SARs and Proportionality: Good news for employers?
Last month, the Court of Appeal in the case of Dawson-Damer v Taylor Wessing LLP (read the full judgement here) held that in searching for information organisations, in certain circumstances, could claim disproportionate effort when dealing with Subject Access Requests (SAR). But why is this good news for employers – please read on!
What is a SAR?
A SAR is a written request made by an individual under the Data Protection Act 1998 (DPA) to access personal information that an organisation holds about the individual.
SARs are becoming an increasingly popular tool for disgruntled employees seeking to obtain documentation held by their employer or ex-employer, usually in situations where there is a grievance, dispute or dismissal.
Why was this case before the courts?
Mrs Dawson-Damer and her two adopted children are the beneficiaries of various Bahamian trusts. Back in 2014, the Dawson-Damers sought disclosure of personal data from the solicitors (Taylor Wessing) acting on behalf of the trusts. The SAR was made in connection with a dispute regarding the trusts which was raised in the Supreme Court of the Bahamas.
Among other matters, Taylor Wessing asserted that they did not need to provide the requested information because it was not reasonable or proportionate to carry out a search for the information and to assess what was covered by privilege and what was not.
What did the Court of Appeal say?
The DPA allows organisations to refuse a SAR where the supply of the information requested would involve “disproportionate effort”. The ICO’s Subject Access Code of Practice suggests that only the work in producing copies is relevant in terms of this proportionality assessment.
However, the court found that when assessing whether responding to a SAR would have a disproportionate effort, consideration should be given to both:-
- the work needed to supply copies of the relevant information; and
- the work needed to search for the relevant information.
Why is case important for employers?
Whilst in this particular case, the Court of Appeal overturned the High Court’s earlier finding and found that in this case complying with the request would not create disproportionate effort, the ruling itself does appear to widen the scope of the exception to include the work needed to search for relevant information which could assist employers when dealing with SARs.
In passing its judgement, the court indicated that searches for information should rarely be disproportionate as organisations should be designing their systems and procedures in such a way that assists them in responding to SARs (and certainly this should be case as we near ever closer to GDPR implementation). Whilst noting that in so far as possible a SAR should be enforced there is perhaps greater scope to argue disproportionate effort in genuine cases.
Look out for our upcoming blog which looks at why this case is also detrimental to employers dealing with SARs.