Subject access request as precursor to litigation? No problem

April 8th, 2016

Gurieva & Anor v Community Safety Development (UK) Ltd [2016] EWHC 643 (QB), a judgment of Warby J of 6 April 2016, is the High Court’s latest word on subject access requests. It illustrates some of the emerging trends in subject access litigation. It is also a salutary reminder to ensure that, for subject access request cases as for any other, adequate evidence is presented.

Warby J observed that “The general scheme of the “subject information” regime established by the Data Protection Directive, 95/46/EC (the Directive) and implemented via Part II of the DPA is by now quite familiar”. It does not, however, appear to have been very familiar to the Defendant in this case, a private investigation company.

The case involved Russian nationals and beneficial owners of a listed company; the Defendant had been investigating them, at the behest of a former business associate, with a view to having them prosecuted in Cyprus. The Claimants received various intimidating letters and requests for information. They made a subject access request of their own and, when they were fobbed off, sought a Court order under section 7(9) DPA. The Court obliged, and was distinctly unimpressed by the Defendant’s evidence and stance.

The case is largely fact-specific. The subject access request was clearly valid under section 7(1) purposes, the evidence did not support reliance on the section 29 crime exemption or the legal professional privilege exemption, and compliance would not be onerous.

The judgment confirms some well-established points. Section 29, for example, imposes quite a high threshold (necessary; significant and weighty chance of prejudice, etc). The party asserting legal professional privilege or disproportionate burden must make good those points.

Warby J noted the divergence in authorities on the approach to the Court’s discretion under section 7(9): ‘general and untrammelled’, or more confined (such that disclosure should be ordered absent some good reason). In this case, whatever the right approach, Warby J would have ordered disclosure in the Claimants’ favour.

He also confirmed the trend towards regarding subject access requests made with an eye on contemplated litigation as unproblematic. Such a motive does not matter and is no reason to refuse a disclosure order: “I have difficulty also with the notion that the use of a SAR for the purpose of obtaining early access to information that might otherwise be obtained via disclosure in pending or contemplated litigation is inherently improper.”

Data controllers take note.

Robin Hopkins @hopkinsrobin

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