Are Data Subject Access Requests driving you crazy?
Complicated. Costly. Time-consuming...
… And driving me crazy. We’ve all heard the dreaded words, right? I’d like a copy of my personal data.
Which led me to think; is the fundamental privacy right of accessing our personal data becoming part of our increasingly litigious culture? The DSAR is now a staple opening shot for law firms handling grievance claims or employment tribunals, looking for potentially incriminating morsels of information.
Of course, this right must be upheld, but is the process fit for purpose? Employee-related requests, in particular, can entail a massive amount of work and the potential for litigation makes them a risky and complex area.
For some organisations, this is water off a duck’s back; they’ve always had access requests, anticipated volume would increase after GDPR, have teams to handle them, invested in tech solutions, have access to lawyers and so on.
Great stuff, but please spare a thought for others.
Plenty of businesses have lower volumes of DSARs. They’re unable to justify, or afford, extra resources. These guys are struggling under a system that assumes one size fits all.
Then there are businesses who’ve never even had a DSAR. For them, just one request can be an administrative hand grenade.
Of course some businesses are guilty of treating employees badly, but I wish things could be different. It’s about getting the balance right, that most elusive of things when creating regulatory regimes. Are the principles behind the DSAR important? Of course. Can the processes be improved? Definitely!
So be warned – here begins a micro-rant on behalf of the smaller guys. I’m feeling their pain.
What’s that sound? It’s wailing and the gnashing of teeth
It’s clear in our Privacy Pulse Report DSARs are a significant challenge facing data protection professionals. One DPO told us;
“Vexatious requests can be very onerous. Controllers need broader scope for rejection and to refine down the scope, plus criteria for when they can charge… In my view, the ICO should focus on helping controllers to manage complex and vexatious DSARs.”
Some access requests are straightforward, especially routine requests where ‘normal’ procedures apply. However, some requests are made by angry customers or disgruntled ex-employees on a mission… and there’s no pleasing them. A troublesome minority appear to be submitting DSARs because they want to cause inconvenience because they’re angry, but don’t go so far as to fall under the ‘manifestly unfounded’ exemption.
Anyhow, for all those of you out there dealing with this stuff, know that I feel your pain. Without any further ado…
My THREE biggest DSAR bugbears (there are others)
We’re entitled to a copy of ALL our personal data (to be clear, this doesn’t mean we’re entitled to full documents just because our name happens to appear on them somewhere).
It’s true organisations are allowed to ask for clarification, and the ICO’s Right of Access Guidance, provides some pointers on how to go about this.
Yet that tiny glimmer of hope is soon dashed – we’re told we shouldn’t seek clarification on a blanket basis. We should only seek it if it’s genuinely required AND we process a large amount of information about the individual.
Furthermore; “you cannot force an individual to narrow the scope of their request, as they are still entitled to ask for ‘all the information you hold’ about them.”
Let’s take the hypothetical (but realistic) case of an ex-employee who believes they’ve been unfairly dismissed. They worked for the company for 10 years, they submit a DSAR but choose not to play along with clarifying their request. They want everything over a decade of employment.
Do they really need this information? Or are they refusing to clarify on purpose? Is this a fair, proportionate ‘discovery process’? As I’ve said before, large organisations may be better placed absorb this, it’s the not-so-big ones who can really feel the pain. And in my experience, much personal data retrieved after hours of painstaking work isn’t relevant or significant at all.
I get conflicted with the requirement to search for personal data within email communications and other messaging systems.
On the one hand we have the ICO’s guidance, which to summarise tells us:
- personal data contained within emails is in scope (albeit I believe GDPR has been interpreted differently by other countries on this point);
- you don’t have to provide every single email, just because someone’s name and email address appears on it;
- context is important and we need to provide emails where the content relates to the individual (redacted as necessary).
If you don’t have a handy tech solution, this means trying to develop reasonable processes for retrieving emails, then eliminating those which won’t (or are highly unlikely) to have personal data within the content. This takes a lot of time.
Why am I conflicted? In running a search of your email systems for a person’s name and email address, you’ll inevitably retrieve a lot of personal data relating to others.
They might have written emails about sensitive or confidential matters, now caught within the retrieval process. Such content may then be reviewed by the people tasked with handling the request.
I suspect this process can negatively impact on wider employee privacy. Yes, we’re able to redact third party details, but by searching the emails in the first place, we’re delving into swathes of lots of people’s personal data.
It seems everyone else’s right to privacy is thrown out in the interests of fulfilling one person’s DSAR.
It also makes me wonder; if I write a comment that might be considered disparaging about someone in an email, do I have any right to this remaining private between me and the person I sent it to? (Even if it wasn’t marked confidential or done via official procedure).
I know many DPOs warn their staff not to write anything down, as it could form part of a DSAR. I know others who believe they’re justified in not disclosing personal data about the requester, if found in other people’s communications. Which approach is right?
Who decided it was a good idea to say DSARs had to be fulfilled within ‘one calendar month’?
It wasn’t! This phrase led to the ICO having to offer this ‘clarification’;
You should calculate the time limit from the day you receive the request, fee or other requested information (whether it is a working day or not) until the corresponding calendar date in the next month.
If this is not possible because the following month is shorter (and there is no corresponding calendar date), the date for response is the last day of the following month.
If the corresponding date falls on a weekend or a public holiday, you have until the next working day to respond.
This means that the exact number of days you have to comply with a request varies, depending on the month in which an individual makes the request.
For practical purposes, if a consistent number of days is required (e.g. for operational or system purposes), it may be helpful to adopt a 28-day period to ensure compliance is always within a calendar month.
I hope you got that.
Wouldn’t it have been easier to have a set number of days? And perhaps more realistic timescale?
Let’s take the hypothetical (but realistic) case; you receive a DSAR on 2nd December. You can’t justify an extension as it isn’t unduly complex.
Yes, I know you’re with me; bank holidays and staff leave suddenly means the deadline is horribly tight.
I wish there was specific number of days to respond. I wish they excluded national bank holidays and I wish there was a reprieve for religious festivals. I know, I’m dreaming.
DSARs and UK data reform
Is the UK Government going to try and address the challenges in their proposal to reform UK data protection law?
The consultation paper makes the right noises about the burden DSARs place on organisations, especially smaller businesses.
Suggestions include introducing a fee regime, similar to that within the Freedom of Information Act. One idea is a cost ceiling, while the threshold for responding could be amended. None of this is without challenges. There’s also a proposal to re-introduce a nominal fee.
On the latter point, GDPR removed the ability to charge a fee. You may recall prior to 2018 organisations could charge individuals £10 for a copy of their personal data.
Many will disagree, but I think the nominal fee is reasonable. I realise it could be seen a barrier to people on lower incomes exercising a fundamental right. However, my thoughts are organisations wouldn’t be forced to charge. It would be their choice. They would also be able to use their discretion by waiving the fee in certain situations. It makes people stop and think; ‘do I really want this?’
Whatever transpires, I truly hope some practical changes can be made to support small and medium-sized businesses. Balancing those with individual rights isn’t easy, but that’s why our legislators are paid the big bucks.
And here, dear reader, endeth my rant!