The High Court has rejected a request to make a subject access compliance order under the Data Protection Act 1998 in Dawson-Damer and others v Taylor Wessing LLP and others [2015] EWHC 2366. It relied on the “disproportionate effort” exemption, which permits data controllers to avoid carrying out a search where it is not reasonable or proportionate for them to do so. The purpose of the access request was also relevant since the Court was of the view that the claimants’ purpose was to obtain documents for litigation and this was not a proper purpose under the Data Protection Act.

Facts

The claimants are three members of the Dawson-Damer family, one of whom, Mrs Dawson-Damer (DD) is a beneficiary of the Glenfinnan Settlement (the Settlement), a trust fund that is managed by a sole trustee, Grampian, in the Bahamas. Taylor Wessing LLP (TW), the respondent, is a firm of solicitors that acts for Grampian. The background to this case involves litigation in the Bahamas between DD and Grampian regarding the redistribution of funds in the Settlement and the trustee’s refusal to make distributions to DD’s adopted children. 

TW received subject access requests (SARs) under the Data Protection Act 1998 (DPA) from the claimants for all the data of which the claimants were the data subject (either directly or by inference). TW did not comply with the subject access requests, claiming that legal professional privilege applied to the majority of documents and that it would be disproportionate for them to search all their records, which amounted to over 30 years of electronic and paper documents, to check which were covered by legal professional privilege. They also argued that, even if they would be required to disclose such data, their filing system was not a ‘relevant filing system’ for the purposes of the DPA because many of their records were not computerised. The claimants sought an order for compliance from the High Court.

High Court decision

The High Court refused to order compliance, as it would be disproportionate for TW to conduct the search to determine whether or not legal professional privilege attached to the requested information due to the time and cost that such a search would involve. It was suggested that had TW provided more evidence of their filing system, the Court would have taken the view that it was indeed not a ‘relevant filing system’ as it was for the most part an unstructured manual system. 

Given the background to the case, the claimants’ motive for accessing the information was questioned and it was inferred that the request was to obtain documents to assist them in litigation. The Court addressed the purpose of SARs under the DPA. The Court stated that the intention of the legislation was for an individual to have access to data held about him in order to check its accuracy and to correct it if necessary. The purpose of SARs was not to aid a data subject in obtaining documents that he could then use in litigation. 

The claimants were given permission to appeal.  We understand that an appeal has been lodged and is due to be heard by the Court of Appeal by the end of October next year.

Comment 

This decision is not binding but provides useful clarification of the extent to which data controllers must comply with the provisions in the DPA relating to SARs and the scope of the “disproportionate effort” exemption. While employees are only required to pay a £10 fee when they lodge a SAR, employers are obliged by the DPA to supply the data information requested where appropriate and often this can be a burdensome task involving substantial time, effort and expense.  If an employer fails to comply, it risks being in breach of the DPA.  Following this decision, there is now greater clarity about when the exemption applies and the circumstances in which compliance would be considered disproportionate and/or unreasonable.

The question of motive in relation to SARs is also an interesting aspect of this decision. Since the Court confirmed that obtaining documents for litigation is not a proper purpose of a SAR, this could deter claimants from making a request and could assist employers faced with such requests. 

The High Court commented that the Court of Appeal might take a different view on the points of law in this case.