A thread on Twitter by solicitor Martin Sloan has drawn attention to a change to official guidance on the question of when a subject access request (pursuant to Article 15 of the General Data Protection Regulation (GDPR)) “starts”, in circumstances where a controller processes large amounts of data and asks the data subject to specify what information is sought.
Recital 63 of GDPR says that where a controller processes “a large quantity of information concerning the data subject [it] should be able to request that, before the information is delivered, the data subject specify the information or the processing activities to which the request relates”. This certainly seems to suggest that it is only when the controller is ready to “deliver” the information (i.e. when it has already searched for and retrieved it) that it can ask for the request to be, in effect, narrowed down.
However, guidance from the Information Commissioner’s Office (ICO) used to say* “If you process a large amount of information about an individual you can ask them for more information to clarify their request. You should only ask for information that you reasonably need to find the personal data covered by the request. You need to let the individual know as soon as possible that you need more information from them before responding to their request. The period for responding to the request begins when you receive the additional information” (emphasis added). This was similar to the position which obtained under the prior Data Protection Act 1998, which provided that a controller was not obliged to comply with a request unless it was supplied with such information as was reasonably required to locate the information which the data subject sought.
But the ICO now says: “If you process a large amount of information about an individual, you may ask them to specify the information or processing activities their request relates to before responding to the request. However, this does not affect the timescale for responding – you must still respond to their request within one month” (emphasis also added).
The change appears to be correct as a matter of law (by reference to recital 63), but it is possible that it may lead to an increase in reliance by controllers on Article 12(3), which potentially allows an extension to the one month period for compliance if a request is complex.
The new wording is contained in the ICO’s draft detailed guidance on subject access requests, which is currently out for consultation. One presumes the ICO thought this particular change was sufficiently important to introduce it in advance, but it is rather surprising that no announcement was made.
[UPDATE: Martin has now got a piece on Brodies’ own website about this].
[*the link here is to an archived page].