Section 56 of the Data Protection Act (the last section to be implemented) will shortly be brought into force, making enforced subject access requests a criminal offence in certain circumstances.
Enforced subject access occurs where one person is compelled by another, perhaps an employer or prospective employer, to make a subject access request under the Data Protection Act and reveal the response. Enforced subject access requests are commonly used to reveal details of any criminal convictions held by the requestor.
Enforced subject access requests not only represent an abuse of an individual's rights, but also potentially undermine important public policies. For example, a subject access request to the Police about an individual's criminal convictions would reveal more information than the individual would otherwise have to declare to their employer; in particular, that information might include spent convictions under the Rehabilitation of Offenders Act.
Section 56 of the Data Protection Act was intended to combat the issue of enforced subject access; specifically, section 56 makes it a criminal offence in certain circumstances to require an individual to reveal the results of a subject access request made to the data controllers specified in section 56 (including the Police) and which contain the information specified in that section. However, despite the entry into force of the Act in March 2000, this provision has only been partially implemented. However, on 13 February 2014, the Government announced that section 56 will be brought into force in the near future.
While enforced subject access is highly discouraged by the ICO, this change will now render such practices a criminal offence in the circumstances set out in section 56. Organisations that require individuals to make subject access requests and disclose the results to them will now need to consider such requirements against section 56 or risk prosecution from the ICO. The coming into force of section 56 will not, however, prevent employers from carrying out Disclosure and Barring Service checks in relation to the recruitment of employees to occupations covered by the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975.