UK: Data Protection: Access Denied

Last Updated: 21 September 2005
Article by Daniel Wise

The Information Commissioner’s recent policy U-Turn provides a long awaited injection of logic into the area of Data Protection. For years employers have been held hostages to fortune by the much maligned Section 7 Request. By requiring disclosure of vast swathes of documents these requests have placed an enormous burden on employers who sought to comply. However, employers may now breathe a huge sigh of relief following the implementation of the Commissioner’s new guidelines. These guidelines expand upon the approach taken by the Court of Appeal in the Durant case, allowing employers to deny access in the majority of cases.

The Importance of Mr Durant

The decision in Mr Durant’s case prompted the Commissioner to re-think its policy guidelines to employers in dealing with the Subject Access Request under section 7 of the Data Protection Act (‘DPA’). The facts of the case are relatively straightforward: the consequences significant and wide ranging.

Following a failed employment claim against Barclays Bank, Mr Durant made a Subject Access Request to Barclays Bank and the Financial Services Authority. His request was, among other things, for all documents relating to his unsuccessful litigation. This request was clearly an attempt to re-open the failed case. The FSA complied with the request in part, but refused to disclose certain documents contained in manual files, including a file relating specifically to Mr Durant’s complaints against Barclays Bank. The Court of Appeal found against Mr Durant and made it clear that disproportionate requests of this type would no longer be tolerated.

In making this wide ranging Section 7 Request in the hope of re-igniting his failed claim the Court of Appeal saw Mr Durant’s behaviour as,

"a misguided attempt to use the machinery of the DPA…"

The Court’s scathing criticisms of Mr Durant’s behaviour marked a change in how the Section 7 Request could be used. This prompted the Commissioner to review its policy guidelines to employers in this area. Both the Durant case and the new Guidelines will now give employer’s ample scope to deny access for the majority of Subject Access Requests. Let’s have a look at how they do this.

Hurdle 1: "Personal Data"

Two hurdles have now been put in place, significantly restricting the scope of the Section 7 Request. If the applicant does not pass either hurdle the request can be denied. The first hurdle for an applicant is that the request must be for "Personal Data." So what can be described as "Personal Data?"

The real thrust of these requests must now be a desire to access data in order to ensure that one’s right to privacy is not being infringed. With this as the cardinal principle Personal Data is now seen as information, "that affects the [individual’s] privacy…" The information must therefore be, "biographical in a significant sense…" and have the applicant as its subject. So what does this mean in practice?

The Information Commissioner therefore offers some useful examples of what is and is not "Personal Data." If the Subject Access Request does not relate to such "Personal Data" the employer can refuse the request.

The following is a non exhaustive list of examples of "Personal Data:"

  • information about the medical history of an individual
  • an individual’s salary
  • information concerning an individual’s tax liabilities
  • information comprising individual’s bank statements
  • information about individual’s spending preferences

The following examples come outside the definition of "Personal Data:"

  • reference to a person’s name where the name is not associated with any other personal information
  • incidental mention in the minutes of a business meeting of an individual’s attendance at that meeting in an official capacity; or
  • where an individual’s name appears on a document or email indicating only that it has been sent or copied to the particular individual and no other information about the individual is contained within the document.

This is a much more restrictive approach to what can and can’t be reasonably requested as part of a Subject Access Request. Gone are the days when a blanket request for all information relating to the applicant must be complied with, no matter the relevance. It will now be much easier for an employer to refuse aspects of the Section 7 Requests on these grounds.

Hurdle 2: Filing systems

This second hurdle, contained within the Durant decision and more recently the Commissioner’s Guidelines, is a very useful tool allowing employers to refuse the Subject Access Request in many circumstances.

It is commonly accepted that these requests can relate not only to computer files but also to manual files. Often the real burden for employers in complying with these requests is in trawling through manual files for documents. This will no longer be necessary. The request for documents in manual files only need be granted in the narrowest of circumstances.

The Subject Access Request can only now require that manual files be disclosed if such files are "of sufficient sophistication to provide the same or similar ready accessibility as a computerised filing system." To explain this, the Durant case sets out a two tier test. If the applicant does not pass the test the employer can refuse the request. The test is as follows:

  • "It must be possible to identify at the outset of a search with reasonable certainty and speed the file or files in which relevant personal information is held; and
  • it must be possible to locate that information within the file or files, without having to leaf through them."

Let’s just remind ourselves of what "personal" information means. This is information which relates in a biographical sense to the applicant and has him or her as its focus. So going back to the test, unless this kind of information can be easily and quickly identified at the outset of the search of the manual files, without having to leaf through these files, the request can be denied. This seems easy to apply in theory, but what about in practice?

The Information Commissioner offers some useful guidance in this area to allow employers to apply the test with greater certainty in practice. The Commissioner’s "Temp Test" therefore provides a useful rule of thumb:

"If you employed a temporary administrative assistant, would they be able to extract specific information about an individual without any particular knowledge of your type of work or the documents you hold?"

The Commissioner also provides some useful examples of applying the Temp Test to the originally named imaginary applicant, John Smith. These include the following:

  • If John Smith makes a Subject Access Request for details of the leave he has taken in the last six months and you hold a file entitled "John Smith" and it is sub-divided into categories such as "sickness" and "leave," the test is passed and the relevant personal documents in this filing system must be disclosed;
  • However, should John make the same request and your filing system includes only a file entitled "John Smith" but no sub-division of its contents and the documents in the file are randomly dropped in requiring the temp to leaf through the file contents the test is not passed and similar personal documents need not be disclosed.

Whilst many of us would aim to have such a well organised personnel filing system, this will not be so for the vast majority. Many of these requests can therefore be refused where they pertain to manual files because the filing system does not pass the Temp Test.

The Future of the Section 7 Request

Some might say that the pendulum has swung too far the other way. Certainly the cynics among us would point out that there is something to be said for a disorganised manual filing system. But what is clear is that following Durant and the very useful guidance from the Information Commissioner, employers can afford to be a lot more relaxed when receiving the Section 7 Request. Now is not the time to dismiss all such requests out of hand. It would be a good idea to seek advice on receipt of these requests in order to be clear of the position. However employers should be aware that they can be a lot more restrictive in what is provided in response to these requests, particularly where the request relates to manual files.

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 Mondaq.com.

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

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.