31 December 2007

Failure to comply in full with an Access Request 

In June 2006, I received a complaint from a firm of solicitors acting on behalf of a client regarding alleged non-compliance with a subject access request. The data subject had made an access request to her employer, D., in March 2006 but it had not been complied with within the statutory forty day period. 

My Office wrote to the data controller and we subsequently received a reply to the effect that the material sought in the access request had now been supplied. However, following examination of the documents received, the solicitor for the data subject communicated further with my Office and identified certain documents omitted by the data controller. Particular reference was made to documents in relation to a workplace accident in which the data subject was involved in October 2004. My Office contacted D. seeking an explanation for the missing documents. While it responded by providing observations on a number of the missing documents, it also stated that it was obtaining legal advice regarding the release of the documents relating to the workplace accident. 

After the exchange of detailed correspondence between my Office, D. and its legal representatives, an index of all of the personal information which had been released was provided to my Office. In relation to the documents concerning the workplace accident, the solicitors for the data controller confirmed that their client was in possession of both an Internal Accident Report and a Consulting Engineer’s Report. It stated that both documents were prepared in contemplation of a personal injury claim and were therefore privileged. 

To satisfy ourselves that there was a sound basis for the legal privilege claim in relation to these documents, my Office sought information from the data controller regarding the dates on which the two reports were created. It was confirmed that the Internal Accident Report Form was created in the days immediately following the workplace accident and the Consulting Engineers Report was created some nineteen months later in May 2006. My Office pointed out to the data controller’s solicitor that the claim of legal privilege related only to communications between a client and his professional legal advisers or between those advisers and that this provision could not be applied to the internal accident report created shortly after the incident. In light of the information available to my Office, we accepted that the claim of legal privilege could be applied to the Consulting Engineer’s Report. The data controller continued, however, to claim legal privilege on both documents. In an attempt to bring closure to this matter, my Office requested a confidential sighting of the Internal Accident Report. Regrettably, the data controller refused to comply with this request and I had no option but to serve an Information Notice requiring that a copy of the Internal Accident Report be furnished to me. The Internal Accident Report was supplied to me in response to the Information Notice. On examining the Report I was satisfied that it contained personal data of the data subject and I was further satisfied that the limited exemptions to the right of access set down in the Acts did not apply to this document. The document also contained some limited personal data of third parties and non personal information which we advised the data controller to redact with the balance to be released voluntarily to the data subject. The Report was subsequently released in accordance with our advice. 
There is a tendency for data controllers in some cases to claim non-relevant exemptions under Sections 4 or 5 of the Acts to restrict the right of access. With increased frequency, accident reports in relation to workplace incidents are being withheld with data controllers claiming legal privilege on such reports. I do not accept that legal privilege applies to such reports. It is standard procedure for an accident report to be compiled by an employer in the aftermath of a workplace accident and such reports clearly do not fall into the category of personal data in respect of which a claim of legal privilege could be maintained in a court in relation to communications between a client and his professional legal advisers or between those advisers. Any data controller who is reported to me as having restricted a data subject’s right of access to reports of this nature will face an investigation by my Office involving a close scrutiny of the grounds for applying the restriction. I will have no hesitation in using my full enforcement powers to ensure the rights of the data subject are upheld in relation to such cases.