Expert Comment, Rob Corbet – Data Protection Ireland, Volume 10 Issue 2

Author:Mr Rob Corbet
Profession:Arthur Cox

The Court of Appeal in England and Wales has recently given judgments in two cases relating to the rights and limitations attaching to data subject access rights ('DSARs'). This is a vexed issue for data controllers who receive large volumes of widely formulated DSARs, and who struggle to understand the boundaries attaching to the rights of access and the associated exceptions. The cases bring some useful clarity, particularly in relation to the 'disproportionate effort' exemption and the relevance, or otherwise, of the data subject's motive in making the request.

Dawson-Damer v Taylor Wessing

This case, an appeal of a High Court decision, considered three issues which regularly arise in the context of contentious DSARs.

Privilege: The application of legal privilege to certain documentation held by a UK law firm (Taylor Wessing) in relation to an international family trust. Disproportionate effort: It also considered the application of the 'disproportionate effort' exemption in the UK Data Protection Acts 1998 (which is almost identical to the wording in the Irish Data Protection Acts 1988 and 2003). Data subject's motive: Finally, the case dealt with the relevance of the data subject's motive in making the request. Given the precedent value of the case, the UK Information Commissioner intervened and provided oral and written submissions.

On the first issue, the Court of Appeal concluded that the legal professional privilege exception relieves the data controller from complying with a DSAR, only to the extent that the relevant privilege exists under UK law. As the UK DPA does not contain an exception for documents not disclosable to a beneficiary of a trust under trust law principles, such documents remained potentially in scope for DSAR purposes. This aspect of the case is of narrow precedent value, given the uniqueness of the facts.

The Court's determination of the second issue, the 'disproportionate effort' exemption, is of greater precedent value.

The Information Commissioner had argued that the fact that the process of finding personal data would be costly or time-consuming should not be a reason for not complying with a DSAR, and that the 'disproportionate effort' exemption applies only to the process of the supply of data. This distinction also arises under section 4 of the Irish DPAs, and the Office of the Data Protection Commissioner has in the past tended to adopt a similar view to that expressed by the Information...

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