Jersey: New Guidance Issued In The UK Regarding Subject Access Requests

Last Updated: 9 September 2013
Article by Colette Hunt

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.

Electronic data

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.

Non-electronic data

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.

Excluded data

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions