Subject access requests are quick and easy for an individual to make. But for any organisation receiving an SAR, many long hours and significant resources will be needed in order to properly respond. As with any difficult task, procrastination does not make responding any easier. Any individual dissatisfied with the speed or content of an organisation’s response will also find it quick and easy to complain to your organisation or the ICO. This SAR guide is intended to make responding to SARs as straightforward as possible.
1. RECOGNISE THE SUBJECT ACCESS REQUEST
A SAR is any request by an individual for their own personal data. Although it must be in writing, it can be sent to anyone in your organisation, by any means and in any form. It does not need to mention the GDPR or Data Protection Act 2018. It does not matter that the request incorrectly refers to the Freedom of Information Act 2000.
A SAR does not simply entitle an individual to a copy of their own personal data. They are also entitled to receive a number of other pieces of information about how their personal data is being processed (Article 15 GDPR) including the purpose of processing the data, the source of the data and who the data has or will be shared with.
As soon as a request is identified, ensure that any routine data deletion or destruction processes are suspended with respect to the personal data of that individual. In addition, it is now a criminal offence to delete, destroy, alter or conceal personal data to frustrate a SAR (Section 173 DPA 2018).
2. IDENTIFY THE INDIVIDUAL MAKING THE SUBJECT ACCESS REQUEST
Before communicating with the individual, satisfy yourself with respect to their identity. The measures you take depend on what is reasonable in the circumstances. It may be reasonable to seek proof of identity (usually recent photographic ID and utility bill) from an unknown client but not an employee with who you are in day to day contact.
A request may be made on behalf of an individual by a representative, for example, a solicitor. Seek reassurance that the individual has authorised the representative to make the request, correspond with you and receive the response on their behalf. Requests made on behalf of children need to be carefully considered with reference to the ICO’s guidance.
3. ACT SWIFTLY AND CLARIFY THE SUBJECT ACCESS REQUEST
You have one month to respond from the receipt of the SAR. It is possible to extend this period by a further two months in complex cases, although the individual should be informed as soon as this becomes apparent.
Where the SAR is broad or unclear, the ICO strongly encourages organisations to contact the individual to clarify the personal data which they wish to receive. Although the individual is under no obligation to explain why they want the personal data or what they intend to do with it, they may be able to narrow the parameters of their request. This could include refining the data range or categories of information sought. It is useful to confirm at this stage whether the individual wants their own communications to / from the organisation to be disclosed.
Opening up a line of communication with the individual provides immediate reassurance that an organisation is taking its responsibilities seriously.
4. IDENTIFY PERSONAL DATA TO BE DISCLOSED
Organisations are expected to be able to conduct reasonable and proportionate searches of its hard copy or electronic filing systems in order to identify the personal data belonging to the individual. This may include client / employee files, Outlook accounts and data held by data processors. All forms of information may fall to be disclosed, including audio recordings or CCTV footage. Data which has effectively been put beyond use may be excluded.
What is personal data?
Personal data is broadly defined as any information relating to an individual who can be identified from that information (or in combination with other information in an organisation's possession). It does not matter that information does not refer to an individual by name, so long as they can be identified by other means, for example, their initials or ID number. Personal data may be known to the individual or within the public domain. Importantly, personal data includes any recorded opinion of that individual.
The obligation upon the organisation is to disclose the information from the original document or record, but not necessarily the document or record itself. In many cases, providing the original document or record may be appropriate. In other cases, especially where there is a significant amount of mixed data (see below), it may be more appropriate to provide extracts of the personal data, so long as it is in an intelligible form.
5. IDENTIFY PERSONAL DATA EXEMPTIONS
There are a series of good reasons why personal data should not be disclosed, reflected within the range of exemptions to disclosure within Article 15 GDPR and schedules 2 – 4 of the Data Protection Act 2018, for example, where disclosure would prejudice defined public functions or communications are subject legal professional privilege.
You are not required, and should not, disclose an individual’s personal data if this would adversely affect the rights of other individuals. This issue frequently arises with respect to mixed data such as email communications and meeting notes which are the personal data of the individual, as well as the others in the email chain or at the meeting. In determining whether to disclose this mixed data, consideration must be given to whether the third parties have consented to its disclosure or whether it is otherwise reasonable to disclose it. There are no easy rules of thumb to follow. Rather, careful consideration needs to be given to the specific content and context of this material.
6. SECURELY DISCLOSE THE PERSONAL DATA
If a subject access request has been made electronically, the default expectation is that an organisation will provide the response electronically. However, it is good practice to check with the individual first. Especially where sensitive or special category data is being disclosed, ensure that this is disclosed in the most secure means possible.
7. KEEP A RECORD OF REVIEW AND DECISIONS MADE
You should keep an audit trail of the request, including the sources of information which was collated, the review undertaken, key decisions made concerning whether information amounted to personal data and whether exemptions applied, the response provided and disclosure made, as well as all communications with the individual and other third parties. This will be essential if the individual seeks an internal review of the response or complains to the ICO.