The ICO’s New Subject Access Guidance

GDPR has introduced some new Data Subject rights including the right to erasure and data portability. The familiar right of Subject Access though still remains albeit with some additional obligations. Last week the Information Commissioner’s Office (ICO) published its long awaited right of access detailed guidance following a consultation exercise in December. The guidance provides some much needed clarification on key subject access issues Data Controllers have been grappling with since May 2018. 

Reasonable Searches 

Sometimes Data Subjects make subject access requests with the aim of creating maximum work for the recipient. “I want to see all the documents you hold which have my name in them, including e mails” is a common one. How much effort has to be made when searching for such information? The new guidance states that Controllers should make reasonable efforts to find and retrieve the requested information. However, they are “not required to conduct searches that would be unreasonable or disproportionate to the importance of providing access to the information.” Factors to consider when determining whether searches may be unreasonable or disproportionate are:

• the circumstances of the request; 
• any difficulties involved in finding the information; and 
• the fundamental nature of the right of access. 

Thus there is no obligation to make every possible effort to find all instances of personal data on the Data Controller’s systems. However, the burden of proof is on Controllers to be able to justify why a search is unreasonable or disproportionate. 

Stopping the Clock 

Data Controllers have one month to respond to a subject access request. Normally this period starts from the day the request is received. Previously the ICO guidance stated that the day after receipt counted as ‘day one’. They revised their position last year following a Court of Justice (CJEU) ruling. 

Data Controllers can ask the Data Subject to clarify their request, if it is unclear what they want, but this often leaves little time to meet the one month deadline. Having considered consultation responses, the ICO’s position now is that where a request requires clarification, in certain circumstances, the clock can be stopped whilst Controllers are waiting for clarification. 

Manifestly Unfounded and Excessive 

Article 12(5) of GDPR allows Data Controllers to refuse a Data Subject request or charge a fee where it is “manifestly unfounded or excessive.” The burden of proving this is on the Controllers whose staff often struggle with these concepts. The ICO has now provided additional guidance on these terms. 

A request may be manifestly unfounded if: 

• The individual clearly has no intention to exercise their right of access; or 
• The request is malicious in intent and is being used to harass an organisation with no real purpose other than to cause disruption. For example, the individual: 
• explicitly states, in the request itself or in other communications, that they intend to cause disruption; 
• makes unsubstantiated accusations against you or specific employees which are clearly prompted by malice; 
• targets a particular employee against whom they have some personal grudge; or 

• systematically sends different requests to the Controller as part of a campaign, e.g. once a week, with the intention of causing disruption. 

To determine whether a request is manifestly excessive Data Controllers need to consider whether it is clearly or obviously unreasonable. They should base this on whether the request is proportionate when balanced with the burden or costs involved in dealing with the request. This will mean taking into account all the circumstances of the request, including: 

• the nature of the requested information; 
• the context of the request, and the relationship between the Controller and the individual; 
• whether a refusal to provide the information or even acknowledge if the Controller holds it may cause substantive damage to the individual; 

• the Controller’s available resources; 
• whether the request largely repeats previous requests and a reasonable interval hasn’t elapsed; or 
• whether it overlaps with other requests (although if it relates to a completely separate set of information it is unlikely to be excessive).  

The Fee 

What can be included when charging a fee for manifestly unfounded or excessive requests? The new guidance says Data Controllers can take into account the administrative costs of: 

• assessing whether or not they are processing the information; 
• locating, retrieving and extracting the information; 
• providing a copy of the information; and 
• communicating the response to the individual 

A reasonable fee may include the costs of: 

• photocopying, printing, postage and any other costs involved in transferring the information to the individual; 
• equipment and supplies (e.g. discs, envelopes or USB devices) 

Staff time can also be included in the above based on the estimated time it will take staff to comply with the specific request, charged at a reasonable hourly rate. In the absence of relevant regulations under the Data Protection Act 2018, the ICO encourages Data Controllers to publish their criteria for charging a  fee and how they calculate it.  

Finally, the new ICO guidance emphasises the importance of preparation particularity the need to have: 

• Training for employees to enable them to recognise subject access requests;  
• Specific people appointed to deal with requests; 
• Policies and procedures; and  
• Technical systems in place to assist with the retrieval of requested information. 

Our Handling Subject Access Requests workshop is now available online. It covers all aspects of dealing with SARs including identifying and applying exemptions. Looking for a GDPR Qualification? Final places left on our online GDPR Practitioner Certificate

GDPR and Employee Data: H&M Fined 35 Million Euros

On 2^nd October 2020, the Hamburg Commissioner for Data Protection and Freedom of Information (Hamburg DP Commissioner) imposed a 35.3 million Euros fine on H&M Hennes &Mauritz for serious breaches of the General Data Protection Regulation (GDPR) at its service centre in Nuremberg. Specifically the breaches related to the covert and extensive monitoring of the personal information of several hundred employees. 

The Hamburg DP Commissioner is one of the 16 state Data Protection Commissioners in Germany. Details of the infringement and the fine were posted on the European Data Protection Board’s news feed. 

The Facts

H&M had been collecting and recording extensive information about the private lives of its employees since at least 2014.  The information was collected by supervisor during “Welcome Back Talks” which took place with employees after absences due to holidays or sickness; even after relatively short absences. Notes of the meetings were stored on a network drive. These included details of the employee’s vacation experiences, or details of their symptoms of illness and diagnosis if they had been taking sick leave. In some cases, supervisors had even obtained and recorded broader information about employees’ private lives such as details of family issues and religious beliefs. Some of the information that was recorded was highly detailed and recorded over extensive periods of time documenting the development of issues.

The information was digitally stored and partly readable by up to fifty other managers throughout the company. The company used this information to meticulously evaluate individual work performance and to obtain a detailed profile of employees for measures and decisions regarding their employment.

Employees were unaware that all this was happening until the data became accessible company-wide for several hours in October 2019 due to a configuration error.

The Hamburg Data Protection Commissioner became aware of this from press reports.
His first action was to order the company to” freeze” the network drive and then hand it over. The company submitted a data record of around 60 gigabytes for evaluation. Evidence from numerous witnesses confirmed the practice of collecting and recording this data. 

The Breaches and the Fine

The details of this case are quite shocking both in terms of the volume and type of information that was collected and recorded; the way in which it was done covertly; and the fact that the company used the information to evaluate its employees. The collection and recording of such ‘private information’ for monitoring purposes certainly breached the first three data protection principles in GDPR Article 5. The employees were not aware this was happening; so this was clearly neither fair nor transparent and they were therefore unable to exercise any rights in respect of this data. It is difficult to see what legal basis the company could have used to collect much of this information under both Articles 6 and 9 (the latter for the Special Category Data that was involved). The company collected far more information than was necessary and for much longer than necessary. It also appears that the company was conducting profiling of employees without employees knowledge, thus preventing them from exercising their rights under GDPR Article 22. There was no lawful basis for sharing very privet personal information with over 50 managers. In addition the activities of the company almost certainly breached the employee’s rights under Article 8 of the European Convention of Human Rights.
As the Hamburg Commissioner stated, this was a case of a serious disregard for the rights of the company’s employees.

What steps does H&M have to take now?

Based on the information reported by the European Data Protection Board it appears that the company has put forward a comprehensive plan of how it will take corrective action. The steps include the appointment of a “data protection coordinator” (It is unclear whether this is to be a Data Protection Officer); monthly data protection status updates and more protection for whistle-blowers. This seems to suggest the plan has come from the company rather than the Commissioner and it is not clear whether the Commissioner has used his regulatory powers to enforce this. In the UK the Information Commissioner could enforce these corrective actions by serving an Enforcement Notice under S.149 Data Protection Act 2018.

In addition the company has agreed to pay the employees “considerable compensation” as well as apologising. GDPR Article 82 provides that data subjects who have suffered material or non-material damage as a result of an infringement of the GDPR “shall have the right” to receive compensation from the Data Controller in respect of the damage suffered. According to the EDPB news post this is “an unprecedented acknowledgement of corporate responsibility following a data protection incident”. Whether or not it is unprecedented, it certainly is pragmatic given that the company avoids any protracted legal actions and the further adverse media attention that litigation would inevitably attract.  

Readers may be interested in our blogs on GDPR and Employee Surveillance. These and other GDPR developments will be discussed in detail by Ibrahim Hasan in our forthcoming online GDPR update workshop. Why not use the time working from home to achieve a GDPR qualification? Our next online GDPR Practitioner Certificate course is fully booked. There are a few places remaining on the courses following.

The British Airways Data Breach Fine

The ICO has finally issued a fine to British Airways (BA) for a cyber security breach which saw the personal and financial details of more than 400,000 customers being accessed by attackers.  

£20 million is a lot of money, even for British Airways, and especially in a global pandemic which has seen all airlines struggle financially. However it is a far cry from the original Notice of Intent, issued in issued in July 2018, for the sum of £183 Million.
But then again the smaller fine is no big surprise either.  

On 31st July, IAG (British Airways parent company) issued its Interim Management Report which states: 

“The exceptional charge of €22 million represents management’s best estimate of the amount of any penalty issued by the Information Commissioner’s Office (ICO) in the United Kingdom, relating to the theft of customer data at British Airways in 2018.
The process is ongoing and no final penalty notice has been issued“. 

The Cyber Attack 

The BA fine followed a cyber-attack during 2018, which remained undetected for more than two months. The attack involved diverting cardholder data from British Airways official website to one set up by the attacker.  

The attacker is believed to have potentially accessed the personal data of approximately 429,612 customers and staff. This included names, addresses, payment card numbers and CVV numbers of 244,000 BA customers. Other details thought to have been accessed include the combined card and CVV numbers of 77,000 customers and card numbers only for 108,000 customers. Usernames and passwords of BA employee and administrator accounts as well as usernames and PINs of up to 612 BA Executive Club accounts were also potentially accessed. 

Failure to Prevent the Attack 

According to the ICO, there were numerous measures BA could have used to mitigate or prevent the risk of an attacker being able to access the BA network. These include: 

• limiting access to applications, data and tools to only that which are required to fulfil a user’s role 
• undertaking rigorous testing, in the form of simulating a cyber-attack, on the business’ systems; 
• protecting employee and third party accounts with multi-factor authentication. 

Additional mitigating measures BA could have used are listed in the penalty notice.
None of these measures would have entailed excessive cost or technical barriers, with some available through the Microsoft Operating System used by BA. (You can read more about the causes of cyber security breaches in our recent blog post.) 

It may well be that British Airways launches an appeal in which case its reasoning and  actions when issuing fines under GDPR will be the subject of judicial scrutiny.
This will help GDPR Practitioners faced with similar ICO investigations.  

It will also be interesting to see what happens to the other outstanding Notice of Intent, relating to Marriott Hotels for £99 Million, as well as the ICO’s investigation into the more recent EasyJet data breach. Interesting times ahead. 

We have some places available on our Cyber Security for DPOs workshop in November. This and other GDPR developments will be covered in our new  online GDPR update workshop. 

Cyber Security and GDPR Compliance

Olu Odeniyi writes…

Data Protection Officers (DPOs), and others who work in data protection, will know that a fundamental requirement of GDPR is to protect personal data ”against accidental loss, destruction or damage, using appropriate technical or organisational measures” as stipulated in the sixth data protection principle in Article 5. As the recent British Airways data breach fine has shown, failure to comply can be costly.

Article 32 further requires measures to be implemented to ensure a level of security appropriate to the risk  including “the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services”. Other GDPR provisions, including article 24 and article 25, demand similar requirements. As threats to complying with these articles emanate from malicious activity, mistakes, process weaknesses and software application vulnerabilities, it is clear that cyber security is an essential element of GDPR compliance.

Although many organisations rely on the IT department, the Chief Information Security Officer (CISO) or the Senior Information Risk Officer (SIRO) to lead implementation of cyber security controls, DPOs need a good understanding  of this topic to most effectively discharge their responsibilities and ensure compliance. 

What is Cyber Security?

The first step is to understand what cyber security is and what it is not. Various definitions exist. Most people associate cyber security with digital services, computerised devices and other forms of information technology. Protection against accidental and malevolent activity, unauthorised data access and preservation of services are fundamental cyber security goals but there’s more. 

Cyber security touches the very heart of how we live work and play within the fourth industrial revolution as highlighted by the founder of the World Economic Forum. Boundaries between work and home life have never been so blurred.
Government engagement around the world is increasingly conducted via digital services and individuals can barely avoid interacting with online services on a daily basis. 

While numerous standards and frameworks exist to help drive best practice, each organisation needs to contextualise what cyber security means for itself. A survey of the most common standards and frameworks will be left for a later blog (some are highlighted further down in this article), yet every organisation should scope and detail its own meaningful definition of cyber security. High level definitions can be utilised if required to achieve this from respected organisations such as the National Cyber Security Centre (NCSC) or the National Institute of Standards and Technology (NIST). 

However, it’s a myth to think cyber security is a standard or a framework of itself and that only technology is involved. People utilise technology and digital services by means of a process or procedure. Therefore, effective cyber security comprises people, process and technology and many breaches could have been avoided given changes to either of these three areas. The remainder of this blog introduces cyber security under each of these headings.

People

It is often stated that people are the greatest weakness when it comes to cyber security, but it doesn’t have to be this way – they can be the strongest defence. The National Cyber Security Centre (NCSC) has performed leading research around people centric cyber security which organisations can benefit from. Staff know the issues they face better than anyone else and should be included in the risk analysis. By understanding productivity roadblocks, working pressures and specific training needs, new ways of working can be formulated to minimise breaches and security mistakes. 

For example, some groups could possibly opt to use enterprise collaboration applications (e.g. Microsoft Teams) to eradicate or decrease emails being sent to the wrong recipients. Watch the NCSC video or read the transcript for more information on developing people centric cyber security.

Security awareness training conducted well can be effective and significantly help prevent data and security breaches. Nonetheless, developing a security culture takes an organisation to the next level as staff develop their own sense of how to best protect the organisation and personal data. Culture change isn’t an overnight occurrence.
Focused effort and dedicated resources are required but the results will be worth it. 

Developing a security culture involves engaging with staff and seeking their input.
Small group sessions, organisation wide campaigns and open communication forums are some of the many approaches to transform cultures. Useful reading on the human aspects of cyber security can be found in the Cyber Security Culture Guidelines: Behavioural Aspects of Cyber Security report by  the European Union Agency for Cyber Security (ENISA).

It is important to ensure security measures and controls don’t hinder staff productivity or increase the likelihood that they will circumvent organisation policies. As the NCSC video above states, “if security doesn’t work for people, it doesn’t work”.

Process

Earlier this year I was asked to advise on a serious data breach where sensitive data had been disclosed. It so happened the breach could have been avoided if either processes, staff action or if different technology had otherwise been deployed. The role of policies, processes, guidelines and procedures in cyber security shouldn’t be underestimated, especially with large contingents of remote workers during a pandemic. (Read about the data protection challenges of remote working here)

Start by reviewing your organisation’s cyber and/or information security policies if they exist. Consider when the last updates were made and read the documents several times, making notes on their suitability or any glaring gaps. Check if any standards or frameworks are in use such as the ISO 27000 Information Security Family or the NIST Cyber Security Framework. Many others exist too. If so, familiarise yourself with the associated literature and determine where you can begin to get involved. 

Alternatively, you could be the staff member who introduces standards and frameworks into your organisation. You’ll likely need senior management support and the suggestion may have been considered previously. Either way, established best practice can help organisations review processes and streamline cyber security risk assessments. As mentioned previously, be sure to engage with staff who’ll likely see many process security risks for their departments that are blind to others.

At the very least, view the NCSC Risk management guidance which explains and recommends various concepts behind risk assessments. Combining cyber security risk assessments with Data Protection Impact Assessment (DPIAs) may also be an option in some cases. However, remember that while cyber security is essential for personal data protection, it extends to protecting the entire organisation too.

Technology

The use and maintenance of technology and digital services by staff, contractors and third-party suppliers forms the basis of technological aspects of cyber security. Online services, cloud computing and connected devices, or any other internet mediums through which data flows, are all cyber security concerns. Technology includes devices found in “smart homes” fitted with a degree of automation and the so-called Internet of Things (IoT), where numerous gadgets are connected online through a local network. Governments around the world are attempting to offer advice to mitigate the cyber risks associated with IoT devices. The UK Department for Digital, Culture, Media and Sport (DCMS) published a  Code of Practice for Consumer IoT Security in 2018, although widespread adoption is in its infancy.

Technology is also used to strengthen cyber defences through a number of security applications, which deliver varying levels of protection depending on how often they are updated. Basic anti-virus programs have long since been accompanied by a suite of new security applications many of which are connected to cloud-based detection engines which rely on Artificial Intelligence (AI) to improve performance. Nonetheless, a sound risk management methodology should always be established prior to investing in new protective technologies – benefits of the expected decrease in risk need to ideally be measurable and potential loss ought to supersede or equal expenditure. 

A great way to bring an organisations’ technical cyber security controls to a baseline standard is by adopting Cyber Essentials, a UK government backed scheme designed to guard against the most common cyber threats. Cyber Essentials outlines 5 control themes – firewalls, secure configuration, user configuration, malware protection and patch management. Organisations can become certified to Cyber Essentials in two ways – self-certification and Cyber Essentials Plus, where hands-on technical verification is carried out by an independent certified body.

Putting it all Together

Although this blog has described the people, process and technology aspects of cyber security separately, in reality all three areas need to be considered simultaneously.
A cyber security risk methodology should always form the heart of any cyber security defence strategy as part of overall business risk management. Those responsible for cyber security should also ensure they keep themselves updated as the security landscape has been changing rapidly, both in terms of malicious or accidental attacks and defences. The good news is that with a concerted effort, organisations can adequately protect themselves and their staff.

Olu will be examining this subject further in our Cyber Security for DPOs workshop in November. A few places left. Our GDPR Essentials E learning course is ideal for training frontline staff. In just over 30 minutes they will learn about the key provisions of GDPR and how to keep personal data safe.

Act Now Associate Appointed to Judicial Position

Act Now Training would like to congratulate Susan Wolf our senior associate, who has been appointed as a Fee Paid Member of the Upper Tribunal assigned to the Administrative Appeals Chamber (Information Rights Jurisdiction) and First Tier Tribunal General Regulatory Chamber (Information Rights Jurisdiction). 

We are delighted that Susan will continue in her current position at Act Now Training delivering our full range of online and classroom-based workshops. Susan also writes for our information law blog and has developed our very popular FOI Practitioner Certificate. 

Prior to joining us, Susan taught information rights practitioners on the LLM in Information Rights Law at at Northumbria University. She has also taught and presented workshops on FOI, EIR and access to EU information in Germany, the Czech Republic and throughout the UK. 

Commenting on Susan’s appointment Ibrahim Hasan Director of Act Now Training, said: 

“I am delighted that Susan’s expertise as an information rights lawyer has been recognised through this judicial appointment. I am sure that she will use her fantastic skills and experience to the benefit her new role.”

The Scottish Information Commissioner’s Annual (FOISA) Report 2020

The Scottish Information Commissioner, Daren Fitzhenry, recently published his Annual Report and Accounts for the year 2019-20. It is available to read and download from the Commissioner’s website. Mr Fitzhenry enforces the Freedom of Information (Scotland) Act 2002  (FOISA) as well as the Environmental Information (Scotland) Regulations 2004.  

In publishing, the Commissioner Daren Fitzhenry said: 

“I am publishing my Annual Report at a time dominated by the Covid-19 pandemic.
While freedom of information in Scotland has certainly not been immune from the impact of the pandemic, the importance of the right to information is one clear constant. 

“Inevitably we all have questions about the decisions being made by our governments and public services. Never more so than at a time when those decisions, sadly, may mean the difference between life and death.  

“This is why it is so vital that Scotland’s law ensures everyone has a right to seek information from public authorities and – with only very few, limited exceptions – to receive it.”

Key statistics from the report include:

• 79,300 FOI requests were made to Scottish public bodies during the year. 12.6% of these were for environmental information (an increase from 10.3% in 2018-19)

• 76% of requests to Scottish public authorities resulted in full or partial disclosure of information to the requester (an increase from 75% in 2018-19)

• 251 interventions regarding authority practice improvements were carried out by the Commissioner (compared to 252 in 2018-19 and 234 in 2017-18)

• There were 494 appeals made to the Commissioner (0.6% of total requests made to Scottish public bodies). 75% of appeals were made by members of the public. 

• On average, cases appealed to the Commissioner were closed within 3.4 months

• 23% of valid appeals to the Commissioner related to an authority’s failure to respond

• 67% of the Commissioner’s decisions found wholly or partially in favour of the requester (an increase from 65% in 2018-19)

Please note that this annual report covers the period 1 April 2019 – 31 March 2020.
The Commissioner will publish an initial insights briefing specifically examining the impact of the Covid-19 on FOI in Scotland later in 2020.

Our most popular FOISA course will take place online in November. Click here for details.