When an employee, or former employee, submits a subject access request ("SAR"), do you know how to respond?
Seemingly, there is much variation in the way such is handled.
A new Code of Practice ("the Code") has just been produced and published by the Information Commissioner's Office which provides the controllers and processors of personal data ("data") with a useful point of reference. It is a comprehensive guide which covers many common scenarios and includes examples in each of its sections.
As well as explaining the rights that employees have in relating to accessing their own data, the Code clarifies what a data controller must do in order to comply with their duties.
Uncertainties are to be clarified
One of the points which the Code emphasises is that a controller should be fully satisfied of the identity of the requester before any data is disclosed. Where several employees (or former employees) are employed with the same surname, or if there is more than one with the same names in your organisation, you should ask for some additional information such as date of birth or a copy of their passport or a utility bill to ensure that the correct data is provided.
If it is uncertain about what is being requested, then clarification should be sought from the requester prior to responding. However, you cannot require the requester to narrow the scope of their request.
If a written request asks for "all information you hold" about an employee, whilst they are entitled to everything about them, you can nonetheless reasonably ask them to provide information about the context in which the information may have been processed, or the likely dates created, so as to assist you when searching. Thus, if in response to an SAR, an employee has been provided with a copy of the information held in their personnel files and any files held by their line manager but complains that he has still not been provided with all information about him, you could ask the employee to say approximately when emails were sent and who sent them.
If the request relates to information in electronic form, then you can reasonably ask the requester for confirmation of the type of data being sought, for example, whether an application form, letter, email and when it was likely to have been created. Doing so may assist you in determining if the material has been deleted or archived (either printed off and held in a manual archive or removed from your live electronic data systems and held in an electronic archive).
The contents of an email should not be regarded as deleted merely because it has been moved to a user's "Deleted items" folder.
Whether disclosure of data contained in paper files or on microfiche records is required will depend on whether the nonelectronic records are held in a "relevant filing system" and whether enough context has been provided to be able to locate this. A relevant filing system will exist where information about individuals is held in a sufficiently systematic, structured way which allows ready access to specific information about them.
There is no legitimate basis for information to be excluded from a response to a SAR merely because it will be difficult to access the data or because it will be time consuming or costly to locate. Whilst there are no express limits placed on your duty to search for and retrieve the information sought, the Code does include advice on the situation where a disproportionate amount of effort would be required to obtain certain information. In the main, it states that this should only be relied on in exceptional circumstances.
Certain information may be exempt from a SAR because of its nature or because of the effect its disclosure is likely to have. Examples of exemptions include a confidential reference that you provide about an employee, information that is processed for certain purposes (for example, the prevention or detection of crime, the capture or prosecution of offenders and the assessment or collection of tax or duty), negotiations with the requester, data to which legal professional privilege applies, and data relating to management forecasting or planning (to the extent that complying with a SAR may prejudice the business or other activity of the organisation).
Thus, if the senior management of a company are planning a re-organisation which may involve making certain employees redundant, but before the plans are revealed to the staff, an employee submits a SAR. The response to the SAR does not need to include the management plan if this included making that particular employee redundant because doing so might prejudice the business, perhaps by causing unrest in advance of the announcement of the management plans. However, if the SAR was not submitted until after the plan had been revealed to staff or after the redundancies took effect, then the exemption would no longer be applicable.
If you intend to rely on an exemption, careful consideration should be given as the decision may need to be defended subsequently. The Code therefore suggests that it is good practice to ensure that such a decision is taken at a suitably senior level and also that the reason(s) for applying it are recorded.
There are also some restrictions on what should be disclosed in response to a SAR, for example, where this would involve disclosure of information about a third party.
A fairly common occurrence involves the contents of a human resources file of an employee including information which identifies managers and colleagues who have contributed to the file. To be able to deal with a SAR covering this, you will need to reconcile the right of access of the requester with the need to preserve the confidentiality of the third parties.
Confidentiality is a factor which must be taken into account when deciding to disclose information about a third party without their consent. There may also be occasions where you decide that it is reasonable in all the circumstances to disclose it without seeking their specific consent, such as where the information is already known to the requester. In other instances, it may be not be practicable to obtain the consent of a third party, for example, if they cannot be located. Special rules apply to certain material, such as the disclosure of health, educational and social-work records.
What form should disclosure take?
The Code also addresses the form in which the data is supplied. Providing it in a permanent form usually involves the requester being given a photocopy or printout of their data but the Code states that there is no obligation to provide copies of original documents.
Information can also be provided in the form of a transcript of relevant documents, or of sections of documents, containing the data. The Code also points out that a SAR also entitles the requester to be told whether any of their data is being processed and if so, to be given a description of the data, the reasons it is being processed, whether it will be given to other organisations or people (in general terms), and the source of the data (if known).
If a file or document contains a mixture of information - some data about the requester, and of third parties and some material that is not data at all, you will need to consider each document, or part thereof, to assess the matter. In practice, it is often easier and least time consuming to simply provide the requester with all of the file or document. This can be appropriate where none of the information is particularly sensitive or contentious or does not refer to any third parties.
Automated decisions and other key Points
Another point to be borne in mind is that the requester is entitled to ask for an explanation of the reasoning behind any automated decision taken about him or her, and cites an example of this as an assessment of their performance at work (as long as this could not be considered to be a trade secret). If a requester submits a SAR on more than one occasion, then you must consider if there is any new data in existence since the previous response was provided. If there is no new data, then the requester should be informed that their records have not changed since the previous response was provided to them.
There are many other useful points made within the Code, so as and when you next have a query on a data protection issue, it is worth looking at this, as well as possibly contacting your island's office of the Data Commissioner, and/or asking a member of our employment team in either island.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.