Blog Series #5 – Subject Access Requests
November 19th, 2018
Right to Access using a Subject Access Requests (SAR)
In our blog today, we look at a data subject’s right to access, a powerful tool for individuals who have concerns about what information organisations hold about them.
Unfortunately, it can also be used for litigious purposes and such a request should be taken very seriously within your organisation, so please read on!
A data subject, in other words, you or I, can request a free copy of all personal data relating to us that an organisation holds – in any format – paper files, digital, videos or voice records.
Ok, do I have our attention now? Even for a small organisation, that can amount to a lot of data.
Oh, and you have one calendar month to respond.
So, what must you provide and what is exempt? Well, let’s see…
What information must I provide?
You must provide the following long list of information in relation to the personal data being processed as well as the data themselves:
- the purposes of your processing
- the categories of personal data concerned
- the recipients or categories of recipient you disclose the personal data to
- your retention period for storing the personal data or, where this is not possible, your criteria for determining how long you will store it
- the existence of their right to request rectification, erasure or restriction or to object to such processing
- information about the source of the data, where it was not obtained directly from the individual
- the existence of automated decision-making (including profiling)
- the safeguards you provide if you transfer personal data to a third country or international organisation
- the right to lodge a complaint with the ICO or another supervisory authority
I have a question or two: would you know where to find the data? would you be able to respond to the other information points above regarding the data you hold?
This is not a simple task and can amount to an operational headache for many organisations.
What information can I withhold?
The most common type of data that should be withheld is data mentioning third parties (unless they have given consent for their data to be shared or it is reasonable not to require such consent – confused?). For example, an email chain where people other than the data subject are mentioned would need to be considered for redacting.
How easy can your organisation find, review and redact third party information?
Other examples of exempted information:
Specific information regarding medical organisations
Often, my clients have concerns that some law firms may use SARs to obtain medical data for free that was previously chargeable.
Subject Access Request (free) vs Access to Medical Records Act 1988 (chargeable)
The British Medical Association advises that a patient can authorise their solicitor, or another third party, to make a SAR on their behalf. There are very few circumstances when a medical practise will be able to lawfully decline such requests.
In this instance, you should ask the person acting on their behalf, if there is specific data that they require, for example are they requesting data covering a specific time period or illness or operation? This is a valid question for you to ask if the patient data file is substantial.
Tip: Don’t forget to get valid consent from the patient to disclose their personal and sensitive data to the Solicitor or third party.
If, however, the request is asking for a report to be written or it is asking for an interpretation of information within the record this request goes beyond a SAR. It is likely that such requests will fall under the Access to Medical Reports Act 1988, for which a fee may be charged.
The British Medical Association, ICO and Association of British Insurers currently advise that Insurance companies should use the provisions of the Access to Medical Reports Act 1988 to seek access to medical records and that the use of SARs to obtain medical information for life assurance purposes is an abuse of subject access rights.
So, that scenario is a bit more clear cut. 😊
The bottom line is….
Your organisation or medical practise must take the time to consider and plan how to respond to a Subject Access Request from an operational perspective. Don’t wait until you receive one to work out how it should be done. The clock starts ticking from the day you receive the request.
Today’s fact. Access to your data is a basic Right under GDPR and Data Protection Act 2018. A data subject can make a complaint to the ICO if an organisation fails to respond to a Subject Access Request.
Further failures to respond to requests from the ICO and any Enforcement Notice they serve, is a criminal offence.
=> This is worst case scenario and easily avoided. Ensure you have a robust operating procedure to handle Subject Access Requests and train your staff in how to respond, when to respond and what information to provide.