(See also the follow-up piece here)
An interesting case is being heard in the High Court, arising from an apparent error whereby, in responding to a subject access request (SAR), the London Borough of Lambeth allowed the recipient (and now defendant) data subject to electronically manipulate the information sent to him. This in turn enabled him to remove redactions, and identify someone who had made allegations against him and his wife (about the care they were providing to their child).
This is nightmare scenario for a controller – to inadvertently disclose extremely sensitive information, while responding to a SAR. In this instance, Lambeth have now brought a claim in breach of confidence against the defendant data subject, on the grounds that: the data was provided to the data subject in circumstances where he knew it was confidential; that he breached that confidentiality by unredacting the data, retaining an unredacted copy of the file, using the evidence to write a pre-action letter to the person who made allegations against him and his wife and threatening to bring court proceedings against them based on the information; and that it is integral to the work of Children’s Services that people who bring to its attention instances of perceived inadequate care or neglect of children are able to do so under conditions of confidentiality and can be assured that their confidentiality will be respected.
The instant proceedings were primarily concerned with a strike-out application by the defendant data subject, on the grounds of non-compliance by Lambeth with its (litigation) disclosure obligations. This application was roundly dismissed, and the matter will proceed to trial.
But of particular note is that, notwithstanding that the original error was Lambeth’s, it was revealed in the proceedings that the Information Commissioner’s Office (ICO) is also prosecuting the defendant data subject on charges of committing the offences of knowingly or recklessly re-identifying de-identified personal data, without the consent of the data controller, and knowingly or recklessly processing re-identified personal data, without the consent of the data controller. These are new offences created by sections 171(1) and 171(5) of the Data Protection Act 2018, and, when that Act was passed, it appeared that the mischief the provisions sought to address was the risk of hackers and fraudsters attempting to identify data subjects from large datasets (see the debates at Bill stage). It will be interesting to see if the ICO’s prosecution here results in a conviction. But it will also be interesting to see if ICO considers similar prosecutions in other circumstances. Although there is a public interest defence (among others) to section 171 charges, it is not an uncommon occurrence for public authorities (particularly) to inadvertently disclose or publish information with imperfect redactions. It certainly appears, on a plain reading of section 171, that someone re-identifying de-identified personal data (even if, say, for idle reasons of curiosity) might not always be able to avail themselves of the public interest defence.
And what is unsaid in the judgment, is whether Lambeth are facing any sort of civil, regulatory action from the ICO, arising from their error in sending the imperfectly redacted information in the first place.
The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.