Government page on subject access rights is not accurate
Right of access to data about oneself is recognised as a fundamental right (article 8(2) of the Charter of Fundamental Rights of the European Union*). Section 7 of the UK’s Data Protection Act 1998 (DPA) gives expression to this, and provides that as a general right individuals are entitled to be told whether someone else is processing their data, and why, and furthermore (in terms) to be given a copy of that data. The European General Data Protection Regulation retains and bolsters this right, and recognises its importance by placing it in the category of provisions non-compliance with which could result in an administrative fine for a data controller of up to €20m or 4% of turnover (whichever is higher).
So subject access is important, and this is reflected in the fact that it is almost certainly the most litigated of provisions of the DPA (a surprisingly under-litigated piece of legislation). Many data controllers need to commit significant resources to comply with it, and the Information Commissioner’s Office (ICO) produced a statutory code of practice on the subject in 2014.
But it is not an absolute right. The DPA explains that there are exemptions to the right where, for instance, compliance would be likely to prejudice the course of criminal justice, or national security, or, in the case of health and social care records, would be likely to cause serious harm to the data subject or another person. Additionally the DPA recognises that, where complying with a subject access request would involve disclosing information about another individual, the data controller should not comply unless that other person consents, or unless it “is reasonable in all the circumstances to comply with the request without the consent of the other individual” (section 7(4) DPA).
But this important caveat (the engagement of the parallel rights of third parties) to the right of subject access is something which is almost entirely omitted in the government’s own web guidance regarding access to CCTV footage of oneself. It says
The CCTV owner must provide you with a copy of the footage that you can be seen in. They can edit the footage to protect the identities of other people.
The latter sentence is true, and especially in the case where footage captures third parties it is often appropriate to take measures to mask their identities. But the first sentence is simply not true. And I think it is concerning that “the best place to find government services and information” (as gov.uk describes itself) is wrong in its description of a fundamental right.
A data controller (let’s ignore the point that a “CCTV owner” might not necessarily be the data controller) does not have an unqualified obligation to provide information in response to a subject access request. As anyone working in data protection knows, the obligation is qualified by a number of exemptions. The page does allude to one of these (at section 29 of the DPA):
They can refuse your request if sharing the footage will put a criminal investigation at risk
But there are others – and the ICO has an excellent resource explaining them.
What I don’t understand is why the gov.uk page fails to provide better (accurate) information, and why it doesn’t provide a link to the ICO site. I appreciate that the terms and condition of gov.uk make clear that there is no guarantee that information is accurate, but I think there’s a risk here that data subjects could gather unreasonable expectations of their rights, and that this could lead to unnecessary grievances or disputes with data controllers.
Gov.uk invite comments about content, and I will be taking up this invitation. I hope they will amend.
The views in this post (and indeed all posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.