Best Practice Update

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Parents and students covertly recording conversations

We've had a few questions recently about parents and students recording conversations with members of staff, both covertly or overtly without seeking permission. This article only covers recordings made by external individuals, not organisations or individuals acting on behalf of an organisation.

So, is this lawful under the Data Protection Act 2018?

The important thing here is that the individual recorded the conversation, not the school. There is nothing in GDPR to stop them from doing this, and they do not have to give prior knowledge. 
Article 2.2.c states that: 
"This Regulation does not apply to the processing of personal a natural person in the course of a purely personal or household activity"
Recital 18 of the GDPR explains further:

"This Regulation does not apply to the processing of personal data by a natural person in the course of a purely personal or household activity and thus with no connection to a professional or commercial activity. Personal or household activities could include correspondence and the holding of addresses, or social networking and online activity undertaken within the context of such activities. However, this Regulation applies to controllers or processors which provide the means for processing personal data for such personal or household activities."

There are some issues around Article 8 of the Human Rights Act - in that is this a breach of privacy of the individuals who were recorded. However, as the issue is likely to be the private life of the child and parent and staff are having this discussion as part of their role within a "public authority" that's unlikely to stick.
So, this isn't really a GDPR issue, as it doesn't actually apply unless the recording is made under the instructions of another data controller for non-household use. In that case, the controller would have to be able to define the lawful basis for processing.
There is nothing in the Data Protection Act that allows you demand an individual deletes a recording made for personal use - it just isn't within the scope of the law.
What if this was going to be used as evidence in a formal proceeding?
For this to be admissible in a formal proceeding it would first have to be relevant to the issue in hand - i.e. the subject of the conversation has to be relevant to the proceeding. But a conversation recorded under the household/personal use exemption could be admitted.
What if the information was provided in confidence?
So even if not a GDPR issue, there may be a breach of confidentiality. And for that to be met the information must have been shared in confidence. If that information is shared with a third-party without authorisation, then there is a possible breach of confidence if personal data or other information that would have been expected to remain private was disclosed. There is some case law around wrongful use of confidential information if it prejudices the individual - but again, where this relates to work undertaken in the public interest it's a grey area.
If the information disclosed was related to the individual recording, then it's likely to be their data and they can share it if they wish.
Isn't there anything that makes this unlawful?
Technically you need a landowner's permission to do things on the property, including make recordings. But I think it would be a stretch to enforce that on school grounds, where the person(s) recorded were discussing a task in the public interest in their role as a representative of the school.
Is the issue the tone and character of the individual or the content of the conversation?
Neither really are really GDPR, but potentially civil matters. And if the parent's concern is justified, then I the public interest argument likely outweighs other considerations, though this would have to be looked at on a case-by-case basis.
This is what the Cafcass Operating Framework states about covert recording:
'We should have nothing to fear from covert recording. Our attitude should be, “I am doing my job and I have nothing to hide. I can explain why I said what I said or why I did what I did”. This is within the spirit of transparency in the family courts. We should always be transparent in our work, to meet contemporary expectations, including being able to defend whatever we say or write in a court under cross-examination, because we are working to a professional standard on behalf of a child. In this sense, we should expect that everything we say or write could become public knowledge.'
Another useful resource (if a little dated) is:  
DPE very much subscribes to that philosophy - whether written or spoken, only speak or write professionally and factually. If what you write or say is inappropriate if it becomes public, it's inappropriate to do it in the first place.
A simple acceptable use agreement declaring intent to record could be used but isn't practical for those conversations at the school gates, nor, unless is completely freely given, is likely to be admissible anyway.
You should, however, ensure that staff codes of conduct are fit for purpose and that any HR also review and consider your guidance.