In August, the High Court, in Dawson-Damer & Ors v Taylor Wessing  EWHC 2366 (Ch), refused an application to compel a UK law firm (“TW”) to comply with a data subject access request (“DSAR”) under the Data Protection Act 1998 (“DPA”). Applying his findings from an earlier judgment (Elliott v Lloyds TSB (2012)), His Honour Judge Behrens (i) took account of the motive behind the DSAR and (ii) held that any search responsive to a DSAR did not have to go beyond what was reasonable and proportionate.
The court application and the original DSAR were made by Mrs Dawson-Damer (“DD”), the beneficiary of a Bahamian trust who is suing the trustee, the Grampian Trust Company, in the Bahamas in its refusal to make distributions for the benefit of her adopted children (among other things). TW have been Grampian’s English solicitors for 30 years, holding more than 50 historical paper files, as well as more recent computerised ones. A DSAR was made to TW requesting a copy of all personal data held about DD (DSARs were also made for DD’s children). The firm refused, claiming the exemption for legal professional privilege would apply to the majority of documents held, and that it would be disproportionate and unreasonable to expect TW to search through in order to determine what – of 30 years’ of accumulated material – was privileged or not. TW also said that the extent of any legal privilege was a matter of Bahamian law, not English, and that this could only be established in the proceedings brought by DD in the Bahamas.
DD argued that the special relationship between a trustee and a beneficiary meant any legal privilege would be “joint” and could not be asserted against DD; DD argued also that TW had made no effort to try to identify information it held which was not exempt, and was therefore obliged to search its documents and provide any non-privileged information that was responsive to the DSARs.
The court had to determine whether or not it should exercise its discretion under s.7(9) DPA to compel TW to comply with the DSARs. It decided not to do so. The main points cited were:
- The real purpose of the DSAR was to obtain information to be used in the Bahamian proceedings; not, say, to check the accuracy of the information held by TW or have it corrected if inaccurate. This is not a proper purpose under the DPA.
- It was not reasonable or proportionate for TW to carry out lengthy and costly searches of files dating back at least 30 years to check if any information was not covered by legal professional privilege; that was something which had to be determined under Bahamian law and could only be done once DD had submitted pleadings in those proceedings.
This is not really a decision about the legal professional privilege exemption for DSARs, but more about motivation and proportionality. It appears to narrow the scope of situations where a court will exercise its discretion to order compliance with a DSAR. However, most DSARs never come before a court and the ICO (the regulator responsible for enforcing the DPA) has been staunchly “motive-blind” when it comes to enforcing DSARs. The judge has granted provisional permission to appeal and so may be expecting a challenge.