…do they turn so slowly that they’ll lead to the Lord Chancellor committing a criminal offence?
On 21 December last year, as we were all sweeping up the mince piece crumbs, removing our party hats and switching off the office lights for another year, the Information Commissioner’s Office (ICO) published, with no accompanying publicity whatsoever, an enforcement notice served on the Secretary of State for Justice. The notice drew attention to the fact that in July 2017 the Ministry of Justice (MoJ) had had a backlog of 919 subject access requests from individuals, some of which dated back to 2012. And by November 2017 that had barely improved – to 793 cases dating back to 2014.
I intended to blog about this at the time, but it’s taken me around nine months to retrieve my chin from the floor, such was the force with which it dropped.
Because we should remember that the exercise of the right of subject access is a fundamental aspect of the fundamental right to protection of personal data. Requesting access to one’s data enables one to be aware of, and verify the lawfulness of, the processing. Don’t take my word for it – look at recital 41 of the-then applicable European data protection directive, and recital 63 of the now-applicable General Data Protection Regulation (GDPR).
And bear in mind that the nature of the MoJ’s work means it often receives subject access requests from prisoners, or others who are going through or have been through the criminal justice system. I imagine that a good many of these horrendously delayed requests were from people with a genuinely-held concern, or grievance, and not just from irritants like me who are interested in data controllers’ compliance.
The notice required MoJ to comply with all the outstanding requests by 31 October 2018. Now, you might raise an eyebrow at the fact that this gave the MoJ an extra eight months to respond to requests which were already incredibly late and which should have been responded to within forty days, but what’s an extra 284 days when things have slipped a little? (*Pseuds’ corner alert* It reminds me of Larkin’s line in The Whitsun Weddings about being so late that he feels: “all sense of being in a hurry gone”).
Maybe one reason the ICO gave MoJ so long to sort things out is that enforcement notices are serious things – a failure to comply is, after all, a criminal offence punishable on indictment by an unlimited fine. So one notes with interest a recent response to a freedom of information request for the regular updates which the notice also required MoJ to provide.
This reveals that by July this year MoJ had whittled down those 793 delayed cases to 285, with none dating back further than 2016. But I’m not going to start hanging out the bunting just yet, because a) more recent cases might well be more complex (because the issues behind them will be likely to be more current, and therefore potentially more complex, and b) because they don’t flaming well deserve any bunting because this was, and remains one of the most egregious and serious compliance failures it’s been my displeasure to have seen.
And what if they don’t clear them all by 31 October? The notice gives no leeway, no get-out – if any of those requests extant at November last year remains unanswered by November this year, the Right Honourable David Gauke MP (the current incumbent of the position of Secretary of State for Justice) will, it appears, have committed a criminal offence.
Will he be prosecuted?
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.