High Court considers purpose behind subject access request under the DPA

It is not uncommon for data controllers to be faced with subject access requests under s. 7 of the Data Protection Act 1998 the motivations for which appear to have nothing whatever to do with the purposes of the DPA.

The DPA seeks to protect individuals’ privacy rights with respect to data which is processed about them. The subject access provisions help people check up on that data and its processing (see for example YS v Minister voor Immigratie (Cases C-141/12 & C-372/12)). In practice, however, a subject access request is a fishing expedition with an eye on prospective litigation.

How does this affect the individual’s right to have his subject access complied with? The general answer is that, at least as regards applications to the Court under s. 7(9) DPA for the enforcement of a subject access request, the remedial discretion is wide enough to take the requester’s motive and purposes into account.

Kololo v Commissioner of Police for the Metropolis [2015] EWHC 600 (QB) – a judgment of Dingemans J handed down yesterday – looked set to consider the relevance of a requester’s motive (albeit that the context was not the commonplace pre-litigation fishing expedition). In the end, the judgment was largely fact-specific. Nonetheless, it is an interesting illustration of a Court engaging with a requester’s motive and that place of that motive in the statutory scheme.

The judgment is here: Kololo. There is also some press coverage in the Telegraph.

Mr Kololo is on death row in Kenya. He is challenging his conviction and sentence for robbery, kidnapping and murder of British nationals. He has never been to the UK, but officers of the Metropolitan Police were involved in the investigation of the crimes in Kenya and in evidence given at the trial.

His lawyers made subject access requests to the Foreign Office and the Metropolitan Police. The former provided data, but the Police refused. It said his request was an abuse of process.

The predominant purpose of the request was to assist with Mr Kololo’s appeal in the Kenyan Courts. The subject access request itself had said that the information sought “could prove crucial to Mr Kololo’s case”.

In his witness statement to the Court, however, Mr Kololo said that he also wanted to know what information the Police held on him “and what they are doing or have done with it”. He said he was worried about how information about him and his family may be used by the Police.

Dingemans J considered such worry to be speculative. Mr Kololo’s principal aim was plainly to obtain information which might assist with his appeal. But Dingemans J took this view (para. 31): “However, in order for any data which Mr Kololo might obtain from the Commissioner to be of any assistance to Mr Kololo on his appeal, it is likely that Mr Kololo will want to try and point to inaccuracies in the data” (if any such inaccuracies existed).

Therefore, Mr Kololo’s purpose was at least in part aligned with the purposes of the DPA: “a purpose for which Mr Kololo is making the subject access request is to determine whether there are inaccuracies in the data. This means that Mr Kololo (or his legal representatives) is making the subject access request to verify the accuracy of the data. This is so even though verifying the accuracy of the data is unlikely to be of assistance to Mr Kololo for his appellate proceedings. However if the data is not accurate Mr Kololo (or his legal representatives) may seek to correct any inaccuracies in the data. This might, depending on the inaccuracies, be of assistance to Mr Kololo for his other purposes” (para. 35).

Dingemans J noted that the Court’s discretion under s. 7(9) DPA was “’general and untrammelled’ but it is also common ground that such discretion should be exercised to give effect to the purposes of the DPA and be proportionate” (paragraph 32). On the facts, however, one of Mr Kololo’s purposes did accord with the purposes of the DPA. Therefore, his request was held not to be an abuse of process, and the Police were ordered to comply with it.

Additionally, Dingemans J briefly considered the Crime (International Co-operation) Act 2003 for an overseas court or prosecuting authority to request assistance from UK authorities. The existence of that mechanism also did not render Mr Kololo’s subject access request an abuse of process.

Anya Proops and Chris Knight appeared for the Commissioner of Police for the Metropolis.

Robin Hopkins @hopkinsrobin