Guardian's Blind Eye

The ICO’s Latest Blunder: Allowing Conflicted Parties to Process SARs

13 August 2024 – Today marks yet another disheartening chapter in my ongoing battle with the Information Commissioner’s Office (ICO) over the mishandling of my Subject Access Request (SAR) to Balliol Property Services (BPS). Following the ICO’s identification of an infringement by BPS, I was optimistic that they would take meaningful steps to enforce my data protection rights under the UK General Data Protection Regulation (UK GDPR). Instead, I have been met with a response that not only fails to address the core issue but also raises serious questions about the ICO’s understanding of conflicts of interest and their implications under the UK GDPR.


The ICO’s Response: A Disconcerting Dismissal

In response to my complaint, the ICO recognised that BPS had breached its obligations by failing to respond to my SAR within the required time frame. However, when I raised concerns about Burnetts Solicitors, who represent BPS in ongoing legal matters against me, being involved in the processing of my SAR, the ICO chose to dismiss these concerns outright. Despite the evident conflict of interest, where Burnetts has a vested interest in protecting BPS, the ICO saw no issue with allowing them to handle my SAR.

This decision is not only baffling but also fundamentally flawed. The ICO’s willingness to overlook such an obvious conflict of interest is a dereliction of its duty to ensure that data protection processes are fair, transparent, and free from undue influence. It sets a dangerous precedent where organisations can enlist the very parties they have legal conflicts with to process SARs, potentially leading to biased or incomplete disclosures.


Misalignment with UK GDPR Principles

The ICO’s stance is deeply troubling when viewed through the lens of the UK GDPR, which is built on principles of fairness, transparency, and accountability. Here’s why the ICO’s response is problematic:

  • Fairness and Transparency: The UK GDPR, as outlined in Article 5(1)(a), requires that personal data be processed lawfully, fairly, and transparently. Involving Burnetts, who are clearly aligned with BPS, in the SAR process violates these principles. How can I trust that the SAR will be processed impartially when the solicitors involved have previously acted against my interests?
  • Conflict of Interest: Although the UK GDPR does not explicitly mention conflicts of interest in SAR processing, Recital 39 emphasises that data controllers must take all reasonable steps to ensure that personal data is processed securely and fairly. The ICO’s failure to address this conflict undermines the integrity of the SAR process, as impartiality is a key component of fairness.
  • Accountability: Article 5(2) of the UK GDPR mandates that data controllers are accountable for their compliance with the regulation. By allowing Burnetts to process my SAR, BPS is effectively bypassing its accountability, creating a scenario where biased decision-making can occur unchecked.

What the ICO Should Have Done

The ICO’s role is to enforce the UK GDPR and protect individual rights. In this case, they should have:

  • Investigated the Conflict of Interest: The ICO should have carefully considered the implications of Burnetts’ involvement in processing the SAR, given their close ties to BPS. They should have ensured that an independent and impartial party handled the SAR, in line with the fairness principle enshrined in the UK GDPR.
  • Ensured Compliance: The ICO should have taken stronger action to ensure that BPS complies with its SAR obligations in a fair and transparent manner, rather than simply accepting BPS’s choice of a conflicted processor. The ICO could have mandated that BPS appoint an independent data protection officer (DPO) or third-party service to handle the SAR.
  • Protected My Rights: Ultimately, the ICO’s responsibility is to protect my rights under the UK GDPR. By ignoring the conflict of interest, they have failed to uphold this duty. The ICO should have intervened to guarantee that my SAR was processed by an impartial entity, thereby ensuring that my data protection rights were fully respected.

The Broader Implications for UK GDPR Enforcement

This latest episode further underscores the ICO’s troubling inconsistency in enforcing the UK GDPR. While they are quick to take action in high-profile cases, they appear far less committed when it comes to smaller, individual complaints. This selective approach not only undermines the principle of equal protection under the law but also emboldens organisations to flout the UK GDPR, knowing that the ICO may turn a blind eye.

According to the ICO’s own data, individual complaints regarding SARs have risen sharply over the past year, with over 40% of all complaints involving concerns about data access rights. Yet, the ICO’s inconsistent responses to these complaints risk eroding public trust in the regulatory framework designed to protect their privacy.


Moving Forward: A Call for Accountability

As I prepare to escalate this issue, both within the ICO and potentially through legal action, I do so not just for myself but for the broader principle of fair and transparent data protection enforcement. The ICO must be held accountable for its failures, and organisations like BPS should not be allowed to manipulate the SAR process to their advantage.

The ICO’s response today is a stark reminder of the need for more rigorous enforcement of the UK GDPR, particularly in cases involving potential conflicts of interest. If the regulator is unwilling or unable to protect individual data rights in such situations, it falls to the courts and the public to demand better.

I encourage anyone facing similar challenges to share their experiences and stand up against inadequate regulatory practices. Together, we can push for a more consistent and effective data protection framework in the UK—one that truly safeguards the personal information of all citizens.



#ICO #UKGDPR #DataProtection #SubjectAccessRequest #PrivacyRights #ConflictOfInterest #UKRegulation #ConsumerRights #LegalProceedings #InconsistentRegulation


References:

  • Barwell, J. (2024) The ICO’s Ineffectiveness in Handling My GDPR Complaint: What Comes Next. 11 August. Available at: Legal Lens (Accessed: 13 August 2024).
  • Information Commissioner’s Office (ICO) (2024) Complaint Case IC-304160-XXXX: Subject Access Request Non-compliance. Received 8 August. Available at: ICO Website (Accessed: 13 August 2024).
  • UK Government (2024) UK General Data Protection Regulation (UK GDPR), Articles 5(1)(a), 5(2), and Recital 39. Available at: Legislation.gov.uk (Accessed: 13 August 2024).

Public Interest Disclosure Statement:

This article is published in the public interest to highlight critical issues within the ICO’s handling of individual UK GDPR complaints. The content aims to inform both the public and professionals about the challenges faced by individuals in enforcing their data protection rights, thereby encouraging a more robust and equitable approach to UK GDPR enforcement.

Disclaimer:

The information provided in this article is based on publicly available sources and is intended for informational purposes only. While every effort has been made to ensure the accuracy of the information, the publisher does not guarantee the completeness or accuracy of the content. The opinions expressed are mine and do not necessarily reflect the views of the publishing platform. Readers are encouraged to consult with appropriate professionals for specific advice regarding data protection, legal, or regulatory matters.

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