Thursday 28 September 2017

The future for “free” Subject Access Requests

Parliamentarians will soon be debating the merits of the Data Protection Bill, and I’m wondering whether much consideration will be given to the implications of the proposal to gift citizens with “free” Subject Access Requests. 

What parliamentarian might oppose such a measure? After all, what’s not to like about “free” stuff?

But hang on a minute. This stuff is not “free”. Citizens will pay for it, in the end, through increased charges, as business costs rise for data controllers.

That's obviously not really an issue if the cost implications are marginal.

But a good number of the data controllers I am in regular contact with have no real idea of the cost implications of free subject access requests. I’m regularly asked about the contingencies other organisations are making, as they are finding it very hard to make any plans about what additional resources might be required to ensure that the new SAR timescales are met, and that (potential) draconian fines for non-compliance with the new standard are not imposed upon them by the regulator. 

How many additional staff should be trained on dealing with SARs?  Where can expert advice on SAR exemptions be obtained? Can professional advisors be held on standby just in case the client needs access to specialist advice in a hurry? If no one has an idea of the potential costs, who within the organisation will approve the budget that may be required to deal with these contingencies? These are the sorts of questions that I regularly hear being asked.

While many of the organisations I deal with are currently facing relatively low levels of SARs currently, they really don’t have a clue as to how “their” customers’ behaviour will change when the ability to charge a £10 fee is removed.

And this is before citizens rights groups encourage individuals to vent their frustration on an organisation through the weapon of the SAR.

If I were Ryan Air, for example, I would be seriously worried. That company has already managed to upset many thousands of its customers through recent changes to its flight schedules, and a good few of them might feel minded to give it a good administrative kicking by forcing it to deal with a tsunami of SARs. Just for the hell of it.  Don't get mad – get your SAR instead.

So what’s the solution?

If I were a cautions Parliamentarian, I would amend the Bill by proposing a review mechanism, enabling the Secretary of State to reintroduce SAR fees if, in the light of experience, data controllers faced significant hardships in dealing with free SARs.

What does this mean?

It would enable the new Data Protection Act to be amended in the light of empirical evidence about the implications of the measure. No hard evidence currently exists as to the implications of “free” SARs in the UK. So lets see what will happen over the next two years. Granted, data controllers in other EU countries that currently have a “free” SAR regime experience relatively few difficulties in dealing with SARs. But perhaps that's because the culture in those countries is that citizens make relatively few SARs. This cannot be said to be the case in this country – especially when the complaints logs published by the ICO so frequently mention frustration with SARs as a key complaint area.    
Would this proposal enrage the data protection community?

To be frank, any proposal can enrage some sections of the data protection community. The Privacy Taliban might well see this as an outright attack on the fundamental rights of individuals, and therefore something to fiercely oppose.  But it isn’t a fundamental human right to expect a free SAR. That’s why our data protection laws have always provided for modest SAR fees. For those that support the principle of “free” stuff, of course there will be opposition.

But the majority of the privacy community might take stock and agree that it would be helpful to continue with the practice of evidence-based policy making. And if the evidence, based on actual outcomes, turned out to significantly different to what was expected, any unwanted (and unforeseen) implications could be dealt with in due course.