Considerations when using an investigator to trace a friend or family member

Tremark are asked daily to trace individuals for a number of reasons. Missing children, debtors, potential business partners, old school friends, beneficiaries, former neighbours, acquaintances. The list is endless.

Very recently a reputable law firm contacted me to ask us to trace the estranged son of an elderly gentleman who was dying. The fathers dying wish was to speak with his son and include him within his will. It was explained to me that the father and son had not spoken for several years since the breakdown of the fathers and mothers marriage and that the father wanted to try and make amends.

Legal reasoning to process an individual’s data

The experienced solicitor was somewhat surprised when I explained that what we first needed to do was address whether the father had a ‘legitimate interest’ to commission the enquiry.

In the absence of ‘consent’, most investigations usually rely on the client’s ‘legitimate interest’ as the right to process an individual’s personal data. The process of ascertaining whether a client has a ‘legitimate interest’ is recorded in a data privacy impact assessment (DPIA), which covers several areas of data protection and data security clarified in the General Data Protection Regulation (GDPR).

A DPIA is undertaken before any investigation takes place and includes a three-part test, broken down as follows: –

Purpose test – is there a legitimate interest behind the processing?

Necessity test – is the processing necessary for that purpose?

Balancing test – is the legitimate interest overridden by the individual’s interests, rights or freedoms?

Clearly, in the example above the son has an absolute and fundamental right to privacy, he has had the ability to get in touch with his father who had not moved address but had chosen not to do so. Does the fathers wish to ‘make amends’ outweigh the sons fundamental right to privacy? No.

However, in such cases, the investigator can try and obtain post trace consent. In other words, obtain permission from the individual traced to pass back their whereabouts to the instructing party. This may include the reading of a letter from the instructing party by the investigator to the traced individual. The investigators actions could later be verified if required by an independent within the Association of British Investigators (assuming the investigator is a member).

Financial Claims

Where there is a financial claim by a family member then it is likely that ‘legitimate interest’ could be relied upon, as the legal reasoning to enable an investigator to undertake the enquiry without obtaining consent. This is because locating the data subject is an obvious necessity to enable the claimant, to pursue any remedy through the court.

Provide a detailed brief

It is important that when instructing an investigator that the client provides a detailed brief right at the point of instruction. There is nothing more frustrating than spending hours to obtain a new lead or piece of information to be later told by the client ‘I already knew that’!

Information to be provided to the investigator is likely to include, Full name, date of birth, last known addresses, all known telephone numbers and email addresses, photographs, family members, friends, clubs and other places of interest.

Investigatory methods

The method of investigation used to conduct the trace must be proportionate, reasonable, justified, un-intrusive and within the principles of the Data Protection Act 2018 (DPA), which incorporates the GDPR.

An investigator will have certain powerful tools at his or her disposal, which may enable them to complete most, if not all, the enquiries from their desk, utilising some if not all the above listed data categories. Tremark invest in several specialist databases that collect and link offline, online, social and consented data. They create links or signposts to potential addresses that allow the investigator to research further.

Some commercial and consumer databases are restricted in their use, so it is important that the investigator fully understands the GDPR implications in each individual case scenario. Incorrectly accessing a restricted database may be in breach of DPA and create a potential criminal offence for both the investigator and his client. Accessing many databases will also leave a footprint, something you may wish to avoid.

Birth, death and marriage records are freely available in the UK and can provide conclusive information.

Tremark investigators are trained in deep searching of the internet and social media profiles, which may provide leads or other vital pieces of information to the investigation. This desktop research may be supported by discreet telephone enquiries to corroborate data.

Where a result is not being achieved from research and telephone enquiries the investigator may suggest the need resort to some old-fashioned bespoke enquiries by physically attending addresses. However, it should be noted that such bespoke enquiries are likely to drive up the cost, so clients should ensure that the costs remain within an agreed budget.

What can the client expect to pay?

Tremark offer a variety of people tracing services to meet all budgets. Prices start at around £65.00 plus VAT. For further information please email a brief outline of your requirements to info@tremark.co.uk . We are usually able to respond with 12 hours or feel free to call our tracing team on 0845 861 1853.