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I am in the position where I applied for a job in my current institution and did not get the position. I think one of my referees may have provided a negative reference. I know that Universities (or companies) are under no obligation, normally, to show a candidate the reference letter they received for them. However, I am already employed by them in a different role and therefore couldn't I ask for a copy of the reference letter under the DPA? i.e. my employer must provide any information they have on the system about me upon request.

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  • 2
    I think in some countries, employers are obliged to show you all information they have about you, whether or not you are employed by them.
    – L_G
    Sep 30 '21 at 12:49
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    Whether you can see it or not, what is the point ultimately? What will you do with the information?
    – Jon Custer
    Sep 30 '21 at 13:24
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    @John Custer good question. Not asking the reference for a LoR again, perhaps.
    – henning
    Sep 30 '21 at 17:38
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    I joined this community just to make this comment. Pro tip: When you ask someone to be a job reference for you, you should ask, "Are you able to provide an excellent recommendation for me if I use you as a reference for XXX?" If they hesitate or say no, find someone else.
    – Ryan
    Oct 1 '21 at 22:08
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While the question is about whether you are legally entitled to see the letter, I will take the liberty to comment on the question of "should you want to see the letter".

The questions are this: (i) What are the costs associated with requesting the information? (ii) What are the benefits?

As for the costs: Your university (i.e., the people in your department) is likely going to be aggravated by the request. They asked someone for a letter of recommendation, which is generally requested under the assumption that these letters will remain confidential because that is the only way letter writers will be candid. So it is embarrassing for a department to have to let a letter writer know that they will have to make the letter available to the candidate. It is also aggravating to the letter writer themselves, who believed that they can give candid advice. Nobody is going to be happy to break the promise of confidentiality, and people will talk about it because it is so aggravating. It will cost you in terms of your position in the department and your community.

So what are the benefits? Likely none other than you knowing that you shouldn't take that one person as a letter writer again -- but you already suspected that. There is nothing you stand to gain from learning what was in that letter that would help you in the future.

In other words, asking to see that letter is all cost and no benefit. Just don't do it.

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    Costs: I agree with some of this. But they should not have made any promise of confidentiality if the law says it cannot be confidential. Benefits: OP might learn that the letter was good, or might get some useful criticism from it, or might learn for certain that it was bad and contained unreasonable criticism. So there is plenty that OP might stand to gain. I am not saying I recommend asking to see the letter, just disagreeing with Wolfgang about some points.
    – L_G
    Sep 30 '21 at 17:13
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    Worth emphasizing perhaps that any letter writer would be likely to be irritated by someone forcing a previously confidential letter to be released. So, you may not want to have that reference write a letter again even if it's good - their next one might not be. Kind of hard to even see a benefit there, then.
    – Bryan Krause
    Sep 30 '21 at 18:27
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    @L_G Well they might not know for certain that the current letter is bad, but they can be rather certain that the next one will be.. so they do know what to do next time.
    – Voo
    Sep 30 '21 at 22:48
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    If I knew that someone had requested my letter, I would not be willing to write for them again in the future. Oct 1 '21 at 15:50
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    Asking for full information disclosure is a "right", indeed, but generally speaking, it is normally employed as a last-ditch effort to move forward with litigation procedures, or something similar, when all other measures have been exhausted, and when bridges are already starting to get burned. If other faculty finds out that a faculty member asked for the revocation of privacy just because they automatically assume someone was out to frame them, this will almost certainly poison the whole environment from the start. If OP still has collegial relations with others, I cannot recommend this.
    – djohn
    Oct 1 '21 at 16:16
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Your university should have a procedure regarding the data request. For example, I found these three websites from UK universities regarding this topic:

  1. SOAS
  2. U of Sussex
  3. Bath

These all state that you are allowed to request an overview of which data is stored regarding you, and get access to all that data as well.

Furthermore, this website states that job interview documents also fall under the DPA:

Yes, job applicants have the right to see interview notes if the notes are either transferred to computer or form part of a "relevant filing system". The UK General Data Protection Regulation (retained from EU Regulation 2016/679 EU) (UK GDPR) gives job applicants and other data subjects the right to request copies of personal data that an employer holds about them.

So if these reference letters are stored in a university system, you should be allowed to obtain them. However, it is possible that these documents have been removed after the interview process ended.

Whether or not you are already employed by this institution shouldn't make a difference.

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  • Many thanks!! I thought the same thing about "Whether or not you are already employed by this institution shouldn't make a difference", but the UK gov website says "Once the worker starts with a new employer they can ask to see a copy of a reference. They have no right to ask their previous employer.". gov.uk/work-reference. So was not sure on this.
    – Hello
    Sep 30 '21 at 13:12
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    Also in the first link in the exemptions it says "You have requested data contained in a confidential reference". So I think it would have to be done under DPA for a current employer only.
    – Hello
    Sep 30 '21 at 13:18
  • "Once the worker starts with a new employer they can ask to see a copy of a reference. They have no right to ask their previous employer." I think this looks wrong as it seems to contradict the general data protection law. You could ask the government department for clarification yourself.
    – L_G
    Sep 30 '21 at 13:42
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    "job applicants have the right to see interview notes if the notes are either transferred to computer or form part of a "relevant filing system". - and certainly outside academia, every HR department in the UK already knows that and knows how to legally work round it, so don't get too optimistic about your "rights". (For example, the quote says "the notes". It doesn't say "the information content that was contained in the notes.")
    – alephzero
    Sep 30 '21 at 22:48
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    When ever we interview we are required to keep the notes for 6 months after the interview, however those notes were taken (I presume as a matter of policy, rather than law). Certainly you the institution may be required to demonstrate in a tribunal that the hiring process wasn't discriminatory against people with a protected characteristic, and having the notes helps with this (as long as you weren't discriminatory). And yes, you can request any personal information held by anyone about you by any company. You can't ask your former employer because they won't keep it. Oct 2 '21 at 15:18
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This question would probably be a better fit on law.stackexchange.com but as you've asked it here I'll provide the legal answer.

Yes, you can ask (taking the question literally).

That doesn't mean that they have to give it to you though.

Your general rights of access to personal data come from Article 15(1) - (3) of the GDPR.

This is subject to various exceptions. Of relevance here is paragraphs 18 and 24 of schedule 2 of the Data Protection Act 2018 (the "DPA") (emphasis mine):

24 - The listed GDPR provisions do not apply to personal data consisting of a reference given (or to be given) in confidence for the purposes of (a) the education, training or employment (or prospective education, training or employment) of the data subject [...]

18 - In this Part of this Schedule, “the listed GDPR provisions” means the following provisions of the UK GDPR (the rights and obligations in which may be restricted by virtue of Article 23(1) of the UK GDPR) - [...] (c) Article 15(1) to (3) (confirmation of processing, access to data and safeguards for third country transfers) [...]

In fact, they might be obligated not to give you a copy of the reference. That's because the reference is also personal data belonging to the person who wrote it. Giving you a copy means "processing" the data (per the definition of processing in Article 4(2) of the GDPR), and a data controller can only process data to the extent that they have a lawful basis for doing so. In this case the only likely lawful basis is that they have the consent of the person who wrote the reference.

Because of this, there is an additional exemption in the DPA which is applicable here. I'm mentioning this only for completeness; the first exemption is sufficient. Paragraph 16 of schedule 2 of the DPA provides (emphasis mine):

1 - Article 15(1) to (3) of the GDPR (confirmation of processing, access to data and safeguards for third country transfers), and Article 5 of the GDPR so far as its provisions correspond to the rights and obligations provided for in Article 15(1) to (3), do not oblige a controller to disclose information to the data subject to the extent that doing so would involve disclosing information relating to another individual who can be identified from the information.

2 - Sub-paragraph (1) does not remove the controller’s obligation where (a) the other individual has consented to the disclosure of the information to the data subject, or (b) it is reasonable to disclose the information to the data subject without the consent of the other individual.

3 - In determining whether it is reasonable to disclose the information without consent, the controller must have regard to all the relevant circumstances, including (a) the type of information that would be disclosed, (b) any duty of confidentiality owed to the other individual, (c) any steps taken by the controller with a view to seeking the consent of the other individual, (d) whether the other individual is capable of giving consent, and (e) any express refusal of consent by the other individual.

4 - For the purposes of this paragraph (a) “information relating to another individual” includes information identifying the other individual as the source of information; (b) an individual can be identified from information to be provided to a data subject by a controller if the individual can be identified from (i) that information, or (ii) that information and any other information that the controller reasonably believes the data subject is likely to possess or obtain.

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  • Are interview notes (notes made by the interviewers during or after the interview) also an exception?
    – L_G
    Oct 2 '21 at 10:02
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    @L_G I don't see anything in schedule 2 about interview notes specifically. There is this though: "23 - The listed GDPR provisions do not apply to personal data that consists of records of the intentions of the controller in relation to any negotiations with the data subject to the extent that the application of those provisions would be likely to prejudice those negotiations.". Given the wording, that might exempt interview notes while the decision to hire (and to agree salary and terms etc.) is still pending, but probably not afterwards.
    – JBentley
    Oct 2 '21 at 11:12
  • Thank you. It looks to me like 23 would not apply if you just decided to hire or reject a person, because that is not a negotiation. But it would apply if you were negotiating what salary to pay them, and then you would be allowed to keep notes secret if they were directly related to the salary. Is that what it means?
    – L_G
    Oct 2 '21 at 14:29
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    @L_G That sounds almost right, yes. But they don't have to be directly related to the salary. It's enough that a GDPR request would be "likely to prejudice those negotiations". So for example an interview note which said "This is the only suitable candidate we have interviewed" could be prejudicial as it makes it obvious the candidate has a strong bargaining position.
    – JBentley
    Oct 2 '21 at 18:17
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Frame challenge. Others have explained why requesting to see the reference letter through the data protection act may be a bad idea.

Other suggestion: arrange a confidential meeting with the person who you suspect may have written a poor reference, and ask them if they think they wrote a strong reference letter. There are essentially three possible responses you might get: yes, no, or decline to answer. The answer may or may not be truthful. Make sure your question does not come across as pressing for information they might not want to share. You may or may not get wiser, but the costs will be much lower (perhaps close to zero) than the costs for going through the data protection act.

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