For a number of years many companies have been forced to take part in a game. The rules have been rather unclear, but it has most often been played when disputes take place with company employees. The typical scenario is that an employee or ex-employee makes a subject access request under Section 7 of the Data Protection Act (DPA) 1998 for ‘personal data’ held by the company, paying a fee of £10. He then diarises 40 days forward, by which time the individual insists on receiving copies of all documents relating to him or her or in which he or she is named or described, with threats to otherwise report any failures on the part of the company to the Information Commissioner. Often the game also involves the fact that the employee has a complaint against the employer and is seeking information to fuel a future High Court or Employment Tribunal claim.
One of the real issues hiding behind the game is the difference between a Section 7 DPA subject access request and rights of disclosure in litigation. Disclosure in litigation demands that the parties disclose documents that are relevant to the issues and either supportive of or damaging to the party’s case. As with any application for pre-action discovery, relevance is the key. A subject access request can, however, potentially throw up a huge amount of information and documents that are not necessarily relevant to proceedings.
