Ireland: Expert Comment, Rob Corbet – Data Protection Ireland, Volume 10, Issue 4

Last Updated: 25 August 2017
Article by Rob Corbet

The countdown to commencement of the GDPR is on. While guidance will continue to emerge on many of the newer topics addressed in the GDPR, there is already a wealth of caselaw and guidance on the topic of data subject access rights ('DSARs'). So, what are the rules and how are they changing?

Background

Article 12 of Directive 95/46/EC (the 'Directive') requires Member States to ensure that data subjects have a legal right of access to their personal data. The principle behind this right is to allow a data subject to review their personal data kept by a data controller to ensure its compliance with the Directive, thereby encouraging controllers to adopt good data protection practices. In Ireland, a controller currently has 40 days to respond to a DSAR, which need not be in any particular form other than 'in writing'. A modest fee (€6.35) can be applied.

Over time, the DSAR has become a very popular means of seeking access to a range of data for all manner of purposes, many of which have nothing to do with privacy or data protection. This has led the courts to look closely at the parameters governing DSARs. Much of this caselaw is likely to stay relevant when the GDPR comes into effect, given that the principles in Article 12 of the Directive remain largely intact in Article 15 of the GDPR.

Durant v Financial Services Authority

One of the first landmark cases on DSARs was the 2003 English Court of Appeal decision of Durant v FSA. The Court noted that the purpose of the right of access was to enable the data subject to check whether a data controller's processing of his or her personal data unlawfully infringed upon their privacy and, if so, to allow them to take steps to protect it.

The Court ruled that there were two relevant tests: first, the information had to go beyond recording the data subject's involvement in a matter or event and second it had to be 'biographical in a significant sense'. Alternatively, the information should be focused on the data subject, rather than on some other person with whom they may have been involved or transaction in which he had an interest.

While this case provided some useful guidance for controllers struggling with large volumes of DSARs, the decision was heavily criticised and was distinguished in some of the subsequent cases.

Dublin Bus CCTV case

The nature of a data subject's right of access was considered by the Irish High Court in 2012 in the decision of Bus Átha Cliath/Dublin Bus v Data Protection Commissioner (the 'DPC'). The plaintiff was seeking to refuse a DSAR on the grounds that its sole purpose was to conduct a fishing expedition in aid of another suit. The High Court ruled that the existence of an ulterior motive could not limit a data subject's right of access to their personal data, and thus, could not justify a data controller's refusal of a DSAR. It stated that any such limitation would have to be expressly provided for by the legislature.

CJEU decisions

In the 2014 decision of YS, M, and S v Minister for Immigratie, Integratie en Asiel, the Court of Justice of the EU determined that legal analysis contained in an internal document as part of an internal process was not personal data. The case also confirmed that the right of access extends to personal data and not to documents per se. Accordingly, controllers could provide a full summary of personal data in an intelligible form, provided the summary was sufficient to allow the data subject to check that the data are accurate and processed in compliance with the Directive.

Further developments can be expected in the near term in light of the Advocate General decision in Nowak v DPC (see the news item on page 18).

New DPC guidance

The DPC issued guidance on DSARs on 7th April 2017. The guidance recognised that disproportionate effect and legal professional privilege remained valid exemptions to SARs. However, it did not address any of the more nuanced points.

Effect of the GDPR on DSARs

Article 15 of the GDPR will introduce a number of changes to the DSAR system with effect from 25th May 2018.

The time limit for a response under the GDPR will now be 'without undue delay and at the latest within 1 month'. This timeframe may be extended by a further 2 months where necessary so long as the data subject has been informed within that first month.

When providing copies of personal data, controllers must also provide details of the retention periods.

Further information is also required to explain the data subject's rights to request the rectification or erasure of their data, to object to processing activities and the right to make a complaint to the relevant Data Protection Supervisory Authority.

The information must be provided free of charge unless the DSAR is manifestly unfounded or excessive, in particular, if it is repetitive. In such cases the controller may charge a 'reasonable fee'. Further, it must be possible to submit a DSAR electronically. Where the DSAR is submitted by such means, the information should be provided in a commonlyused electronic form, unless otherwise requested by the individual. Controllers must identify where they have sourced data subjects' personal data from in instances where data have not been collected directly from the individual.

Data subjects will also have a right to be provided with details of the safeguards applied where their data are transferred outside of the European Economic Area.

Member State derogations

While the GDPR is intended to constitute a single text with direct effect across the EU, Member States are permitted to restrict the right of access by virtue of Article 23 of the GDPR where such restriction is proportionate, and there are sufficient safeguards in place to protect the rights of the data subject. The GDPR does not clarify what is deemed proportionate, and it will be interesting to see if and how Member States legislate for it. Of particular interest will be whether, and to what extent, Member States may seek to address the issues of proportionality, motive and privilege which were the subject of the cases referred to above.

In Ireland's case, the General Scheme of the Data Protection Bill suggests that the existing definition of legal privilege in the Irish Data Protection Acts will be extended, but there is no sign of any 'disproportionate effort' exemption or exemptions relating to the motive of the data subject. It may well be argued that the GDPR ties the hands of Member States in relation to those issues, so it will continue to fall to the courts (and the European Data Protection Board in due course) to provide further clarity.

I would like to thank John McCallion for his valued assistance in relation to this comment.

This article contains a general summary of developments and is not a complete or definitive statement of the law. Specific legal advice should be obtained where appropriate.

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