Data Subject Access Requests: paper files and proportionate searches
In the long-running saga of Dawson-Damer v Taylor Wessing and ors the High Court (on remission from the Court of Appeal) has made a number of important findings that have relevance to data subject access requests (DSAR).
The claim was made by beneficiaries of a Bahamian Trust that its UK solicitors, Taylor Wessing, had failed to comply with DSARs made under the Data Protection Act 1998 (DPA).
There are two issues in the High Court's decision which are of particular interest to employers handling DSARs: what constitutes a relevant filing system and what is a proportionate search?
The High Court confirmed that Taylor Wessing's paper files were a "relevant filing system" for the purposes of the DPA 1998. The judge considered that as the files were arranged chronologically the personal data could be "easily retrieved" and that a page turning exercise through those files looking for personal data was not unduly onerous.
This departs from the Court of Appeal's more restrictive interpretation in Durant v FSA which was that a manual filing system would be a relevant filing system only if it was broadly equivalent to a computerised system in that it could be easily searched for personal data. The judgment recognised that Durant was decided before the right to protection of personal data was enshrined as a fundamental EU right. This has shifted the balance from the burden on the data controller to protecting the data subject. The question of whether data could be "easily retrieved" should not be looked at in isolation but alongside whether it was structured by reference to specific criteria "related to individuals". There are 35 paper files (made prior to electronic filing) which must now be searched through for personal data. However, it is understood that permission to appeal on this issue has already been granted.
On the question of what is proportionate, the deputy judge found that in relation to one of the categories of data, Taylor Wessing had not discharged the burden of showing that a search would be disproportionate because it had not served evidence setting out the time and cost involved in conducting a search for the claimants' personal data. However, in relation to documents held in Mimecast, a backup system, it was disproportionate to require Taylor Wessing to conduct searches of this as it would reveal confidential information about their employees or other unrelated clients. In contrast, the High Court held that searches of personal spaces of current employees (in which they could save documents and emails) would not be disproportionate.
Since the introduction of GDPR, employers are reporting a significant increase in the number of DSARS. Although this decision concerned the DPA 1998 (which has now been replaced by the DPA 2018), the Court's decision is relevant as GDPR contains similar provisions in relation to filing systems and requests which are "manifestly unfounded or excessive". It emphasises the importance of evidencing the time and cost involved where alleging that compliance is disproportionate.
For more information, please contact Robert Thomas.