The appellants were beneficiaries of a number of Bahamian trusts; the respondent solicitors (‘TW’) act on behalf of the trustee of these trusts. On 4 August 2014, the appellants served a subject access request (‘SAR’) on TW, requesting disclosure of the personal data relating to the appellants held by TW as the solicitors for the trustee. The appellants were not satisfied by TW’s response to the SAR. They therefore applied to the court to exercise its discretion under s.7(9) of the Data Protection Act 1998 (‘DPA’), and grant a declaration that TW had not complied with the SAR, and an order requiring them to do so. At first instance, this application was dismissed.
The appeal raised three principal issues:
- (i)The extent of the Legal Professional Privilege Exemption (‘the LPPE Issue’);
- (ii)Whether compliance with the SAR would involve disproportionate effort (‘the Proportionality Issue’); and
- (iii)Whether the SAR should be enforced as it was made for a collateral purpose (‘the Purpose Issue’).
The LPPE Issue
At first instance, HHJ Behrens held that the LPP Exemption should be interpreted purposively to include any documents that the trustee would normally be able to resist disclosing in the Bahamian proceedings, partly due to the provisions of s.83 of the Bahamian Trustee Act 1998.
The appellants contended that the LPP Exemption should be construed narrowly; only documents privileged against the appellants in English litigation should fall within its purview.
TW submitted that the LPP Exemption must be considered in the context in which is it to be applied. The existence of the LPP Exemption is evidence that Parliament did not intend for SARs to be used by data subjects as a means of using solicitors to reach their clients.
Further, the Bahamian context was important. The documents sought by the appellants are within the scope of s.83 of the Bahamian Trust Act 1998, which has the same substantive effect as LPP in relation to legal advice (and contains much broader exemptions in other respects). The LPP Exemption ought therefore cover advice subject to LPP under the governing law of the trusts.
This should all be seen within the context of principles applying to disclosure by trustees. It could not have been the intention of Parliament that the principles of non-disclosure could be circumvented by an SAR. LPP should be purposively interpreted to include documents within the trustee’s normal right to non-disclosure.
The Information Commissioner (‘IC’) agreed with the appellants’ position. The IC submitted that the DPA is a ‘gateway’ to the guarantee of data protection rights enshrined in the EU Charter of Fundamental Rights. Any exemptions must therefore be construed strictly.
The Proportionality Issue
At first instance the judge agreed with TW’s submissions that it would be disproportionate to comply with the SAR in the manner the appellants contended.
The appellants contended that it was clear that TW must hold the appellants’ personal data, and had failed to take adequate steps to locate and disclose this. The reasonableness and proportionality of the response falls to be judged in relation to the SAR itself, not in relation to the £10 fee or in any absolute terms.
TW submitted that they carried out a full review of the relevant documents, which allowed them to form a reasonable view that a substantial proportion were non-disclosable under the LPP Exemption, and the costs and time of filtering these documents out would be disproportionate.
The IC disagreed with the judge’s findings. Whilst proportionality was important, it could not be used by a data controller to avoid substantive compliance with an SAR. The correct approach is to examine the steps taken by a data controller, and then ask whether requiring further action would be disproportionate.
The Purpose Issue
HHJ Behrens held that he would not exercise his discretion under s.7(9) as the underlying purpose of the SAR was to obtain disclosure which might assist them in Bahamian proceedings – this was collateral to the purpose for which the SAR was ostensibly made.
The appellants contended that this was wrong in both law and fact. There was no legal principle that a court should not exercise its discretion under s.7(9) of the DPA if the data subject wished to use the information obtained for verifying or correcting data and another purpose. If such a rule existed, it would lead to satellite litigation to determine the ‘true’ purpose of any SAR. In any event, the collateral purpose in this case was not improper.
TW submitted that the judge had an untrammelled discretion, had exercised it properly and for good reasons, and his decision should therefore stand.
The IC’s position was that the court should approach the exercise of its discretion with the intention of vindicating the rights of the data subject. A ‘no other purpose’ rule would amount tot the creation of a new ground for rejecting an SAR which was not in Directive 95/46/EC. Foreign proceedings and/or data regimes were not a basis for refusing to give effect to a data subjects’ rights under EU and domestic law.
On the LPPE Issue:
- (1)The proper meaning of ‘legal proceedings’ in paragraph 10 of Schedule 7 to the DPA was proceedings in the UK only, and not other jurisdictions. This could be implied from the fact that Directive 95/46/EC was implemented by each member state individually (rather than centrally controlled by an EU body) and had Parliament wished otherwise, it would have had to have introduced various provisions to control this.
- (2)The DPA does not include an exemption for documents not normally disclosable to a beneficiary of a trust. They do not fall within the LPP Exemption.
- (3)The judge had construed the LPP Exemption too widely – the question of whether any of these documents were subject to privilege would be remitted to the Chancery Division for determination.
On the Proportionality Issue:
- (4)It falls to the data controller to show that compliance would disproportionate. TW had not yet shown that complying with the SAR would involve disproportionate cost or effort, and the court was not yet in a position to make a decision about the proportionality of any particular steps.
- (5)In appropriate circumstances, proportionality means that there will be limits to a search, but for public policy reasons SARs must be enforced where and so far as possible.
On the Purpose Issue:
- (6)The judge was wrong to find that the existence of a collateral purpose was a bar to complying with the SAR. There was not a ‘no other purpose’ rule that barred the exercise of the court’s discretion.
- (7)An order would be made under s.7(9) of the DPA and the case would be remitted to the Chancery Division for consideration of:
- a.Whether information within the scope of the subject access requests, held by the Respondent other than in electronic form, meets the requirements of s.1(1)(c) of the DPA;
- b.Whether any data within the scope of the subject access requests falls within the scope of the exemption at paragraph 7 of Schedule 10 to the DPA; and
- c.Whether, and if so to what extent, the Respondent may rely on s.8(2) of the DPA in response to any of the subject access requests.