A data subject (defined in the GDPR as an identified or identifiable natural person) has a right under the General Data Protection Regulation (GDPR) to make a data subject access request (DSAR) to find out what personal data a data controller holds about him or her. A data controller is defined in the GDPR as the body which alone or jointly determines the purposes and means of the processing of personal data.
DSARs are often used by individuals as a means of in effect obtaining pre-action disclosure of documentation and other material potentially relevant to litigation which they are contemplating bringing and/or as a means of applying pressure on the data controller during negotiations to settle an actual or potential claim. It is clear from the established case law that DSARs are “purpose blind” and therefore the reason for which a DSAR is being made is not a valid basis upon which to resist the request as a matter of principle.
Dealing with a DSAR can be arduous, time-consuming and costly. Failure to comply properly with a DSAR can lead to complaints to the Information Commissioner’s Office (ICO), with potentially serious financial, regulatory and reputational consequences. As has been widely publicised, fines for failure to comply with the GDPR are significant – up to 20 million euros or 4% of global turnover, whichever is the higher. There has been a marked increase in the number of subject access requests being made since the GDPR came into force on 25 May 2018. This could be because of the media interest in this new legislation and/or because data controllers are now required to advise data subjects of their rights, including the right to access their data.
Not only do data controllers need to consider the GDPR when complying with a DSAR but also our domestic legislation, the Data Protection Act 2018, together with any guidance produced by the ICO. The ICO has published a Code of Practice on Subject Access, although it has not yet been updated to take into account the GDPR.
By following the steps set out below, data controllers can seek to proactively manage the process and should be well placed to resist any complaint made to the ICO by the data subject.
- Check the validity of the request: A DSAR can be made verbally or in writing and need not be addressed to any particular person or indeed identified explicitly as a DSAR. If it is unclear whether a DSAR has been made, the matter should be referred to the data controller’s Data Protection Officer (DPO), or to the appropriate person within the business if there is no DPO. The data controller must be satisfied that the request comes from the data subject purporting to make it. This may be obvious but, if there is any doubt as to the identity of the data subject, the GDPR sets out a procedure for checking identity. One other point to note is that DSARs should be addressed to a data controller. So if an organisation considers itself to be a processor (i.e. a body which processes data on behalf of a data controller) in respect of the personal data in question, it should direct the data subject to the correct data controller.
- Consider if charging a fee is appropriate: Although generally the data controller is unable to charge a fee for a DSAR, if a request is manifestly unfounded or excessive, the data controller may charge a reasonable fee or even refuse to act on the request. If it decides not to act on the request, the data controller must give reasons and inform the data subject that they may complain to the ICO or apply to the court. It is unclear how the concept of a DSAR being "manifestly unfounded or excessive" should be interpreted; guidance is likely to be issued by the ICO in due course. However, the GDPR indicates that repetitive requests may be excessive. Except in obvious cases, data controllers should be cautious about asserting that requests are unfounded or excessive. It may be a better approach to act on the request to the extent that the data controller believes it is reasonable and proportionate, reserving assertions that the request is excessive or unfounded for use if that approach is challenged by the data subject, and seeking to narrow/clarify the request at an early stage. If a fee is proposed this should be raised with the data subject at an early stage.
- Identify the deadline for compliance: There is a one month time limit to respond to a DSAR which can be extended by a further two months but only where the request is complex or the data controller has received a number of requests. The data controller must notify the data subject of any such extension and the reason for the delay within the first month of receiving the DSAR. It is therefore important that the data controller has a cogent explanation for requiring an extension. Careful project management will be crucial to ensure compliance with this deadline.
- Clarify and/or narrow the scope of the request: if the DSAR is unclear in its scope, before beginning a search, the data controller should ask the data subject to give more detail about the information they are seeking and where it is likely to be located. While a data controller is required by the GDPR to make extensive efforts to find and retrieve the information requested, it is not required to do things that would be unreasonable or disproportionate to the importance of providing subject access. Consequently, if the scope of the request is very wide – such as “please give me all my personal data” – it may be appropriate to seek to engage with the person making the request in order to narrow the scope of the request and/or make it more focused, for example, to limit the request to a particular timeframe or identified custodians of potential personal data. In its Subject Access Code of Practice the ICO encourages parties to have an open conversation about the information which the data subject requires in order to reduce the time and effort the data controller might otherwise incur in searching for the information. If the ICO receives a complaint about the handling of the DSAR, it will take into account the data controller’s readiness to engage with the data subject as well as the data subject’s level of co-operation. It may also be possible, with the agreement of the data subject, to use search terms to find emails or documents that contain the data subject’s personal data, e.g. the individual’s name and other identifiers commonly used, such as nicknames and initials and relevant key words.
- Conduct a full and proper search: It is important to establish at the outset where the data sought by the data subject is likely to be held to ensure that, subject to limiting the scope of the search as outlined above, the search captures it all. For electronically held data, email accounts, hard drives, network drives and backed up data should all be searched. CCTV records, telephone records and records of automated door entry systems also potentially contain personal data. Paper filing systems also need to be searched.
- Consider using an e-discovery software tool for the review: Although the review may be carried out with standard search tools, if there is likely to be a large volume of documents, it may be beneficial to use a platform onto which the products of the search can be uploaded. This will enable multiple people to review the documents simultaneously and can be used to batch and categorise documents, remove duplicates and to redact data which should not be disclosed.
- Understand the concept of personal data: Only “personal data” needs to be disclosed. The GDPR defines this as any information relating to a data subject i.e. one who can be identified, directly or indirectly, in particular by reference to identifiers such as a name, an identification number, location data, an online identifier or to one or more factors specific to the characteristics of that person (for example physical, mental, economic or social characteristics). The ICO has produced a quick reference guide on the meaning of personal data. There will be circumstances where it is unclear whether particular data is personal data. If this is the case it is the ICO’s position that, as a matter of good practice, the information should be treated as personal data.
- Consider if an exemption applies: Certain categories of information need not be disclosed in response to a DSAR, including the following:
- personal data which consists of information for which legal professional privilege could be claimed in legal proceedings;
- a confidential reference given for employment, training or educational purposes (but the exemption does not apply to a reference received by a data controller);
- personal data processed for the purposes of management forecasting or management planning in relation to a business or other activity if complying with the DSAR would prejudice the conduct of the business or activity (e.g. information on a staff redundancy programme yet to be announced to the rest of the workforce); and
- personal data consisting of records of intentions in relation to negotiations between the data controller and data subject, if it would prejudice the negotiations.
- Consider redacting third party data: To the extent that a document contains data about third parties, as opposed to the person making the DSAR, it will generally not constitute personal data relating to that individual as a “data subject.” That material can therefore legitimately not be disclosed or redacted from the materials that are provided to the person making the DSAR in order to protect the third parties in question. Although it will often be easiest to produce a copy document with redactions, the personal data could be extracted and copied to a different document. The third party data may not, however, be capable of being separated from the personal data of the data subject – an example would be an email from an employee’s line manager complaining about the employee’s performance. In that situation, the data controller is not required to disclose the information in question to the data subject unless the third party has consented to its disclosure or it is reasonable to disclose the information without the consent of the third party. Whether it is reasonable to do so is to be determined having regard to all relevant circumstances, including:
- the type of information;
- any duty of confidentiality owed to the third party;
- any steps taken to seek consent;
- whether the third party is capable of giving consent; and
- any express refusal of consent by the third party.
This decision will involve balancing the data subject’s right of access against the third party’s rights. The data controller should be careful that when providing copies, there is no inadvertent disclosure of third party personal data about others, for example the data controller should make sure that spreadsheets do not contain hidden rows or additional pages. The ICO has produced some useful guidance on these issues (ICO: How to disclose information safely: removing personal data from information requests and datasets).
- Provide all requisite information: As well as providing the data subject with their personal data, the data controller is also required by the GDPR to provide the individual with additional prescribed information:
- the purposes of the processing;
- the categories of personal data concerned;
- the recipients of the personal data;
- the retention period;
- the existence of certain specific rights conferred by the GDPR: the rights of rectification, restriction, erasure and to complain to the ICO;
- the source of the personal data;
- the existence of automated decision-making if applicable; and
- where personal data are transferred outside the EU, details of the appropriate safeguards.
Much of this information should be contained in any event in the data controller’s Privacy Notice (which data controllers are required to provide to all data subjects at the point of collecting their personal data and which must contain certain information set out in Article 13 GDPR).
- Provide the personal data in a commonly used electronic form: The materials to be disclosed should be provided electronically rather than in hard copy form unless the data subject either did not make the request by electronic means or has specifically requested not to be provided with the copy in electronic form.