GDPR and Subject Access Requests

GDPR and Subject Access Requests

Our fifth blog from Karen Heaton of Data Protection 4 Business covers how to handle a request from a patient or customer for details of the information that you hold on them.

In our blog today, we look at a data subject’s right to access, a powerful tool for individuals who have concerns about what information organisations hold about them.  Unfortunately, it can also be used for litigious purposes and such a request should be taken very seriously within your organisation, so please read on!

A data subject, in other words, you or I, can request a free copy of all personal data relating to us that an organisation holds – in any format – paper files, digital, videos or voice records.  Ok, do I have your attention now?  Even for a small organisation, that can amount to a lot of data.

Oh, and you have one calendar month to respond.

So, what must you provide and what is exempt?  Well, let’s see…

What information must I provide?

You must provide the following long list of information in relation to the personal data being processed as well as the data itself:

  • the purposes of your processing
  • the categories of personal data concerned
  • the recipients or categories of recipient you disclose the personal data to
  • your retention period for storing the personal data or, where this is not possible, your criteria for determining how long you will store it
  • the existence of their right to request rectification, erasure or restriction or to object to such processing
  • information about the source of the data, where it was not obtained directly from the individual
  • the existence of automated decision-making (including profiling)
  • the safeguards you provide if you transfer personal data to a third country or international organisation
  • the right to lodge a complaint with the ICO or another supervisory authority

I have a question or two:  would you know where to find the data? Would you be able to respond to the other information points above regarding the data you hold?  This is not a simple task and can amount to an operational headache for many organisations.

What information can I withhold?

The most common type of data that should be withheld is data mentioning third parties (unless they have given consent for their data to be shared or it is reasonable not to require such consent – confused?).  For example, an email chain where people other than the data subject are mentioned would need to be considered for redacting.  How easily can your organisation find, review and redact third party information?

Other examples of exempted information:

Specific information regarding medical organisations

Often, my clients have concerns that some law firms may use SARs to obtain medical data for free that was previously chargeable.

Subject Access Request (free) vs Access to Medical Records Act 1988 (chargeable):
Requests from Solicitors acting on behalf of a Patient

The British Medical Association advises that a patient can authorise their solicitor, or another third party, to make a SAR on their behalf. There are very few circumstances when a medical practice will be able to lawfully decline such requests. In this instance, you should ask the person acting on their behalf if there is specific data that they require, for example, are they requesting data covering a specific time period or illness or operation?  This is a valid question for you to ask if the patient data file is substantial.

Tip:  Don’t forget to get valid consent from the patient to disclose their personal and sensitive data to the Solicitor or third party. 

If, however, the request is asking for a report to be written or it is asking for an interpretation of information within the record, this request goes beyond a SAR. It is likely that such requests will fall under the Access to Medical Reports Act 1988, for which a fee may be charged.

Requests from an Insurance company

The British Medical Association, ICO and Association of British Insurers currently advise that Insurance companies should use the provisions of the Access to Medical Reports Act 1988 to seek access to medical records and that the use of SARs to obtain medical information for life assurance purposes is an abuse of subject access rights.

So, that scenario is a bit more clear cut.

The bottom line is….

Your organisation or medical practice must take the time to consider and plan how to respond to a Subject Access Request from an operational perspective.   Don’t wait until you receive one to work out how it should be done.  The clock starts ticking from the day you receive the request.

 

Today’s fact.   Access to your data is a basic Right under GDPR and Data Protection Act 2018.   A data subject can make a complaint to the ICO if an organisation fails to respond to a Subject Access Request. Further failures to respond to requests from the ICO and any Enforcement Notice they serve, is a criminal offence.

=>   This is worst case scenario and easily avoided.  Ensure you have a robust operating procedure to handle Subject Access Requests and train your staff in how to respond, when to respond and what information to provide.

See you next week!

Karen Heaton Data Protection 4 Business

 

Karen

Karen Heaton, CIPP/E, CIPM
Certified Information Privacy Professional
Data Protection 4 Business Limited

Previous blogs in the series:

GDPR and data processing

GDPR and data processing

In the third in our GDPR for healthcare blog series, Karen Heaton of Data Protection for Business discusses how to ensure that you are processing data lawfully and the necessity to track the data subjects’ consent.

How many emails did you receive in the run up to 25th May this year about ‘opt-ins’ to receive marketing? I, for one, enjoyed a clear out of my junk mail. Now, only products and services I am actually interested in arrive in my Inbox. Not only that, but now organisations have to take my unsubscribe request seriously. This was clearly not the case in the past.

But were all these emails necessary? Well, that depends on the lawful basis you have for processing an individual’s data and also how you received an individual’s data.

So, to answer this question, you need first to understand a) your data and b) your lawful basis for using that data.

Understanding your data

This is the crux of data protection compliance. Without properly mapping out your data, you will struggle to be compliant with all aspects of data protection. Why? Because if you cannot answer the basic questions of….

  • What type of data you have – personal data, or Special Category data – Sensitive / Child
  • Where did you source the data
  • Who has access to that data
  • Which processing activities do you undertake on that data – sending marketing messages, sharing with third parties, analysing data for demographics or other profiling types of activities
  • Lawful basis for processing
  • Which country is it stored in

….then you may be asking for consent unnecessarily, or not asking for consent when you should be. As well as a raft of other non-compliant activities, by the way (and it’s a long list!).

In short, you are risking a breach of the core Principles of data protection which, as we learned in last week’s blog, attract: higher level fines; risk of prosecution; audits by the ICO and restriction of business activities. For medical practices, in particular, and client facing businesses in general, there is the potential for non-trivial reputational damage from any of these actions.

 

lawful processing

Lawful basis for processing data

Once you have itemised the personal data within your organisation, then ask yourself which of the following lawful reasons apply to each of the processing activities undertaken on the data. If none of numbers 1-5 apply, then you must seek consent. Medical data and other Special Category data requires explicit consent.

1. Performance of a contract entered into with the data subject

2. Legal Obligation which the Controller must comply with

3. Legitimate Interest of the Controller

4. Vital Interests of the data subject

5. Performance of a task carried out in the Public Interest

6. Consent – the organisation must be able to obtain, maintain and validate lawful consent received from the individual

Example:

A small business selling products has a database of around 3,000 contacts and wants to send those contacts a monthly newsletter with their new product information and special offers. Do they need to send all contacts an ‘opt-in’ to marketing email?

If the company can validate that all their contacts are or were customers or had previously asked for information on their products, and the company had an unsubscribe option in place, then probably not (as data was received from customer for either performance of contract, consent or legitimate interest). However, they must ensure that all new customers ‘opt-in’ to marketing emails and that the unsubscribe option is clear and easy to use.

If the company is not sure where some of its contacts came from, then those will require consent to receive marketing emails. In particular, if contact data were purchased from a third party, the third party has the duty to ensure that consent to sell or transfer their contact details was received from the data subject. If this cannot be confirmed, then consent to marketing is required.

Tracking consent

Where consent is required to process data, your systems must be set up to track and manage that consent, preferably with a description of how consent was given (e.g. during customer registration process or during a consultation). That way, an audit trail of consent is maintained which will assist in demonstrating your organisation’s compliance with data protection, if questioned.

Today’s fact:

In the ICO quarterly statistics from Q1 2018, out of 23 industry sectors, the Health sector had the highest numbers of data breaches for any sector – 677 out of a total 3146 reported incidents – 22% of the total.

Medical data is a Special Category of data and a therefore a higher standard for processing and seeking consent is in place. Individuals are much more aware and inquisitive about how their medical information is used.

=>You must understand your all responsibilities as a Data Controller. For Controllers processing Special Category data, your operational risk is increased. Regular internal reviews of procedures and compliance audits is highly recommended.

See you next week!

Karen Heaton Data Protection 4 Business

Karen Heaton, CIPP/E, CIPM
Certified Information Privacy Professional
Data Protection 4 Business Limited

 

Previous blogs in this series:
GDPR for Healthcare – an introduction
Data Protection Operational Risks and Penalties