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When does a private investigator need to comply with a subject access request?

When does a private investigator need to comply with a subject access request?

The High Court case of Gurieva & Anor v Community Safety Development (UK) Ltd, heard by Mr Justice Warby, dealt with the obligations of the defendant private investigator (as data controller) to comply with a data subject access request made by a couple who were the focus of the defendant’s investigations.

This dispute is part of a larger clash concerning a Russian company called OJSC PhosAgro (PhosAgro), a producer of fertilisers. Since 2011 PhosAgro has been listed on the London Stock Exchange.

The parties and the claim

The defendant, Community Safety Development (UK) Ltd (CSD) (a London-based company offering security and investigative services), was engaged by its client Mr Gorbachev (a former board member of PhosAgro) to make enquiries into criminal, regulatory and/or civil liability for alleged fraudulent statements or omissions made in the prospectus for the 2011 flotation of PhosAgro.

The first claimant, Mr Guriev, was the Deputy Chairman of PhosAgro, who brought this claim together with his wife, Mrs Gurieva. Both had beneficial interests in PhosAgro.

In looking into the claimants and their business affairs and interests, CSD contacted the couple and their solicitors on a number of occasions with questions for Mr Guriev. The claimants characterised at least one letter in particular as “threatening”, although this was denied by the defendant. The court would later note that CSD’s client (Mr Gorbachev) was engaged in an “aggressive and intimidating litigation PR strategy” which involved the issue of false information, including by way of a press release which suggested that Mr Guriev was subject to a criminal proceedings in Cyprus instigated by the Cyprus authorities – when in fact the proceedings were a private prosecution brought by Mr Gorbachev himself, alleging that he was defrauded of a stake in PhosAgro.

A data subject’s rights

The right to subject access is created by section 7 of the Data Protection Act 1998 (DPA). The right is used by individuals who wish to see a copy of the information held about them. Upon the data subject making a written SAR to a data controller, and paying the requisite fee, a data subject is entitled to be:

  1. told whether any of their personal data is being processed;
  2. given a description of the personal data, the reasons it is being processed, and whether it will be given to any other organisations or people;
  3. given a copy of the information comprising the data; and
  4. given details of the source of the data (where this is available).

In this case it was not in dispute that CSD was a data controller and was processing personal data of each claimant.

The subject access request

The couple made a formal written subject access request (SAR) to CSD under section 7 DPA. CSD did not provide the requested information.

The claimants then brought a claim for:

  1. a declaration that CSD had failed to comply with its subject access duties under section 7 of the DPA; and
  2. an order under section 7(9) of the DPA requiring CSD to comply with those duties.

In response, CSD sought to rely on certain exemptions in order to excuse its non-compliance with section 7 of the DPA.

Exemptions from the subject access right

Two exemptions in particular were argued by the defendant in this case, which relate to personal data:

  1. processed for the purposes of the prevention or detection of crime or the apprehension or prosecution of offenders under section 29(1) of the DPA (the crime exemption); and
  2. covered by legal professional privilege under paragraph 10 of Schedule 7 (the privilege exemption).

Questions for the court…

  • Validity of the SAR: Did the claimants make a valid SAR? and if so…
  • Exemptions: Were the personal data being processed at the time of the SAR exempt from the subject access provisions under the DPA by virtue of: (a) the crime exemption; and/or (b) the privilege exemption? and if not…
  • Discretion of the court: Should the court’s discretion be exercised so as to require compliance by the defendant with the subject access duties?

Validity of the SAR

Section 7(3) of the DPA allows a data controller to require proof of identity before complying with a SAR if the data controller “reasonably requires further information in order to satisfy himself” as to identity. The defendant claimed to require further proof as to the claimants’ identity.

The court made fairly light work of this argument: There was never any proper basis for questioning the SAR’s validity. The claimants’ identity was well known to the defendant who had investigated and contacted them previously.

Exemptions

The crime exemption

Section 29 of the DPA states that “personal data processed for any of the following purposes – (a) the prevention or detection of crime, [or] (b) the apprehension or prosecution of offenders […], are exempt from […] section 7 in any case to the extent to which the application of those provisions to the data would be likely to prejudice any of the matters mentioned in this subsection.”

It was for CSD, in asserting the exemption, to show that their case fell within the exemption.

The court noted that there were three different kinds of investigation that were relevant to the PhosAgro saga, namely: civil, regulatory and criminal. However, the main purpose of the investigation by CSD was the pursuit of civil remedies. Although it was accepted that it was likely that some of the personal data held by CSD relating to the claimants were held and had been processed for the purposes of detecting or prosecuting crime, the court was not persuaded that all the personal data held in relation to the claimants had been processed for those purposes. There was no evidence that CSD was involved in crime prevention or the apprehension of offenders.

The court offered some guidance to data controllers by reference to case law and the Information Commissioner’s Office.

In principle, “a criminal investigator or prosecutor which is a private person or body would appear to have no lesser right to exemption than a public body processing data for the same purposes”.

In terms of the likelihood of prejudice to proceedings, a data controller is required to examine:

  1. what disclosure would reveal;
  2. how the revelation would affect the proceedings; and
  3. whether the effect would have a “weighty and significant” chance of prejudicing the public interest in the investigation or prosecution, whilst focussing on the specifics and not generalities.

Any interference with the subject’s access rights must be proportionate to the gravity of the threat to the public interest. A data controller is required to adopt “selective and targeted approach to non-disclosure”. The court is then required to make a finding of fact based on those circumstances.

The defendant seemed to push a further policy argument on behalf of its business interests and the work of private investigators generally by suggesting that disclosure in the circumstances would “wholly undermine the work which CSD, and other similar organisations, carry out”, although this was not accepted by the court.

The defendant failed to show in relation to “any, let alone all” the personal data that its compliance with the access requirement would cause prejudice to any relevant criminal and/or civil proceedings (be they issued and/or in contemplation). Although the defendant had argued that disclosure “would allow the claimants a tactical advantage” in relation to the ongoing and any contemplated proceedings, this did not amount to prejudice.

When all was said and done, the court was unwilling to grant what would have amounted to a blanket exemption from section 7 for organisations such as the defendant, or for criminal investigators, since such an approach was wrong in principle.

The privilege exemption

Paragraph 10 of Schedule 7 to the DPA states as follows: “Personal data are exempt from the subject information provisions if the data consist of information in respect of which a claim to legal professional privilege […] could be maintained in legal proceedings.”

As with the crime exemption above, the onus lay on the data controller CSD to prove that the privilege exemption applied.

Mr Justice Warby quoted the seminal case on privilege, Three Rivers District Council v Governor and Co of the Bank of England: “communications between parties or their solicitors and third parties for the purpose of obtaining information or advice in connection with existing or contemplated litigation are privileged, but only when the following conditions are satisfied: (a) litigation must be in progress or in contemplation; (b) the communications must have been made for the sole or dominant purpose of conducting that litigation; (c) the litigation must be adversarial, not investigative or inquisitorial.”

Yes, there were criminal proceedings in progress in this case, as well as potential civil proceedings contemplated, and the claimants did not dispute that some personal data being held and processed by CSD may have been covered by litigation privilege. But, the couple argued that there was no way that all the personal data were so protected. The court agreed.

As with the crime exemption, the court refused to grant a blanket exemption for what may be a substantial quantity of data. Ultimately, CSD’s arguments fell down on the following grounds:

  1. CSD had not attempted to provide the kind of detail required in order to uphold a claim to privilege;
  2. CSD had made no attempt to analyse which of the personal data it held/processed were covered by litigation privilege and it was not disproportionate to do so; and
  3. it was unlikely that all the personal data held would have attracted privilege (and indeed CSD acknowledged as much).

Discretion of the court

The court declined to take up the defendant’s invitation to exercise discretion against the claimants on the grounds of abuse of process. The SAR, so said the defendant, represented a misuse of the information rights conferred by the DPA for the purpose of gaining an illegitimate procedural advantage in the Cyprus private prosecution, but the court disagreed.

The defendant also unsuccessfully pushed for the court’s exercise of its discretion against the claimant due to the scale of the data in question and (the alleged difficulties of compliance) and because it would be disproportionate to require the defendant to seek legal advice on the exemptions in respect of each and every page it holds.

The court had no interest in stepping into the shoes of the defendant as data controller in order to determine what information should or should not be provided. To do so would make the court the “primary decision-maker” in place of the data controller, which was inappropriate. Rather, the court’s function was to review the data controller’s conduct and processes, including the logic of its decision-making.

Judgment

The claimants’ SAR was valid. There was never any proper basis for questioning its validity. CSD’s failure to disclose any personal data at all represented a breach of the claimants’ subject access rights.

The personal data held by CSD that related to the claimants may have included some that was protected by the crime exemption, and some that was protected by litigation privilege, but it was not proven that all of it was so protected. CSD had not carried out the necessary analysis and it would be wrong for the court to carry out the analysis on CSD’s behalf.

Enforcement was not disproportionate. The SAR or the proceedings did not represent an abuse of the claimant’s rights or an abuse of process.

Accordingly, the court made the appropriate declaration and order sought in favour of the claimants.

Finally…

The court stated that the first step now was for CSD to carry out its obligations under the DPA as ordered. Mr Justice Warby did, however, accept that “it is possible, as both sides recognised that there will be further disputes after that has been done. If there are, then the court may decide to inspect the data itself at a later date”.

In the meantime, this case offers some useful guidance for data controllers in responding to subject access requests.

By Adam Betts

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