of a trade union is "sensitive personal data" under section 2(d) of the Act. ln addition, the Commissioner considers that none of the conditions for processing in Schedules 2 and 3 to the Act have been met as required by the First Data Protection Principle.

(vii) The Commissioner has considered, as he is required to do under section 40(2) of the Act when deciding whether to serve an Enforcement Notice, whether any contravention has caused or is likely to cause any person damage or distress. The Commissioner takes the view that damage or distress to the individuals named on the list is likely as a result of them not being aware of the existence of the list and being denied the opportunity of explaining or correcting what may be inaccurate personal data about them, which may be processed by the data controller or others and which may jeopardise the employment prospects of an individual in the construction industry.

3 ln view of the matters referred to above the Gommissioner hereby gives notice that, in exercise of his powers under section 40 of the Act, he requires that the data controller shall by 10 March 2009 take the following steps:

(1) Refrain from obtaining, using or disclosing any personal data of the description specified in paragraph 3 of this Notice unless the disclosure is necessary for the purpose of complying with any obligation under the Act; obtaining legal advice or for the purpose of, or in connection with, any legal proceedings.

(2) Refrain from altering, erasing or destroying any personal data of the description specified in paragraph 3 of this Notice.

Right of Appeal

There is a right of appeal against this Notice to the lnformation Tribunal lnformation about appeals is set out in the attached Annex 1.

Any Notice of Appeal should be served on the Tribunalwithin 28 days of the date on which this Notice is served. lf the Notice of Appeal is served late the Tribunal will not accept it unless it is of the opinìon that it is just and right to do so by reason of special circumstances.

Statement of urgency and reasons

The Commissioner considers that by reason of special circumstances this Notice should be complied with as a matter of urgency under section 40(8) of the Act. This means that this notice must be complied with by 10 March 2009 at the latest even if the data controller intends to exercise his right of appeal against this Notice. The Commissioner's reasons for reaching this conclusion are that it is likely that the data controller and/or his subscribers will continue to process the personal data of the description specified in paragraph 3 of this Notice to the continuing detriment of the individuals named on the list who are unable to exercise their rights under Part ll of the Act. The Commissioner acknowledges that as this processing has apparently been going on for many years that it might appear difficult to justify action under the urgency provisions. However, in the light of the nature of the personal data, the Commissioner believes that if the data controller continues to provide it to employers there is a very significant risk that this will cause some individuals to be denied employment on the basjs of adverse information they are unaware of and are therefore unable to challenge.

4 Dated the 2nd day of March 2009

David Smith

Deputy I nformation Commissioner Wycliffe House Water Lane Wilmslow Cheshire SKg 5AF

5 ANNEX 1

THE DATA PROTECTION ACT 1998 (PART V, SECTION 40)

RIGHTS OF APPEAL AGAINST DECISIONS OF THE COMMISSIONER

1 Section 48 of the Data Protection Act 1998 gives any person upon whom an enforcement notice has been served a right of appeal to the lnformation Tribunal (the "Tribunal") against the notice.

2. lf you decide to appeal and if the Tribunal considers:-

a) that the notice against which the appeal is brought is not in accordance with the law; or

b) to the extent that the notice involved an exercise of discretion by the Commissioner, that he ought to have exercised his discretion differently, the Tribunal will allow the appeal or substitute such other decision as could have been made by the Commissioner. ln any other case the Tribunal will dismiss the appeal.

3. Whether or not you decide to appeal against the notice you may appeal against the Commissioner's decision to include the statement of urgency in the notice, or the effect of the inclusion of the statement as respects any part of the notice.

4. On an appeal in respect of the statement of urgency the Tribunal may direct that the notice shall have effect as if it did not contain any such statement or, that the inclusion of the statement shall not have effect in relation to any part of the notice, and may make such modifications in the notice as may be required for giving effect to the direction.

5 You may bring an appeal by serving a notice of appeal on the Secretary to the lnformation Tribunal, Arnhem House Support Centre, PO Box 6987, Leicester, Leicestershire, LE1 6ZX.

a) The notice of appeal should be served on the Tribunal within 28 days of the date on which notice of the Commissioner's decision was served on or given to you.

b) lf your notice of appeal is late the Tribunal will not accept it unless it is of the opinion that it is just and right to do so by reason of special circumstances.

c) lf you send your notice of appeal by post to the Tribunal, either in a registered letter or by the recorded delivery service, it will be treated 6 as hav¡ng been served on the Tribunal on the date on which it is received for dispatch by the Post Office.

6 The notice of appeal should state:-

a) your name and address;

b) the decision which you are disputing and the date on which the notice relating to such decision was served on or given to you;

c) the grounds of your appeal;

d) whether you consider that you are likely to wish a hearing to be held by the Tribunal or not;

e) if you have exceeded the 28 day time limit mentioned above the í. special circumstances which you consider justify the acceptance of your notice of appeal by the Tribunal; and

Ð an address for service of notices and other documents on you;.

ln addition, a notice of appeal may include a request for an early hearing of the appeal and the reasons for that request.

7 By virtue of section 4A(), an enforcement notice may not require any of the provisions of the notice to be complied with before the end of the period in which an appeal can be brought and, if such an appeal is brought, the notice need not be complied with pending the determination or withdrawal of the appeal.

However, section 40(7) does not apply where the notice contains a statement that the Commissioner considers that the notice should be complied with as a matter of urgency.

Section 4B(3) provides that where an enforcement notice contains a statement that the notice should be complied with as a matter of urgency then, whether or not you intend to appeal against the notice, you may appeal against - (a)the Commissioner's decision to include the statement in the notice, or (b) the effect of the inclusion of the statement as respects any part of the notice.

I Before deciding whether or not to appeal you may wish to consult your solicitor or another advíser. At the hearing of an appeal a party may conduct his case himself or may be represented by any person whom he may appoint for that purpose.

7 7, The statutory provisions concerning appeals to the lnformation Tribunal are contained in sections 48 and 49 of, and Schedule 6 to, the Data Protection Act 1998, and the lnformation Tribunal (Enforcement Appeals) Rules 2005 (Statutory lnstrument 2005, No. 14).

I Blacklisting Developments Page I af2

Gathy Devitt

From: David Clancy Sent: 11 May 2009 08:57 To: Cathy Devitt Subject: FW: Blacklísting Developments

Cathy

Just for your info

Dave

-----Original Message----- From: David Smith Sent: 08 May 2009 18:07 To: ICO PressOffice Cc: Robert Parker; David Clancy Subject: FW: Blacklisting Developments

You may already be aware of this but am just fonruarding it in case you are not and you rece¡ve any enquiries on Monday

David

From: Davld Clanry Sent: 08 May 2009 11:16 To: Mick Gorrill Cc¡ Richard Thomas; David Smith; Cathy Devitt; Sally Anne Poole Subject: FW: Blacklisting Developments

Mick

I don't think that there is anything in this that will cause us any problems. I will respond to I just after lunch subject to anyone else having any comments

Dave ection 44

1t/05/2AA9 Blacklisting Developments Page2 of2

Fro m: David Clancy Imailto : [email protected] k] Sent: 07 May 2009 17:11 To: Subjectr RE: Blacklisting Developments I Spoke briefly to Jim yesterday and have arranged to speak to him again,

I look forward to the policy announcement!

Regards

Dave ion 44

ü,ta5i200e lVlessage Page I oî'2

Cathy Devitt

From: David Smith Sent: 18 May 2009 16:02 To: Cathy Devitt Subject: FW: The Consulting Association ction 40 Sorry. I meant the 28th

From: David Smith Sent: 18 May 2009 15:56 To: Cathy Devitt Ccr Linda M. Davies r'i Subject: RE: The Consulting Association

Cathy n40 That's fine thanks. I may come in on the 17th So if I do we might be able to bring the meeting fonruard means can part.

David . .''.If.-' ¡ i.;' From: Cathy Devitt ¡ .' Sent: 18 May 2009 15:48 'r ' To: David Smith Subject: The Consulting Association

David,

Linda has now arranged a meeting to discuss this case at 3pm on 1B May 2009 after your team meeting.

Mick is not in on that day but it is the only time we can meet before you go away.

He will let me have his views on my Enforcement Recommendation Report before the meeting so that I can relay them to you. I hope this is ok.

ln the meantime I attach a copy of my Enforcement Recommendation Report together with the collated response form I have prepared'

Thanks.

Cathy

Catherine Devitt Regulatory Action Division LawYer I nformation Commissioner's Office Wycliffe House, Water Lane, Wilmslow, Cheshire, SKg sAF' Tel: 01625 545869

18/0s12009 ofZ Message PageZ

Fax: 01 625 545738 Email : cathy.devitt@lcçigçi,go"v. uk l,v]l\1"w.igo-ggEult

18105/2009 Message Page I of2

Cathy Devitt

Fromr David Smith Sent: 31 July 200915:14 To: Cathy Devitt subject: FW: Final Enforcement Notices against construction companies

Cathy

Just to confirm that I will sign the notices rather than Chris

David

From: ICO Pressoffice Sent: 31 July 2009 14:59 To: Cathy Devitt; ICO PressOffice Cc: David Smith; Mick Gorrill; Sally Anne Poole; David Clancy Subject: RE: Final Enforcement Notices against construction companies

Cathy,

Thank you for the below. We will have the press release ready for issue on Tuesday once the Notices have gone out on MondaY. ln the meantime if there is anything further you would like to discuss then please contact us.

Kind regards,

Gemma

ICO Press Office 020 7025 7584 p qq i co r.ç-s_sqf fice.@lrim ediauk. m W.ü ry.,j00"g0T'Hf(.

The Personal lnformation Promise - Organisations taking responsibil ity for protecting people's personal information. Visit the ICO website to find out h ow your organisation can sign up to the Fersgnal lnforrnalipn Plomi-ge

gsi, gov. From : Cathy Devitt lmailto : Cathy. Devitt@ ico. u kl Sent: 30 July 2009 11:43 To: ICO Press Office Cc: David Smith; Mick Gorrill; Sally Anne Poole; David Clancy Subject: Final Enforcement Notices against construction companies

James,

I attach 14 draft Enforcement Notices which I am intending to send out by recorded delivery next Monday (the construction companies will receive the Notices on Tuesday)

David is going to ask Chris Graham tomorrow if he would like to sign these Notices and, if so, the Notices will be subject to this slight amendment. please let me know íf you have a problem with the proposed timescale as I can always delay despatch if necessary.

03,08t2009 Message Page2 ofZ

ction 42

Regards on 40

Cathy

Catherine Devitt Regulatory Action Division Lawyer lnformation Commissioner's Office Wycliffe House, Water Lane, Wilmslow, Cheshire, SKg 5AF Tel: 01625 545869 Fax: 01 625 545738 t Ema il : cathy. [email protected]çi,ggv*u K ww'rit,i.ça.gqv.uK

The ICO's vision is a society where information rights and responsibilities are respected by all.

If you a¡e not the intended recipient of this email (and any attachment), please infomr the sender by retum email and destroy all copies. Unauthorised access, use, disclosure, storage or copying is not permitted. Communication by intemet email is not secure as messages can be intercepted and read by someone else. Therefore we strongly advise you not to email any information, which if disclosed to unrelated third parties would be likely to cause you distress. If you have an enquiry of this nature please provide a postal adclress to al1ow us to communicate with you in a more secure way. If you want us to respond by email you must realise that there can be no guarantee of privacy. Any email including its content may be monitored and used by the information Commissioner's Office for reasons of security antl for monitoring internal compliance with the office policy on staff use. Email monitoring or blocking software may also be used. Please be aware that you have a responsibility to ensure that any email you write or forward is within the bounds of the law. Thã Information Commissioner's Office cannot guarantee that this message or alìy attachment is virus free or has not been intercepted and amendecl. You should perfonn your own virus checks.

http ://www. ico. gov,ùk or email : mail@ico. gsi. gov.uk Information Commissiouer's Offrce, WyclifTe House,'Water Lane, Wilmslorv, Cheshire, SK9 5AF Tel: 01625 545 700 Fax: 01625 524 510

Trimediå's footprint is the biggest in pan-European PR. Our 30 lvholly-owned offìces in 1 1 countries serve lhe nâtional, European and global communícations needs ol a-d]verse iange of óompanies and organisations. Our sister company, Mmd, provides unpâralleled coverage in 1B markets ln Cenkal & Eastern Europe, Russia end the ClS. Tri¡nedia is part of Huntsworth plc.'[rimedia. Trends. Tools. Talent' !wYr-v-,-trimediau,K.ça-t.r-ì

Environmental Commitment: Please cons¡der the env¡ronment belore printing oul emâ¡ls, Disclaimer:w-wr'¡.lrirnçdi;ruk.ûonírnde-x.¡rhp? Þîge:: l113&1"1 ïii-má¿;ã is a l¡miteO company registered in the UK. Registered Number: 3140273. Reg¡stered Office: 15-1 7 Hunlsworth Mews, LÕndon NWl 6DD.

0310812009 MG/CLD ALM/LAC/S2233/60 lnformaÈlon eomrnlÊB¡onsrts Ctffl Promoting public access co offiaial ¡nfonmati and pnotect¡ng your personal ¡nformat¡

. Gordons LLP Riverside West Whitehall Road Leeds LS1 4AW

8 July 2409

¡ ouutl

'.ì The Consulting Association i::ii':'

,,"Í , , . ,., Thankryou'for youl letter dated 26 June 2009; the cc¡htents of wllich I note. I arn . i!,. unable.to'provide thç confirmation you have requested:

The Commissioner has"now served a Preliminary Enforcement Notice (as recommended by the Cquncil on Tribunals) clearly stating that he is "minded to" exèrcise his powers under section 40 of the Data Protection.Act 1998, subject to any representations your client wishes to make as to why the Commissioner should not serye an Enforcement Notice in those terms.

I therefore look forward to hearing from you with any such representations by 20 July 2009 after which time the Commissioner will make a final decision as to whether an Enforcement Notice in such terms should be served.

;i Yours sincerely {*.'¡*"* t&*d¿-

Catherine Devitt RAD Lawyer

i 'ìn,-rìLrtion, \l/ycliffe r¡e¡r W€¡tel Lane, Cheshine, SK9:.'lAl: l'¿, Commisaioner's, ûffice, l{' .Wilmslow; .t, ': r.t, i' I ' :L' a.: Page I of 1

Gathy Devitt

From: StephenMcCartneY Sent: 07 JulY 2009 13:35 To: David smith; Mick Gorrill; cathy Devitt; David clancy; Jonathan Bamford Cc: Thomas OPPe; Jonathan M KaY Subject: Another consultation

.[tiruåryw,w.þer&gav,rl!/ü1eslrfile pdf

Everyone

Business lnnovation and Skills (headed up by Lord Mandelson) have put out a consultation on the blacklisting of trade union members.

Now due to our own interest in blacklists, and the general interest that we have, I am going to have a look and see what we can say about this. Then I will do the usual and send it round all for comment. JK - can you add this one to the list and remove RIPA? Stephen McCartney Head of Data Protection Promotion 01625 545 865

I nformation C gm mi ssion e r's Office, Wycl iffe Ìl ou se Water Lane Wilmslow Cheshire SKg 5AF ste w ,Uji.

i t

07 /4712a09 Ref: MG/CLD

lnforrnãt¡on Cornmlgalonerts Clffl Promoting public access to official informati and p¡otecÈing your personal infonmati

Services Carillion plc Birch Street Wolverhampton West Midlands WV1 4HY

22 June2909

Dear Sir/Madam

The Gonsulting Association

I refer to our recent correspondence in this matter.

I write to inform you that the Commissioner has decided not to take any enforcement action aga¡nst Carillion plc, Dudley Bower & Company Limited and John Mowlem & Company Limited in the light of your representations.

Yours faithfully

q_Ë*.nl*_

Cathy Devitt RAD Lawyer

lnfrrrmatiorl Cornnrissipner's Office, Wycliffe l"lor'lsq, Water Lane, Wilmslow, Cheshine, SKS 5AF , ., '. t:O845 63û 606C) f:O1625 E.245111 e:mail@ico,gsi.gov.uk rnr:ico.govuk Ref; MG/CLD

lnfor.maÈion Eornmlasionenrs Clfflr Promoting public access to off¡cial lnformati¡ ãnd proÈect¡ng your perBonal informstl'

AMËC plc 76 -78 Old Street London EClV gRU

22 June2AA9

Dear

The Consulting Association

I refer to our recent correspondence in this matter

i I I write to'inform you that the Commissíoner has decided not to take any I enforcement action aga¡nst AME0 Prbcess &-Engineering Limited, AMEC Building Limited, AMEC Construction Limited and AMEC Facilities Limited in the light of your representations

Yours sincerely

CÈ-"- t-Þ-åt* Cathy Devitt RAD Lawyer

lnfurqnation Cornmissioner's Office, WycJiffe l-Joti,ge, Water Lane, Wilmslow, Cheshire, SKS IAF " ' .i,,., . t:O845 630 6û6O f¡ 01626 â24F1(l e: maí[email protected],gov.uk.w; ico,gov.uk i' I Ref: MG/CLD

InforrnaÈion Cornmlggloner'r¡ Ctfflt Promot¡ng public access to official ¡nfonmsÈ¡t ând prot€ct¡ng yoúr perBonal ¡nfoFmatit

Galliford Try plc Cowley Business Park Cowley Uxbridge Middlesex UB8 2AL

22 June 2009 O"rrI

The' Conèulting Assôciation

I refer to our recent correspondence in this matter. ¡ . - .

I write to inform you that the Commissioner has decided not to take any enforcement.action against Morrison Construction Limited in the light of your representations.

Yours sincerely C"ro- \'A*-xl* Cathy Devitt RAD Lawyer

lnlq,rmatìon tonrmissioner's Olfice, Wycliffe Hou¡e , Water Lane, Wilmslow, Cheshire, SKS liAF '.,,': ' 630 6CI60 f:O1625 é:¡[email protected]í.gov,uk w:'ióo,gov.uk'!' 'tl{11845 'ô2451'i;' Ref: MG/CLD

lnf or.¡natlon Gorn¡nleslonorre C)ffl, Promot¡ng publ¡c access üo off¡cial informati ând proÈeat¡ng your perBonal informati

Morgan Sindall plc Kent House 14 - 17 Market Place London W1W 8AJ

i.1 22 June 2009

D 1,; '

The Consulting Association

I refer to our recent correspondence in this matter.

I write to inform you that the commissioner has decided not to take any enforcement action against Morgan Est plc, Morgan Ashurst plc and Lovell Partnerships Limited in the light of your representations.

Yours sincerely ü"** L.&,-** Cathy Devitt RAD Lawyer

lnfg¡mation Commissioner's Otfiûúì, Wycliffe HoLtso, Waten Lane, Wilmslow, theshire, SKg g,AF ,.¡,.' t:Ç845 630 6o6ü f;.o1825 524s'll e:nnaii@ico,gsi.go,r.uk w:ico,goù,uk r ¡ a

Ref: MG/CLD

lnfonmatlon Comrnisslonerts Clffl, Prornot¡ng publ¡c access üo off¡c¡al ¡nformat¡ end protecting youp Fer6onal ¡nformeti

TaylorWimpey plc 80 New Bond Street London W15 1 SB

22 June 2009 D"urI

The Consulting Association

I refer to our recent correspondence in this matter.

I write to iniôrm you-that the Commissioner has decided not to take any enforcement action against Taylor Wimpey plc in the light of your representations.

Yours sincerely f.,** \-e*--Êr Cathy Devitt RAD Lawyer

lnfoîmation Commissioner's Office, Wycliffe Houåçr Water Lane, Wìlmslow, Cheshire, SK9 5AF ii., t:CI845 630 6060 f:O.1625 5Ê451t?r e:[email protected] w:icc,gov.uk ';í:'' Ref: MG/CLD

lnforrnaùlon Clomml¡¡lonar"a clfflr Promot¡ng public eccess to official informatl ãnd prot€cting your personal ¡nforrnat¡'

McGrigors LLP Princes Exchange 1 Earl Grey Street Edinburgh EH3 gAQ

22 June2009 .t ouutl

The Consulting Association

I refer to our recent cbrrespondence in this matter.

I write to inform you that the Commissioner has decided not to take any enforcement action against Miller Construction (UK) Limited or Miller Construction ,Limited in the light of your representations

Yours sincerely C*l*-

Cathy Devitt RAD Lawyer

lnformation Gornmissionerls Office, Wycliffp Housei Water Lane, Wilmslow, Cheshire, SK9 SAFr i,r, ¿:O845 630 6060 f:CI162'5 52451Oi:¡s:nrail@íco.gsi.gov.uk ur¡:ico.gov.uk ' t'z' Ref: MG/CLD

lnforrnat¡on Commlgalonert¡¡ Clfflt Promoting public access to official infonmatir and protect¡ng your Personal ¡nfoFmBt¡t

Sir Robert McAlpine Limited Eaton Court Maylands Avenue Hemel Hempstead Hertfordshire HP2 7TR

11 22 June20}9

Dear Sir/Madam

The Gonsulting Association

I refer to our reaent.corresp.pndence in this matter.

I write to inform you that the Commissioner has decided not to take any enforcement actíon against Sir Robert McAlpine Limited in'the light of your representations.

Yours faithfully \O".xi* ii Co..-- Cathy Devitt RAD Lawyer

.lnforr¡¡ation Commissioner's Office, Wycliffe l-louss,,Water LaRe, Wilmslow, theshire, SKB SAF: ' . .;)t. t:t845 6306060 f:O1Ç25 52451Or,iu:[email protected];gov.uk w:ico,gov.ul rr'.r¡ Ref: MG/CLD

lnfo¡.rnation Cornmisglonsrre Clffl¡ Promoting public access to official informat¡( and proÈect¡ng your personal informãtít

Spie Matthew Hall Limited 7 - 14 Great Dover Street London SË1 4YR

22 June 2009 lì Dear

The Consulting Association ::

I refer to our recent correspondence in this matter.

I write to inform you that the Commissioner has decided 4gt to take any enforcement action against Spie Matthew Hall Limited in ille light cif your representations.

Yours sincerely

/* tt+ r L*****- "\#"**ltÉ.*

Cathy Devitt RAD Lawyer

lnforrnation Cornmissioner's Office, Wycliffe House,'\l/ater Lane, Wilmslow, Cheshile, SKg 54F."' . i,' tl'O845 630 6060 f:O1Bã5 5P451{l ¡l;nrail@ir:o"gsi.gov.uk w:ico.gouuk ' :''rË' ' ' '"' Ref: MG/CLD

lnfonmatlon corl1mlsslonenrs Offir Promoting public sccess to officisl intormâtlt ênd protecting your personal informatir

Taylor Woodrow Construction Limited Astral House lmperial Way Watford Hertfordshire WD24 4WW

.: 22 June 2009

Dear Sir/Madam .'

The Gonsulting Association

I refer to our recent corres.pondence in this matter,

lwrite to inform you that the Commissioner has decided not to take any enforcement action.against Taylor Woodrow Construction Limited in the light of your representations.

Yours faithfully t"e** \g*rå* Cathy Devitt RAD Lawyer

lnformaÞion Commissioner's Office, Wycliffe House,.Waüer Lane, Wilmslow, Cheshine, SKg 5AF'": I I .,i,rt;;O845 Ê3O 6060 f:O182-5 5?451O ¡¡;.mail@ico,gsi.gov.uk w:ico,gov.uk ' t. Ref: MG/CLD

lnforrnation Cornrn¡Es¡onerrg clffh Promoting public aocess to off¡ê¡al informati' and pFotecting your peraonðl ¡nformati,

ROK Centre Guardian Road Exeter Business Park Exeter EX1 3PD

22 June 2009

The Consulting Association

I rgfer to our recent correspondence in this matter

I write to inform you that the Commissioner has decided not to take any enforcement action against Walter Llewellyn & Sons Limited in the light of your representations.

Yours sincerely t.**,* \**d*¡-* Cathy Devitt RAD Lawyer

'lnfonmation Commissioner's-fJffice, Wycliffe House; Waber [-ane, Wilmslow, Cheshire, SK9 5AF .:., ,çt:û84'5 630 8060 f:O16?5 5,â45'10 e:r¡nail@ico;gsi,gov,uk w:ico,gov.uk it'¡ Ref: MG/CLD

lnfonryrat¡on Gomrnissionenrs Clffl' trtromoting public access to officiãl informati ãnd protecting your personal informati

Wilmott Dixon Limited Spirella 2 lcknield Way Letchworth Garden City Hertfordshire SG6 4GY

:t 22 June 2009

Dear

The Consulting Association

I refer to our recent correspondence in this matter.

I write to inform you that the Commissioner has decided not to take any enfoiçement action against Wilmott Dixon Limited in the light of your representations.

Yours sincerely L#.*#*

Cathy Devitt RAD Lawyer

lnformatiot¡-Commissiqner's Office, Wycliffe House, Water Lane, Wilmslow, Cheshine, SKg.5/\F : üiÇ845 630 6U6O f:O1625 5245:lO elmi,il@ico,gsi.gó.v.uk ur:ico,gov.uk Ref: MG/CLD

lnfonmaËlon EommlselonenrIs Ctffl Promot¡ng publ¡c accêss to offícial informati and protecting your persõnâl infoFmat¡

Amey plc Legal Depaftment 5th Floor Waterhouse Square 138 - 142 Holborn London EClN 2ST

1 I June 2009

Dear

The Gonsulting Association

. .1. refer to our recent correspondence in this matter.

I wrÍte to inform you thal the Commissioner has decided not to take any enforcement action against Amey Construction Limited in the light of your representations.

Yours sincerely C"S*- r"Q*'*!å** Cathy Devitt RAD Lawyer

lnformation,Commissionen's ûffice, Wycliffe Hous6, Waler Lane; Wilmslow, Cheshine, SKg 5ÂF tr'll!845 630 606O f:O1625 5e451O elma;.ÍÞico.gsi gnv.uk w:icn.gov.uk , Ref: MG/CLD

lnft¡rrnatlÞn Gommiselonan,¡ Öffi' Promot¡ng public access to official ¡nfonmat¡ ând protect¡ng your pers()nal ¡nfonmsti

AWA Homes Limited 2 Larch Close Ruskington Sleaford Lincolnshire NG34 gGB

22 June2}09

DearSirlMadarn . .,

The Gonsulting Association

l refer to our recent correspondence in this matte.r"

I write to inform you that the Commissioner has decided not to take any enforcement action aga¡nst AWA Homes Limited in the light of your representations.

Yours faithfully

Cnå*--- tü*,il*.- Cathy Devitt RAD Lawyer

lnformation Cpmrnissioner's Office, Wycliffe House; Water Lane, Wilmslow, Cheshine, SKg 5AF t¡O8;?.5 630 606û frO1625 524310 e¡mail@îeó,gsi.gov,u( w:ico.gov.uk Ref: MG/CLD

lnformatlon Commlaaisnen¡g Clffl, Promoting publlo acceee to official informati ênd protEct¡ng your poraonql lnformati

UK Limited Merit House Edgware Road Colindale London NWg sAF

22 June2OA9

Dear Sir/Madam

The Consulting Association

I refer to our recent correspondence in this rnatter,

I write to inform you that the Commissioner has decided not to take any enforcement action against BAM Construct UK Limited in the light of your representations.

Yours faithfully C.s'- tß-s- Cathy Devitt RAD Lawyer

lnformalion tnmnrissionen's Office,.Wycliffe House, Waten þne, Wilrhslow Cheshire, SKg 5AF t.i,,. t, çs.1i1'ti 640,6060 'f: o1 625 F,a4â10 s¡ mail@luo.$si,guùuk' w: ico.gov.uk Ref: MG/CLD

lnfo¡.rnation Commlgslonanrrs Ctffl Pl"omotíng public eccees to official ¡nformat and protðêting your persone¡ ¡nformai

St James House Knoll Road Camberley Surrey GU15 3XW

22 June 2009

Dear

The Consulting Association

I refer to our recent correspondence in this rnatteï

that rhe commissioner has decided no*o take any enlorcement:y_l9j:':l?t1y:., -."¿ a0t¡on against BAM Nuttall Limited in the light of your repr€.sefitatlons;

Yours sincerely

,i i \--.åe- \Ðt.,.È..-

Cathy Devitt RAD Lawyer

lnfonmation commissionen'stffic:, wvcliffe House, water" Lere; t: o'4=ieqo, wìlmslow, cheshire, sKg FAF 6csü r: o 1 6p's Ea45 1 ó . .::'|.' ;;,;;i@[T, gåi. s*,,r *,î.". ääî. * Ref: MG/CLD

lnformst¡on Comrnlaelonenre Clffl, f,romoting public accBac to official informati and ppotect¡ng your personal informati

The Company Secretary Diamond Mechanical & Electrical Engineering Seruices Limited Elm Court Southend Road Wickford Essex SS11 8DU

22 June2009

Dear Sír/Madam

The Gonsulting Association

I refer to ou¡ r.qce-nt correspondence in this matter.

I write to inform you that the Commissioner has decided not to take any enforcement action against Diamond Mechanical & Electrical Engineering Services Limited in the light of your representations.

Yours faithfully

il.**r**-* Ue*fu

Cathy Devitt RAD Lawyer

lnformation Cornmissio-nen's Office, Wycliffe House, Vlater Lane, \ôlilrrrslory Cheshire,-SKg 5AF t¡O845 63['"ìL,6O6O ,f;O1625 52451O e:rnail@ìco.gdiiþv.trk 'r,ai;icri gov.uk : tËm Ref: MG/CLD

: lñf.rFrl1ãùion CofnnôlBslonerts Ëlffir

Promot¡ng public acceas to offic¡Êl ¡nformati : 8nd protecting your personal ¡nformst¡'

Balfour Beatty Civil Engineering Limited B6 Station Road Redhill Surrey RH1 1PQ : i .:

: 18 June 2009 ,DearI

The Gonsulting Alse,ciation' ,,. , I refer to our recent correspondênce in this matter

l now enclose, by way of service, a Preliminary'Enforcement Notice. t! Please acknowledge safe receipt.

I look fonvard to receiving your repreåentations, if any, before 20 July 2009

Yours sincerely

Mick Gorrill Assistant Comrnissioner Regulatory Action Division

zJ3B3ðBtBsoGB ]

lnfonmation Commissioner's Office, Wycliffe House, Water Lane, Wilmslow, Cheshine, SKS SAF . t:0845 630 6060 f:01625 524510 e:[email protected],gov,uk w:ico.gov.uk Message Page i of2

Cathy Devitt

From: CathY Devitt Sent: 06 August 2009 17:58 To: IOkier.co.uk' Cc: David Smith; Mick Gorrill Subject: Service of Enforcement Notices o""rI

I refer to you email to Mick Gorrill dated 5 August 2009. Mick is out of the office until 10 August and I am therefore responding on his behalf'

I can confirm that, on the available evidence, the Commissioner does not intend to take any further enforcement action in this matter'

I note the contents of the article which appeared in the Construction News on 23 July i 2009, I cannot confirm the source of the information in that article or that the figures set out are accurate.

ln any event the Commissioner denies that he has only taken enforcement action against low level users of Mr Kerr's database. lf you rely on the figures quoted in the article you will see that enforcement action was taken against a range of users. lndeed some of the lowest level users were not proceeded against at all.

The reason for this mix is that the same criierlá that have been applied consistently and fairly to all of the construction companies investigated by the Commissioner's office' However I can understand your concern that apparently 2 of the highest level users of Mr Kerr's database have not been served with enforcement notices.

By way of explanation, whilst it was important to establish that a construction company was a useiof Mr kerr's database (and extent of use), this was not the only consideration.

The Commissioner can only serue an enforcement notice if he is satisfied that there has ì been a contravention of any of the data protection principles and that the contravention fell within the jurisdiction of the Data Protection Act 1998 (the "Act")'

The Commissioner considered that there was sufficient evidence of such a contravention initially to serve preliminary enforcement notices an 17 of the 40 construction companies involved.

On receipt of the representations to the preliminary enforcement notice, which differed case by case, the Commissioner was satisfied that there was sufficient evidence of such a contravention to serve final enforcement notices in 14 of the 17 outstanding cases'

I can assure you that your company has not been singled out for enforcement action' 14 construction companies have received final enforcement notices in total based on allthe available evidence. As I have explained above, the Commissioner regulates the Act and the level of usage of Mr Kerr's database, whilst important, could not be the only determining factor.

ln terms of reputational damage I would refer you to the fact that the Commissioner's office issued a press release on 6 March 2009 naming all40 construction companies as users of

a6108/20a9 Message Page2 ofå

Mr Kerr's database.

I hope that I have clarified the situation

Yours sincerely,

Catherine Devitt Regulatory Action Division Lawyer lnformation Commissione/s Office Wycliffe House, Water Lane, Wilmslow, Cheshire, SKg 5AF. Tel: 01625 5458ô9 Fax: 01625 il5738 Em ai I : cathy. devitt@iç"8,-g$i,Sdi**g& Wj:qç.ìg# ,

1.j

a6108/20a9 Our Ref: AAI(JM/1D690

: : PERSONAL ADDRESSEE ONLY Mr lan Kerr Trad as The Consultancy Association :

4th March 2009

Dear Mr Kerr

Offence under section l7 of the Data Protection Act 1998 - failure to notify

A file concerning The Consultancy Association has been fonruarded to the Regulatory Action Division legal department for consideration of prosecution. I am -. now writing to advise you that a decision has been taken to prÖsecute'you br non notification under section 17 of the Data Protection Act 1998.

We normally commence prosecutions in the defendant's local magistrates' court; however, I have been informed by David Clancy, lnvestigations Manager that you are willing to travel to the court nearest to this office, which is Macclesfield Magistratãs' Court. Based on this I have obtained a hearing date of 29th April 2009, 10,00am at Macclesfield Magistrates'Court, whose address is Silk House, 6 -B Hibel Road, Macclesfield, Cheshire, SK10 2AB,

We are awaiting the formal summons from the court, which we will serve upon you once received, together with the advance disclosure, which is the evidence upon which we propose to rely.

Yours sincerely

Mrs Aaminah Khan Regulatory Action Divísion Lawyer . ;1:ì

ôur ref:AAKIJM/lDöCO

PERSONAL ADDRESSEE ONLY lan Kerr

25th March 2009

]:|

Dear Mr Kerr

please find enclosed by way of service, summons to appear before Macclesfield Magistrates' Court on igth April 2009 at 1Oam, in relation to,an:P'f,fgnce under section 17(i),21(1\ and 60(2) of the Data Protection Act 1998' A "reply to summons" form is also ãnclosed and I should be grateful if you would return the same in the sae provided. ¡

Under the Criminal Procedure Advance lnformation Rules 2005 advanced disclosure of statements and exhibits are enclosed.

please also find herewith a written notice in relation to S9 Criminal Justice Act 1967 together with a written statement reply form. lf you require any further information please contact this office.

Yours sincerely

JANICE MEAD RAD-Paralegal Ext 5857

encs summons (1) encs reply form & sae (1) statement ¡ncome & outgolngs leaflet(1) 59 Nofice & reply form (1) Statemenfs & Fxhiþlfs - 1 coPY, -\ l'å-J L*.-. t*'1

Our Ref:AAI(JM/1D690

r lan Kerr

lBth May 2009

Dear Mr Kerr, i ICO v lan Kerr Macclesfield Magistrates'Cou¡t 27th May 2009 at 12 noon

please find enclosed a copy letter that has been sent to your solicitor today'

Should you require any further details please do not hesitate to contact me on 01625 545335.

! ''. - Yours sincerely,

Mrs Aaminah Khan Regulatory Action Division

\ Our Ref: AA](JM/|D690

re 34 High Street Wan¡vick CV34 4BE

18th May 2009 D"arI

IGO v lan Kerr Macctesfield Magistrates' Court 27th May 2009 at 12 noon

Further to the above matter, I have noted that the court address on the summons is incorrect,

Please note that the correct court address is:

2nd Floor Silk House Park Green Macclesfield Cheshire SK1 1 7NA

I have sent a copy of this letter to Mr Kerr for his information.

Should you require any further details please do not hesitate to contact me on 01625 545335.

Yours sincerely,

Mrs Aaminah Khan Regulatory Action Division l{

ATTENDANCE NOTE

FILE NAME: lan Kerr Ua The Gonsulting Association

FILE NO¡,

DATED: 03/04/09

Call received from I of Moore & Tibbits advising us that he is acting for Mr Kerr. He asked about adjourning the hearing. I passed,the call to AAK. :;

Page 1 of 1 GlDB\ Our Ref:AAK/JM/1D690

IMoore & Tibbits 34 High Street Wanvick CV34 4BE lBth May 2009

Dear

IGO v lan Kerr Macclesfield Magistrates' Court 27rh May 2009 at 12 noon

Further to the above matter, I have noted that the court address on the summons is incorrect.

Please note that the correct court address is znci Flóoi' Silk House Park Green Macclesfield Cheshire SK11 7NA

I have sent a copy of this letter to Mr Kerr for his information

Should you require any further details please do not hesitate to contact me on 01625 545335.

Yours sincerely,

Mrs Aaminah Khan Regulatory Action Division TßAl{SlllSS l0N REP0HT 20-llAY-99 11 :55

Y()UR NAME: Reg ulatory Action Division Y0UB TEL. N0.;' 016 25545738

ì-HUM IUWNTII':

TO:

DIALLEt) NUMBEB:

PAGES: 2

DURAT I ON: 1'. 14"

RESOLUTION: S TAN t}AR t)

HESULT: t]K TßAl{Sll I SS I 0N REP0HT 20-llAY:09 1 I :55

YOUR NAME: Reg ulatory Action Division Y0Uß TEL. N0.".'r 016 25545738

FR0ïil (DY{NER):

TO:

t) I ALLEI) NUMBEB J

PAGES: 2

DUBAT I ON: 1 ', 14"

R EStl LUT I t]N: S TAN DAR f)

HESULT: tlK a-l¿-' .-1 é'r' ATTEND

FILE NAME: lan Kerr Ua The Gonsulting Association

FILE NO: ID69O

DATED: 21t05t09

JM rang Macclesfield County Court and Magistrates' Court to confirm the time of the hearing 'for 27th May 2009 and also establish the size of the court room, as some ICO staff and Trimedia wished to attend. I was advised that Court 3 was a very small library room.

I spoke to Legal Adviser at Macclesfield County Court who confirmed that the case was listed for 1Oam with a number of other cases, She suggested that if the defendant's solicitor contacted them by fax on 01625 660401 asking for the hearing to be at l1am then she couldn't see any problem.

Ithen rang office advising them and he called back. He was going to contact the court and then let us know the outcome with regard to the time.

Page 1 of 1 G:\DB\ Jnfonrnetlon Commlsslsnen's (]fflce Promoting public acceas to official informstion 8nd protect¡ng your peFsônal information Facsimile

To: Fax no: Moore & Tibbits, Solicitors

From: Janice Mead Direct Line: 01625 545857

Date: 22"d May.2009 Page I of: 3

Subject: lan Kerr - Hearing 27th May 2009

Please find attached costs for the above hearing at Macclesfield as discussed with Aaminah Khan.

This fax and the information in it are intended for the necipient named above. lf you are not the intended necipient please notify us immediately: you should treãl the information in the fax as being in confidence unless otherwise notified by us, Yor: shoulcl not copy it or use it for any purpose or disclclse its contenbs to any person.

lnformation Commissioner's Office, Wycliffe House, U/aten Lane, Wilrnslow, Cheshire, SK9 5AF r: O1625 5457At f: O1625 5?-4510 e: mail@icc,gsi.gov.uk w: informationcornmissioner.gov.uk TRAIISI I SS I 0N..ß-EP0ß.T. .1 {-JllL.- 09 I 5 : 37

Y0UR NAME: Âegu I ato ry Action l}ivisÍon Y0UR TEL. N0. : 01 625545 738

FÊOÌrt (ürlNEil: 0 1 Ê255157 38

TO:

OIALLED NIJMBEB:

PAûES: a

DUTAT I ON: 1'.12"

RESOLUTTON: sïAN{¡480

EESUtT: OK .ti I j

ATTENDANGE NOTE

FILE NAME: lan Kerr Ua The Consulting Association

FILE NO: 1D690

DATED: 10/06/09

AAK rang Chester Crown Court to enquire about whether this had been listed and spoke tof in listings. He said that it still had not been put on the system yet and although it normally would have been by now there had been a lot of training going on lately and it can take a while to get on lhe system. I explained that-l was going on holiday shortly and was wondering how much notice we would get and he explained that normally there would be at least a couple of weeks notice and the delay in it being put on the system would not reduce the notice that we would get.

AAK

Page 1 of 1 G:\DB\ Page 1..of I

Janice Mead

From: Aaminah Khan '1 Sent: 1 June 2009 13:39 To: Janice Mead Subject: Kerr sentencing at Chester Crown

Hi Jan,

The Counsel that I would like to book for the Kerr sentencing is either Owen Edwards or John Williams. both at 1 Stanley Place Chambers, Chester.

Both of these are on the Attorney General's panel of prosecution counsel so they are experienced in prosecuting regulatory crime for other government bodies. lf the clerks asks or suggests the AG's fixed rate, agree to that, as they are very reasonable fixed rates which I believe is currently f 100 for a crown court sentence. lf they suggest a much higher fee than that, can you book them provisionally and advise we will confirm the fee shortly. http;l1www*j Etanleyp-lacg,co,uklo_n gs!qn lçy_çp ntactlt-s_, n tml lf neither are available, see whether the clerks can suggest someone else with similar prosecution experíence. Many thanks 5ö'4CIo Aaminah +

Aaminah Khan P" rsrutt s,S Regulatory Action Division Lawyer /\cttrl "Co I Commissioner's Office nformation LIVL, Wycliffe House, Water Lane, Wilmslow, Cheshire, SKg 5AF Tel: 01625 545335 Fax: 01 625 545738 gsr,g-o-_v_. E m a i I : aamin a"h, kh_a.n @ica* u K WU ,v,.!ç,O.gAY,-Uk

w f t'lo't ' ',? Û'1'*ÜÅ ';tL' ' (*i) \-.= .L.t "'*"* 'l'Í"- ¿:"-¡{. ,oJ¿ Fç..o---- . .-"\ (-Í{\ -'> :r\o-*o L-J- p',p* Sttt I ' orZtç 3Sø 1o5 - t.r rLL o-cù-t¡r g-¿- o-\." Ê õf-{

Õvt Clì' .l* r! ;L (--{t "l;tl "¿l- 'of'-{rt 'ln

17106/2009 Our Ref:AAl(/JMllD690 Your Ref: JS/LMclKl 244001 I Moore & Tibbits 34 High Street Warwick CV34 4BE

2nd Juty 2009 o""rI

IGO v lan Kerr Section 17 Data Protection Act 1998 Ghester Crown Gourt, sitting at Knutsford, 16th July 200g, 10.30am

Please find enclosed an updated prosecution eosts-schedule in relation to the above hearing.

Should you require any further details please do not hesitate to contact me on 01625 545335.

Yours sincerely,

Mrs Aaminah Khan Employed Barrister Regulatory Action Division TnANSI I SS I 0l{ ßEP.gRT* I å:JU.L:9J" 1,5 :-35

YOUB NAME: Regu I atory Action 0ivision YOUR TEL. N0.: 0162554573 I

FROM (O}INEB): 01 625545738

TO:

D IALLED NUMBER:

PAGES: ó

OUBAT I ON: 1', 11"

R ESOLUÏ I ON: STANOARf) flESULT: OK IG

lnforrnation Gomrnlsripncnrg Elffice Promþcing pubtlc eccess to offic¡ãl info¡metior and prot€cting your pprsonal ¡nformÉtior Facsimile

To: Fax no;

From: Aaminah Khan Direct Line:

Date: 14107109 Page I of: 3

Subject: ICO v Kerr JS/LMI|K'12440A1 I Please find enctosed an amended costs schedule in relation to the abovê case. The amendment relates to counsel's fee which was incorrect in the earlier schedule sent on 2nd Juty 2009.

Regards

'Rdminah Khan

This fax arrd the informaüion ln lt are intende d for lhe recipient nanred above. lf you are not the intenrler] recìpien[ please nar,ify us irnrnecliately: you should trËat the inforrnation ln the fax as being in confidence unless otherwise notifiecl by us. Yoir sl¡ould nob copy it nr use it fon any pr-lrpose or disclose its crrnterrts to any person,

lnforrnation Cr:¡nrmissíoner's flffice, Wyciiffe House, Water Lane, Wilmslc¡w, Cheshire, SK.9 5AF r: U1625 5457O0 f; !1625 52451O er mail@ico.çlsi gov.uk r,v: infarrnationcomlnissiÕrier,gov.Ltk TRAllSIlSSl0ll IEP0BI 14-JUL-09 15:03

Y0UR NAME: Res ulatory Action Division Y0UR TEL. N0.: 016 25545738

FffDM {OrlNEB ) : 0 1 625545738

TO:

f)IALLED NUI¡BER

PAGES: 4

DUBAT I ON: 1',48"

R ESOLIJT I ON: STANDARD

R ESULT: OK IIANs¡llSS-l0ü nE-P0nT .?z:tAY-09 14: 10

YOUß NAI,IE: Begulatory Action 0ivision YOUB TEL. N0.-i: 0162554573"8

FROM {OÌ{NEH): 01625s45738

TO:

t} I ALLED NUMBEB :

P,AGES: 3

OUBAT I ON: 1 ', 10"

RESOLUT I ON: STANt)ARt)

fl ESULT : OK Our Ref:AAllJM/|D690 Your Ref: JS/LMc/K1 244001

Moore & Tibbits 34 High Street Wanrick CV34 4BE

2nd July 2oo9

o""tI

ICO v lan Kerr Section 17 Data Protection Act 1998 Ghester Crown Gou¡.t, sitting at Knutsford, 16th July 2009, 10.30am

Please find enclosed an updated prosecution costs schedule in relation to the above ( hearing.

Should you require any further details please do not hesitate to contact me on 01625 545335.

Yours sincerely,

Mrs Aaminah Khan Employed Barrister Regulatory Action Division Our Ref:AAK/JM/|D690 Your Ref: JSlLMclK1244001

Moore & Tibbits 34 High Street Warwick CV34 4BE

3td June 2009

Dear

IGO v lan Kerr Section 17 Data Protection Act 1998 Ghester Grown Gourt, date tbc

Eurther to the direction of the Magistrates on 27th May 2009, please find enclosed a further witness statement of David Clancy, with exhibits, detailing the information that he has obtained regarding the structure, membership and finances of the Consulting Association.

This will be served on the Crown Court, once we have received a listing date from the court.

Should you require any further details please do not hesitate to contact me on 01625 545335.

Yours sincerely,

Mrs Aaminah Khan Regulatory Action Division t Upholdlng lnforrnâtiofi rights Wycllffe House, Water låne, Wllmslow, Cheshlre, SKg 5AF T. 0303 123 1113 F. 01625 524510 www,lco,gov.uk tco.lnlbrmlhñ Connbldût Oík mäll@lco,gsl,gov.uk Reference ÐLC/LK/ 2.807 20LA

ian Kerr

28 July 2010.

AG1996 4A73 4GÐ

Dear Mr Kerr

Re: The Con¡uhing A$oclatlon Recorde

Office served on As you are aware the InfOrmatlgn Comrnlssloners . yoú un çnfÕrçement nùt{Ëå¡ datêd the 2 March 2009, wfileh requlred you to cgmply wlth cer,taln conditions in relátlon to reeb,rds held by the consulting Assoclatlon.

These conditions were that you should,

Refraln from obtalnlng, usÍng or dlsclosing any personal data of the description speclfied ln paragraph 3 of this notlce unless the dlsclosure is necessary for the purpose of complying with any obllgatlon under the Act; obtalning legal advice of for the purpose of, or ín connection wlth, any legal proceedlngs

Refrain from altering, eraslng or destroying any personal data of the description specified ln paragraph 3 of thls notlce.

It has come to the attentlon of the Commissionens OfFlce that records from the Consulting Assoclation are ln clrculatlon and the source of these records is a meter of speculatlon. I would be grateful if you could contact thls offlce ln order to dlscuss thls as a matter of urgency,

Yours sincerely

David Clancy Investigations mana ger 01625 545877 .â F'SC lú¡¡d3or¡¡u r*!HlBnlF{r, hort¡É,ÊrñÉ rn¡.r.¡rdù ---;i;;'ãõ;-* t:r¡¡i*?b DATA PROTECTION ACT 1998

SUPERVISORY POWERS OF THE INFORMATION COMMISSIONER

ENFORCEMENT NOTICE DATED 2 MARGH 2OO9

To: Mr tan Kerr trading as The Consulting Association of:

I Mr lan Kerr trading as The Consulting Association is a "data controlle/' as defined in section 1(1) of the Data Protection Act 1998 (the "Act").

2. The Commissioner was informed that a list was operating within the construction industry. lt was alleged that contractors in the construction industry would send a list of the names of potential staff to the data controller who would then check the names against a list and then advise the contractors of intelligence information which the data controller held in relation to those named on that list. The contractor would then make a decision whether or not to employ an individual on the basis of that information.

3. Qn 23 February 2009 a warrant, granted under Schedule I of the Act, was executed at the premises of the data controller, A search of the premises revealed the following information :

(i) A ring binder containing 3,213 entries in relation to individuals. The entries contained information such as names, dates of birth, national insurance numbers, locations and trades alphabetically listed on pages which had been processed on electronic media.

(ii) A comprehensive card index system constituting an intelligence database. Sorne of the information is over 30 years old and the database contained, amongst other things, personal data relating to the union activity of an individual, his employment conduct together with any information that the individual may pose a threat to industrial relations between an employer and its employees. This database was linked to the information contained in the ring binder referred to in paragraph 3(i)above.

(iii) The identity of organisations ("subscribers") within the construction industry that had access to information contained in the database following contact with the data controller.

1 (iv)Copies of invoices from the data controller to the subscribers for services provided, for example, employment checks on individuals.

(v) Miscellaneous papers for sifting, a computer and other electronic storage media.

4, The Commissioner has considered the data controller's compliance with the provisions of the Act in light of this matter.

6, The First Data Protection Principle provides, at Part I of Schedule 1 to the Act, that:

"Personal data shallbe processed fairly and lawfully and, in pañicular, shall not be processed unless-

(a) at least one of the conditions in Schedule 2 is met, and

(b) in the case of senslfiye personal data, at least one of the conditions r's Schedu/e 3 is also met."

Paragraph 2 of Pad ll of Schedule 1 to the Act further provides that:

Sub-sectian 1

"Subject to paragraph 3, for the purposes of the first principle personal data are not to be treated as processed fairly unless-

(a) in the case of data obtained from the data subject, the data controller ensures so far as practicable that the data subject has, is provided with, or has made readily available to him, the information specified in sub- paragraph (3), and

(b) in any other case, the data controller ensures so far as practicable that, before the relevant time or as soon as practicable after that time, the data subjecf ñas, is provided with, or has made readily available to him, the information specified in sub-paragraph (3).

Sub-section 2

ln sub-paragraph (1)(b) "the relevant time" means-

(a) The time when the data controller flrsf processes fhe data, or

(b) ln a case where at that time disclosure fo a third pariy within a reasonable period is envisaged-

2 (i) tf the data are in facf dlsc/osed to such a person within that periad, the time when the data are flrsf dlsc/osed

(ii) if within that period the data controller becomes, or ought to became, aware that the data are unlikely to be disclosed to such a person within that period, the time when the data controller does become, or ought to become, so aware, or

(¡ii) ln any other case, the end of that period.

Sub-secfion 3

The information referred to in sub-paragraph (1) ls as fol/ot¿¡s, namely-

(a) the identity of the data controller,

(b) if he has nominated a representative for the purposes of this Act, the identity of that representative,

(d) any further information which is necessary, having " regard-to the specific eircumstances in which the data are ar are to be processed fo enable processing in respect of the data subject to be fair."

-) In view of the matters referred to above the Gommissioner hereby gives notice that, in exercise of his powers under section 40 of the Act, he requires that the data controller shall by 10 March 2009 take the following steps:

(2) Refrain from altering, erasing or destroying any personal data of the description specified in paragraph 3 of this Notice.

Right of Appeal

There is a right of appeal against this Notice to the lnformation Tribunal lnformation about appeals is set out in the attached Annex 1.

Any Notice of Appeal should be served on the Tribunal wfthin 28 days of the date on which this Notice is served. lf the Notice of Appeal is served late the Triþunal will not accept it unless it is of the opinion that it is just and right to do so by reason of special circumstances.

Statement of urgency and reasons

4 Dated the 2nd day of March 2009

David Smith Deputy lnformation Commissioner Wycliffe House Water Lane Wilmslow Cheshire SKg 5AF

) ANNEX 1

THE DATA PROTECTION ACT 1998 (PART V, SECTION 40)

RIGHTS OF APPEAL AGAINST DECISIONS OF THE GOMMISSIONER

1 Section 48 of the Data Protection Act 1998 gives any person upon whom an enforcement notice has been served a right of appeal to the lnformation Tribunal (the "Tribunal") against the notice.

2, lf you decide to appeal and if the Tribunal considers:-

a) that the notice against which the appeal is brought is not in accordance with the law; or

4. On an appeal in respect of the statement of urgency the Tribunal may direct that the notice shall have effect as if it did not contain any such statement or, that the inclusion of the statement shall not have effect in relation to any part of the notice, and may make such modifications ín the notice as may be required for giving effect to the direction.

S. You may bring an appeal by serving a notice of appeal on the Secretary to the lnformation Tribunal, Arnhem House Support Centre, PO Box 6987, Leicester, Leicestershire, LE1 6ZX.

a) The notice of appeal should be served on the Tribunal within 28 days of the date on which notice of the Commissioner's decision was served on or given to You.

b) lf your notice of appeal is late the Tribunal will not accept ít unless it is of the opinion that it is just and right to do so by reason of special circumstances.

c) lf you send your notice of appeal by post to the Tribunal, either in a registered letter or by the recorded delivery service, it will be treated

6 as having been served on the Tribunal on the date on which it is received for dispatch by the Post Office.

6 The notice of appeal should state:-

a) your name and address; b) the decision which you are disputing and the date on which the notice relating to such decision was served on or given to you;

c) the grounds of your appeal; d) whether you consider that you are likely to wish a hearing to be held by the Tribunal or not;

e) if you have exceeded the 28 day time limit mentioned above the special circumstances which you consider justify the acceptance of your notice of appeal by the Tribunal; and

f) an address for service of notices and other documents on you.

ln addition, a notice of appeal may include a request for an early hearing of the appeal and the reasons for that request.

7. By virtue of section AAU), an eTìforcement notice may not require any of the provisions of the notice to be complied with before the end of the period in which an appeal can be brought and, if such an appeal is brought, the notice need not be complied with pending the determination or withdrawal of the appeal.

However, section 40(7) does not apply where the notice contains a statement that the Commissioner considers that the notice should be complied with as a matter of urgency.

Section 48(3) provides that where an enforcement notice contains a statement that the notice should be complied with as a matter of urgency then, whether or not you intend to appeal against the notice, you may appeal against -

(a) the Commissioner's decision to include the statement in the notice, or (b) the effect of the inclusion of the statement as respects any part of the notice.

I Before deciding whether or not to appeal you may wish to consult your solicitor or another adviser. At the hearing of an appeal a party may conduct his case himself or may be represented by any person whom he may appoint for that purpose.

- 7,, The statutory provisions concerning appeals to the lnformation Tribunal are contained in sections 48 and 49 of, and Schedule 6 to, the Data Protection Act 1998, and the lnformation Tribunal (Enforcement Appeals) Rules 2005 (Statutory Instrument 2005, No. 14).

I Your ref: SES/LS/AED/ICO Our ref: MG/CLD lnformatlon Commlrllonsntg Ctff Promotlng public accees to off¡cisl informÊt and proÈ€ct¡ng your personsl informatl

rector Shepherd Engineering Services Limited ("SES") Head Office Mill Mount York YO24 1GH

25 August 2009

Dear

Re: Enforcement Notice dated 3 August 2009 - SES

Thank you for your letter dated 19 August 2009 together with enclosures.

I am encouraged by the action that has already been taken by SES in relation to this matter and note the self-intervention in2007 to actively cease the use of the Consulting Association ("TCA") for reference checks. ln light of this you have asked me to consider early closure of the Enforcement Notice dated 3 August 2009 (the "Notice").

You will appreciate that the Commissioner has to be consistent in his dealings w.ith all of the construction companies who have received Enforcement Notices in relation to their use of TCA, many of whom are in a similar position to SES. The Commissioner considers this matter to be a serious infringement of the Data Protection Act 1998 (the "Act") even though the relationship with TCA may be historical.

At the same time I can fully understand your concerns ín relation to the business reputation of SES. ln the circumstances, on or afler 3 August 2010, the Commissioner will consider whether it would be appropriate to cancel the Notice under section 41 ol the Act following further representations from SES in this regard.

I hope that I have clarified our position.

Yours^sincerely fù't - -- Mick Gorrill Assistant Commissioner Regulatory Action Division

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Fxç Briefing to David Smith re The Consulting Association and the Construction lndustry.

25 February 2009.

On Monday the 23'd February 2009 a warrant, granted under schedule I of the Data Protection Act 1998( The 'ACT'), was executed at the premises of The consulting Association situated at 4 High street Droitwich.

On the premises at the time of the execution of the warrant was Mr lan Kerr who described himself as the manger of The Consulting Association (TCA) which he described as a trade association within the construction industry.

A search of the premises revealed the following information

a A ring binder titled Monodex copy 14.06.95. This contained 3213 entries in relation to named individuals. The entries contained information such as names, dates of birth, national insurance numbers, locations and trades,

A number of entries were cross referenced and these either indicated associations between individuals or were linking two names to the same person.

a A comprehensive card index system which was for all intent a purpose formed an intelligence database. This database linked in with the information contained in the Monodex Copy gave almost instant access to the information held on the named individuals. This system is clearly a relevant filing system for the purpose of the Act

a The identity of organisations (subscribers) within the mechanical and construction industry that appeared to have access to information contained in the database via contact with Kerr. These organisations would also provide Kerr with intelligence which would then populate the database.

a Copies of invoices from TCA to the subscribers for services provided (checks on individuals, intelligence updates on other activities such as Friends of the Earth protest etc and fees for attending quarterly meetings)

a Miscellaneous papers for sifting, a computer for forensic analysis and other electronic storage media.

From discussion with Kerr it would appear that the details of a prospective employee would be faxed through to TCA. A check would then be made on the Monodex file. lf there was no entry on the file the subscriber would be informed of this immediatelY" lf there was an entry on the Monodex file the intelligence system would then be accessed and the infornration held on the individual would then be reviewed. A verbal report woufd be made to a senior designated person with the subscribers organisation who would, in light of the infornration provided, make the clecision as to whether to employ the prospective employee or not,

Examples of the intelligence held, Section 40 ection 40

Subscribers of TGA's Services

Morgan Est Morgan Ashurst Balfour Beatty Civil Engineering Balfour Kilpatrick Ba lfour Beatty lnfrastructure Sir Robert McAlpine Vinci plc Crown House Bam Nuttall Skanska Cleveland Bridge Shepherd Engineering C.B&I Emcor Haden Young BB Scottish & Southern N,G Bailey Costain Bam Construction Kier Limited Laing Diamond M&E SIAS SPIE Matthew Hall HBG Construction Edmund Nuttall WHESSOE

Combined total of over 40,000 direct employees and [13 billion pound turnover-

Conclusion

The entire process employed Þy TCA fails to meet the requirements of the first principte. There is clear evidence that a large proportion of the information processed relates to trades unions activity and there is certainly no schedule 3 condition met in this scenario, ln relation to the other non union information it is unclear wllich 'schedüle 2 conditions that they would rely on. The very nature of the covert operation of the list goes against the concept of the fair processing of personal information, ln relation to the second principle it is clear that there has been a further use of the information provided/gathered by the employers when tlre information is fed back to TCA. This would certain be incompatible with lhe purpose for which the information was originally obtained.

It is qLrestionable whether information which is processed in breach of the first, second and fourth principles could ever be adequate or relevant and would appear loo certainly to be excessive.

The information is hardly ever verified with any source other than the sr-lbscriber so issues of accuracy and necessity would always be in questíon'

As inclicated above some oT the information is over 30 years old so it is fair to say it is likely that it has been kept for longer than is rìecessary,

The individuals whose informatìon is being processed may be awâre of the existence of the "blacklist" however, the identity of the data controller has been a secret for in excess of 15 years. As a result of this it cannot have been processed in accordance with the ríghts of those individuals, finally

I can confirnr that the information held by TCA was kept securely in lockecl cabinets/safes in locked alarrned offices. The Way Forward

Consideration woulcl have to be given as to how we would deal with all the relevant parties involved in this maller, They can be identified as follows

The ConsultancY Association

The Subscriber comPanies

The lndividuals, and

BERR (they have looked into this matter in the past and found thal there is no evidence of the operation of a blacklist) lnitial thoughls are as follows

The Gonsulting Association,

The information that we have recovered will, at some point in time have to be copied and returned to them as We have no right in law to retain the informatíon other than for potential Tribunal proceedings. As this would provide them with the means to operate their procedures again we would ¡ ' hávé to'consider timely enforcement action. ' '

Advice and guidance has been sought from Cathy Devitt in RAD Legal on this matter and there are two potential routes for regulatory action'

In light of the specìal circumstances il may be appropriate to issue an Enforcemenl Notice under the provisions of section 40 (B) requiring compliance with the notice no later than 7 days from service of the notice' To my knowleclge this would be the first time such a notice has been served, however, I am of the opinion that such a notice is appropriate in these circumstances as I believe that TCA and its subscribers have a vested interest in ensuring that the bltsiness continues to operate in some shape or form.

The Enforcement Notice should clirect TCA to expunge all intelligence that they hold in relation to the individuals and all future processing musl comply with Ìhe data protection principles'

The alternative to this course of actiorr would be to go down the normal Enforcement Noìice roule allowing TCA time to appeal to the Tribunal' This oplion may be taken as it is clear that to conrply with the notice would in effect close down their business. The Subscribers

These organisations have acted in concert with TCA in operating this system for a number of years and one of the features of the industry is that they rnerge, buyout and interchange legal status on a regular basis.

As a result of this we could lake regulatory action against any one of the companies on the list today and there would be no guarantee that they wor-lld operate under that identify at some point in future,

The solution to this could be that the Comnrissioner nrakes a special reporl to Parllament uncJer section 52 (2) of the Act. This report could outline how the conduct of the TCA and the subscriber organisations breaches the fundanrental principle underpinning the Act and that their actions would require a change in the lawto ensure that individuals are afforded appropriate proteclion when there sensitive personal information is being processed (this would require the Secretary of State to make an order under the 1999 Act)

ïhe Individuals

This is a difficult area. Once the matter goes public there will be a great number of those affected seeking to establish what information was processed about them by TCA and the subscribers. They rnay want 1o seek compensation under the Act for financial lpçs,reçultíng in lhe operation of the intelligence system.

There are a number of alternatives available in light of the information in possession of the lCO,

1. try and idenlify the individuais and contact them to inform them that they were on the list and the information held - Problem - due to the nature of the inforrnation held we would have to use the nalional insurance numbers to get their latest addresses (also establish whether they were still alive) logistically time consuming and labour intensive

2. publicise the existence of the list and advise thal itindiviciuals believe they were on the líst to contact the office, prove their identity and they would be given a copy of their information with instructions as to how to seek compensation under the Act.

3. encourage a trustecl third party (The TUC) to operate the process at 2,

BERR.

As mentioned they had looked at the area of blacklisting in the run up to the 'They 2003 review of the Ënrploymerrt Relations Act'1999. found that there was no evidence of the existence of any blacklisting practices in operation since the 1980's. ln light of this offences relating to the operating of blacklist in relation to union activity were not enacted and it was left that the Secretary of State can issue an order should evidence of such activity be found. I have previously met with Bernard Carter, Assistant Director, Employment Relations Directorate who described this situation as polítically sensitive. He may be an idealfirst point of contact if we engage with BERR on this matter.

David Clancy ¡nvêst¡gatiön,s Ma nager

I 1:¿1¡ 1,;q g y lnformation Êommissionar'5 Off¡c€ Promoì¡no public accese Èo oFf¡cinl intormÐbior and Þ¡ótecùlng your porsonel itrformabior

Me,rno

Search Warrant, Haden Young, 42-44 Clarendon Road, Watford, WD171DR

The warrant is to be executed at the head office of Haden Young Limited, a major construction company, situated al 42-44 Clarendon Road, Walford. The objective of the warrant is to attempt to find evidence in relation to the blacklisting of workers within the construction industry.

We have evidence that shows that recruitment agencies (Euronational & Redwood Engineering Services) are advised of vacancies by Haden thgy are asked to fill þ. i t'..- t, t Y:llg 9F these vacancies. When they have identified potential suitably experienced individuals they and national insurance numbers, by faX, to Haden Young's Tamwo send the names 4A office. The fax was then fon¡varded on er 295109. This X

number is shown on the internet to be associated with the training section of Haden ection 40 Young at Clarendon Road, Watford n entífied as working for the Haden Young Director of Personnel. The purpose of the faxes is to allow "security checks" to be carried out but I believe that this is a terrn used to indicate that the details should be checked with a third party who operates the blacklist.

Course of Action.

On entering the premises there will be four identifiable areas where we should be looking to engage staff at Haclen Young, 1, The Director of Personnel / Company Secrelary. (Dave Clancy)

We will need to identify to either of those persons the purpose for our visit and the natr¡re of the powers that we are exercísing. We should make it as clear as possible that we would expect their fullest co-operation in order for the execution of the

warant to take place in such a manner as to linrit disruption. 11 should be made clear that any attempt to obstruct the execution of lhe warrant is an offence,

2. The training department fax machine. (Karl Quinn)

It is essential that we identify âs soofì,,âs practicable the location of the fax machine associated with the number 01923 295109, lt is essential that this machine is located as it may have information on it in relation to new "security checks"

3. (Diana Shields) on 40

lf we can we would want to ask herto show us how she processes the "security checks" as we would be looking for any information that would assist us in identifying the operator of the blacklist

4. Accounts (Steve Flack)

We would be looking 1o establish the identity of any third parties tlrat might be providing any consultancy services which rnay be linked to the operation of the blacklist

I attach copies of narnes from 3 lists'that have previously been circulated amongst some parts of the construction industry. The names are associated with individuals who had been employed of various large construction projects, the Royal Opera House, The Jutrilee Line Extension and the Pfizer Project. lt is believed lhal lhe named individuals may have been placed on the lists because of their Trade Unions activity including incjustrial action. lf that is the case and we recover evidence to that effect tltis may result in legislation making the operation of such a list a criminal offence. I have a copy of the warr¿nt application which gives a full breakdown of the ICO:s concerns about the operation of the blacklist and the evidence that we have to indicate the extent tO'which Haden Yor.rng operate a system of screening against the list'

Andy Wood wlll provide assistance as and when required

Risk Assessment,

Owing to the nåtur€:of the Haden Young it is not anticipated that there âre any risks to staff executing the Warrant, accordingly, the police wlll not be contacted.

David Clancy lnveStigating Officer

* iî.+ a" ì" Reference 210423

Dear

Re: Recruitment Practices

ïhe lnformation Commissioner is the independent regulator responsible for overseeing the application of the Data Protection Act 1998, a piece of legislation put in place to protect the rights of individuals in relation to the processing of their personal information.

I am an investigating officer employed by the Commissioner and I have been asked to look at cedain practices within the construction Índustry which we believe indicates that the Act is not being complied with and as a result individuals may be disadvantaged,

It has come to my attention that you applied for a job with Haden Young Limited via the Euronational recruitmenl agency back in February 2005. I would be grateful if you could confirm whether or not you were successfulwith your application and if not were you given a reason, or, do you think that there were any other factors which applied.

I have enclosed a prepaid envelope for your reply, alternatively please feel free to ring me on 01625 545877 .

Yours sincerely

David Clancy lnvestigating Officer.