UK data watchdog slaps Ministry of Justice with Enforcement Notice for breaking GDPR law

ICO threatens £17.5m fine over late processing of subject access requests

The UK's data watchdog has issued the Ministry of Justice with an Enforcement Order [PDF] after the government department broke data protection laws by failing to process thousands of subject access requests (SARs) without undue delay.

The Information Commissioner's Office (ICO) said it was made aware of the backlog by the MoJ – the data controller – in January 2019 and spoke to the ministry over the course of the year, mulling potential action. Then the pandemic hit, leading to a change in the ICO's approach to regulatory action, and it paused the probe.

By October 2020, the ICO asked for an update on the number of outstanding SARs, but the MoJ said it too was struggling under the COVID-19 outbreak and had sought to prioritise requests that were "urgent" due to legal proceedings like immigration hearings or police investigations.

Between March and mid-April last year, the MoJ told the ICO it had 5,956 SARs that it had only partially responded to, including 372 that were made in 2018. In a further update in May 2021, the number of SARs only partially responded to had climbed to 6,398. The MoJ informed the ICO that full service for SARs would resume in October notwithstanding any further unforeseen restrictions.

The number of overdue SARs had risen yet again by August to 7,752, with 25 requests that received no response and 7,728 which received a partial response. The MoJ told the ICO that 960 SARs considered "out of time" prior to the pandemic would be responded to in full by the close of May this year.

The MoJ told the ICO, as quoted in the Enforcement Notice, that there were other routes for people to find out information held on them, and of course "they could submit a further SAR after the pandemic passed."

Despite the backlog, the MoJ told the data regulator it received 34 complaints from folk that had requested data held on them but only got a partial or no response.

The MoJ told the ICO it was reliant on the provision of manual and electronic information but operational capacity was limited by COVID-19 restrictions, something the ICO acknowledged, saying the MoJ had tried to comply with its statutory duties with regard to SARs.

"However," the ICO said in its Enforcement Notice, "the substantial number of subject access requests which remain outstanding and which are out of time for compliance is a cause of significant concern for the Commissioner."

"These concerns demonstrate that the controller is currently failing to adhere to its obligations in respect of the information rights of the data subjects for whom it processes data. Previous meetings and correspondence between the controller and Commissioner have proven largely ineffective in reducing the number of outstanding subject access requests."

As such, the MoJ "contravened" Chapter 3, Article 15 of the EU and UK GDPR, and section 45 of the Data Protection Act because it failed to inform the relevant data subjects "without undue delay" whether their personal data was being processed by the MoJ or on behalf of the MoJ and if so, to provide access to it in an intelligible form.

The ICO determined the shortfall in responses to SARs was "likely" to cause "damage or distress" to individuals trying to ascertain what information is held on them and were "unable to effectively exercise the various other rights statutorily afforded to a data subject."

The Enforcement Notice was considered to be a "proportionate regulatory step to bring the controller into compliance," it added.

The MoJ should now take steps to comply with the legislation, devise a recovery plan and better inform people of any delays to processing SARs, the ICO said. Failure to comply with the Notice may result in a penalty notice of up to £17.5m or 4 per cent of turnover, "whichever is higher."

The MoJ has 28 days from dispatch of the Enforcement Notice – yesterday – to lodge an appeal.

A spokesperson for the MoJ sent us a statement: "We take our responsibilities seriously and have set out an action plan to clear the backlog."

Neil Brown, veteran tech lawyer and boss of decoded.legal, told us the ICO was sympathetic to the challenges posed by the pandemic. However, he added: "It has clearly taken a dim view of the MoJ's large scale non-compliance. I suspect its assertion that people could always 'submit a further SAR after the pandemic passed' is not the approach the ICO would expect."

"The right of access to personal data undergoing processing is an important right. It's the only tool available to data subjects to check up on what an organisation is doing with their data, and to verify that what they have said in a privacy notice is correct," he said.

"The Enforcement Notice is a legally binding obligation to do better," Brown added. "Whether the MoJ should have needed a reminder to comply with the law is perhaps a different matter." ®

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