UK: When Does A Private Investigator Need To Comply With A Subject Access Request?

Last Updated: 20 May 2016
Article by Adam Betts

The High Court case of Gurieva & Anor v Community Safety Development (UK) Ltd, heard by Mr Justice Warby, dealt with the obligations of the defendant private investigator (as data controller) to comply with a data subject access request made by a couple who were the focus of the defendant's investigations.

This dispute is part of a larger clash concerning a Russian company called OJSC PhosAgro (PhosAgro), a producer of fertilisers. Since 2011 PhosAgro has been listed on the London Stock Exchange.

The parties and the claim

The defendant, Community Safety Development (UK) Ltd (CSD) (a London-based company offering security and investigative services), was engaged by its client Mr Gorbachev (a former board member of PhosAgro) to make enquiries into criminal, regulatory and/or civil liability for alleged fraudulent statements or omissions made in the prospectus for the 2011 flotation of PhosAgro.

The first claimant, Mr Guriev, was the Deputy Chairman of PhosAgro, who brought this claim together with his wife, Mrs Gurieva. Both had beneficial interests in PhosAgro.

In looking into the claimants and their business affairs and interests, CSD contacted the couple and their solicitors on a number of occasions with questions for Mr Guriev. The claimants characterised at least one letter in particular as "threatening", although this was denied by the defendant. The court would later note that CSD's client (Mr Gorbachev) was engaged in an "aggressive and intimidating litigation PR strategy" which involved the issue of false information, including by way of a press release which suggested that Mr Guriev was subject to a criminal proceedings in Cyprus instigated by the Cyprus authorities - when in fact the proceedings were a private prosecution brought by Mr Gorbachev himself, alleging that he was defrauded of a stake in PhosAgro.

A data subject's rights

The right to subject access is created by section 7 of the Data Protection Act 1998 (DPA). The right is used by individuals who wish to see a copy of the information held about them. Upon the data subject making a written SAR to a data controller, and paying the requisite fee, a data subject is entitled to be:

(1) told whether any of their personal data is being processed;

(2) given a description of the personal data, the reasons it is being processed, and whether it will be given to any other organisations or people;

(3) given a copy of the information comprising the data; and

(4) given details of the source of the data (where this is available).

In this case it was not in dispute that CSD was a data controller and was processing personal data of each claimant.

The subject access request

The couple made a formal written subject access request (SAR) to CSD under section 7 DPA. CSD did not provide the requested information.

The claimants then brought a claim for:

(1) a declaration that CSD had failed to comply with its subject access duties under section 7 of the DPA; and

(2) an order under section 7(9) of the DPA requiring CSD to comply with those duties.

In response, CSD sought to rely on certain exemptions in order to excuse its non-compliance with section 7 of the DPA.

Exemptions from the subject access right

Two exemptions in particular were argued by the defendant in this case, which relate to personal data:

(1) processed for the purposes of the prevention or detection of crime or the apprehension or prosecution of offenders under section 29(1) of the DPA (the crime exemption); and

(2) covered by legal professional privilege under paragraph 10 of Schedule 7 (the privilege exemption).

Questions for the court...

  • Validity of the SAR: Did the claimants make a valid SAR? and if so...
  • Exemptions: Were the personal data being processed at the time of the SAR exempt from the subject access provisions under the DPA by virtue of: (a) the crime exemption; and/or (b) the privilege exemption? and if not...
  • Discretion of the court: Should the court's discretion be exercised so as to require compliance by the defendant with the subject access duties?

Validity of the SAR

Section 7(3) of the DPA allows a data controller to require proof of identity before complying with a SAR if the data controller "reasonably requires further information in order to satisfy himself" as to identity. The defendant claimed to require further proof as to the claimants' identity.

The court made fairly light work of this argument: There was never any proper basis for questioning the SAR's validity. The claimants' identity was well known to the defendant who had investigated and contacted them previously.


The crime exemption

Section 29 of the DPA states that "personal data processed for any of the following purposes - (a) the prevention or detection of crime, [or] (b) the apprehension or prosecution of offenders [...], are exempt from [...] section 7 in any case to the extent to which the application of those provisions to the data would be likely to prejudice any of the matters mentioned in this subsection."

It was for CSD, in asserting the exemption, to show that their case fell within the exemption.

The court noted that there were three different kinds of investigation that were relevant to the PhosAgro saga, namely: civil, regulatory and criminal. However, the main purpose of the investigation by CSD was the pursuit of civil remedies. Although it was accepted that it was likely that some of the personal data held by CSD relating to the claimants were held and had been processed for the purposes of detecting or prosecuting crime, the court was not persuaded that all the personal data held in relation to the claimants had been processed for those purposes. There was no evidence that CSD was involved in crime prevention or the apprehension of offenders.

The court offered some guidance to data controllers by reference to case law and the Information Commissioner's Office.

In principle, "a criminal investigator or prosecutor which is a private person or body would appear to have no lesser right to exemption than a public body processing data for the same purposes".

In terms of the likelihood of prejudice to proceedings, a data controller is required to examine:

(1) what disclosure would reveal;

(2) how the revelation would affect the proceedings; and

(3) whether the effect would have a "weighty and significant" chance of prejudicing the public interest in the investigation or prosecution, whilst focussing on the specifics and not generalities.

Any interference with the subject's access rights must be proportionate to the gravity of the threat to the public interest. A data controller is required to adopt "selective and targeted approach to non-disclosure". The court is then required to make a finding of fact based on those circumstances.

The defendant seemed to push a further policy argument on behalf of its business interests and the work of private investigators generally by suggesting that disclosure in the circumstances would "wholly undermine the work which CSD, and other similar organisations, carry out", although this was not accepted by the court.

The defendant failed to show in relation to "any, let alone all" the personal data that its compliance with the access requirement would cause prejudice to any relevant criminal and/or civil proceedings (be they issued and/or in contemplation). Although the defendant had argued that disclosure "would allow the claimants a tactical advantage" in relation to the ongoing and any contemplated proceedings, this did not amount to prejudice.

When all was said and done, the court was unwilling to grant what would have amounted to a blanket exemption from section 7 for organisations such as the defendant, or for criminal investigators, since such an approach was wrong in principle.

The privilege exemption

Paragraph 10 of Schedule 7 to the DPA states as follows: "Personal data are exempt from the subject information provisions if the data consist of information in respect of which a claim to legal professional privilege [...] could be maintained in legal proceedings."

As with the crime exemption above, the onus lay on the data controller CSD to prove that the privilege exemption applied.

Mr Justice Warby quoted the seminal case on privilege, Three Rivers District Council v Governor and Co of the Bank of England: "communications between parties or their solicitors and third parties for the purpose of obtaining information or advice in connection with existing or contemplated litigation are privileged, but only when the following conditions are satisfied: (a) litigation must be in progress or in contemplation; (b) the communications must have been made for the sole or dominant purpose of conducting that litigation; (c) the litigation must be adversarial, not investigative or inquisitorial."

Yes, there were criminal proceedings in progress in this case, as well as potential civil proceedings contemplated, and the claimants did not dispute that some personal data being held and processed by CSD may have been covered by litigation privilege. But, the couple argued that there was no way that all the personal data were so protected. The court agreed.

As with the crime exemption, the court refused to grant a blanket exemption for what may be a substantial quantity of data. Ultimately, CSD's arguments fell down on the following grounds:

(1) CSD had not attempted to provide the kind of detail required in order to uphold a claim to privilege;

(2) CSD had made no attempt to analyse which of the personal data it held/processed were covered by litigation privilege and it was not disproportionate to do so; and

(3) it was unlikely that all the personal data held would have attracted privilege (and indeed CSD acknowledged as much).

Discretion of the court

The court declined to take up the defendant's invitation to exercise discretion against the claimants on the grounds of abuse of process. The SAR, so said the defendant, represented a misuse of the information rights conferred by the DPA for the purpose of gaining an illegitimate procedural advantage in the Cyprus private prosecution, but the court disagreed.

The defendant also unsuccessfully pushed for the court's exercise of its discretion against the claimant due to the scale of the data in question and (the alleged difficulties of compliance) and because it would be disproportionate to require the defendant to seek legal advice on the exemptions in respect of each and every page it holds.

The court had no interest in stepping into the shoes of the defendant as data controller in order to determine what information should or should not be provided. To do so would make the court the "primary decision-maker" in place of the data controller, which was inappropriate. Rather, the court's function was to review the data controller's conduct and processes, including the logic of its decision-making.


The claimants' SAR was valid. There was never any proper basis for questioning its validity. CSD's failure to disclose any personal data at all represented a breach of the claimants' subject access rights.

The personal data held by CSD that related to the claimants may have included some that was protected by the crime exemption, and some that was protected by litigation privilege, but it was not proven that all of it was so protected. CSD had not carried out the necessary analysis and it would be wrong for the court to carry out the analysis on CSD's behalf.

Enforcement was not disproportionate. The SAR or the proceedings did not represent an abuse of the claimant's rights or an abuse of process.

Accordingly, the court made the appropriate declaration and order sought in favour of the claimants.


The court stated that the first step now was for CSD to carry out its obligations under the DPA as ordered. Mr Justice Warby did, however, accept that "it is possible, as both sides recognised that there will be further disputes after that has been done. If there are, then the court may decide to inspect the data itself at a later date".

In the meantime, this case offers some useful guidance for data controllers in responding to subject access requests.

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 Video
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
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (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

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’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.


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.


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 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.


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.


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.


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.


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

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

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

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