03 October 2017

Who's afraid of the GDPR? Data issues for Legacy Officers


GDPR: What it is and when will it happen?

On 25 May 2018, the EU General Data Protection Regulation ('GDPR') will come into force across all EU member states, including the United Kingdom. This new Regulation replaces the current UK Data Protection Act ('DPA') and represents the most significant change to UK data protection law in 20 years.

Headlines have been dominated by the large penalties that the GDPR introduces for the most serious breaches of the law. This is up to €20million or 4% of an organisation's global turnover (whichever is the higher).

Many charities and their legacy teams are therefore asking questions about what the GDPR will mean for them. For example a legacy officer could be impacted if, say, an executor told him or her about the personal circumstances or health condition of an estranged child of the legator and recorded that information on file. The child could contact the charity and request a copy of the data that the charity holds about them (see the information below about subject access).

GDPR: how does it apply?

If your organisation collects or stores any 'personal data' on computer or a filing system, it will almost certainly be processing that personal data and be subject to the data protection law under the DPR and the GDPR.

The GDPR reforms and updates current data protection law in the UK. However, many of the DPA's existing fundamental concepts will remain the same and if your organisation is already complying with the DPA's data protection principles then it should be well on its way to being 'GDPR compliant'.

The GDPR regulates the processing of personal data. 'Personal data' means any data that relates to a living individual who can be directly or indirectly identified from that data and any other data that the organisation may hold about them, in particular by reference to an identifier such as a name, contact details or one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person. [Note: the reference to a 'living individual' in the definition of 'personal data' means that information relating to a deceased person would not technically be personal data although it may be mixed on file with information about other living family members or carers which is personal data about them. Also, where medical information is sought, other laws like the Access to Health Records Act 1990, could still permit a personal representative (PR) to access a deceased's health records.

In summary, how does the GDPR apply to my organisation?

Like the DPA, the GDPR effectively has two main aspects:

Organisational Obligations: Legal responsibilities that organisations (called 'data controllers' or 'controllers' under GDPR) must follow when they collect and process any personal data. These are referred to as the 'Data Protection Principles' in the UK. There are 8 of these at present (eg the first data protection principle that data must be processed on a 'fair and lawful' basis). The 8 Principles remain largely the same, but with the addition if a new 'Accountability Principle', meaning that your organisation needs to demonstrate that it is complying with the Principles; and
Individual Rights: Gives the individual whose data is being handled (called the 'data subject') certain rights regarding their personal data (and how it is used). This includes a right to object, to request correction of inaccurate or erasure of obsolete data (called the 'right to be forgotten').

Issues for Legacy Officers

Some coverage of the GDPR has perhaps overstated as to how far the law is changing. While there are some new features, the new law does not completely re-write the DPA but rather builds on the rules.

However what is true is, that with the stakes for non-compliance becoming much higher, data protection should no longer be seen as an obscure regulatory issue that perhaps only the legal or IT team needs to be concerned with to an issue that all parts of your organisation, including the legacy team, needs to be fully aware of.

With a new 'Accountability' Principle being introduced under the GDPR, organisations will now more than ever need to 'demonstrate' compliance with GDPR Data Protection Principles. This means having the internal documentation in place to show that your organisation has considered data protection principles as part of its legacy administration function.

A few particular issues for legacy officers to consider are: a). fair, lawful and transparent processing; b). data retention; and c). subject access rights. None of these are particularly new as legal issues but the burden on organisations to comply and show that they are doing so will significantly increase under the GDPR. Looking at these:

Fair Lawful and Transparent processing:

The First Data Protection Principle under the DPA requires all organisations that process data to only do so on a 'fair and lawful' basis. This First Principle continues under the GDPR with the expanded requirement of data being processed 'lawfully, fairly and in a transparent manner' in relation to the data subject. This does not necessary alter the basic principle but the implications for legacy related personal data are:

- that such data should have been collected in a manner that meets the lawfulness requirements under the GDPR and meets at least one of the pre-conditions for processing (like the DPA);

- pre-conditions for lawful processing we think that are most likely to apply in this context:

  • the individual has given their demonstrable consent to the processing, that was specific, freely given, informed and unambiguous (eg usually where data is collected from an individual, who has opted in to having their data processed in the context of legacy giving – any data capture form being in an intelligible and easily accessible form, using clear and plain language);
  • processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract;
  • processing is necessary for compliance with a legal obligation to which the controller is subject;
  • processing is necessary for the purposes of the 'legitimate interests' pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child; and
  • while 'legitimate interests' can appear an appealing ground to rely on as opposed to obtaining individual opt-in consent as a basis of processing, an organisation will need to clearly document the reasons for their conclusion that its own legitimate interests in processing a personal data does not override the privacy rights of relevant individual data subjects. One potential way that this may be done is through the carrying out of a data privacy impact assessment;

The other aspect of principle is being 'fair and transparent' with individuals whose data is being collected. This means that the individual needs to know how and for what purposes their data will be used, if it is not obvious to them. Usually this would be done by means of a privacy notice given at the time when data is collected. GDPR increases the types of information that needs to be set out on these privacy notices but also requires that privacy notices are concise, transparent, intelligible and written in clear and plain language. The ICO also refers to data being used in accordance with an individual's reasonable expectations, meaning that they at least are aware of what data you may hold about them and what it is being used for (the upshot is that if your legal team is using data, it should have been collected on a lawful basis and in accordance with an individual expectations).

Data Retention

Like the current DPA, the GDPR repeats the Principle that personal data should be held by a controller organisation for 'no longer than is necessary' for the purpose it was collected and was being processed, subject to some limited exemptions for data being stored for archiving purposes in the public interest, scientific or historical research purposes (where there is no impact on the individual). ('Storage Limitation Principle').

Like the DPA, the GDPR gives no further guidance on how long 'necessary' would be in any particular context. However, GDPR now further emphasises this Storage Limitation Principle by requiring the following:

  • the Accountability Principle, as noted above, means you would need to demonstrate how you are complying with this Storage Limitation Principle;
  • in privacy notices and in responding to subject access requests (see below) organisations now need to provide information to individuals about their relevant data retention periods (or if not possible to give a specific period, the criteria used to set such a period); and
  • for organisations of 250 people of more, there is a new requirement to keep a record of data processing activities under GPPR including the purpose of the processing; description of the categories of data subjects and of the categories of personal data and the envisaged time limits for erasure of the different categories of data.

Together, these requirements point to each organisation now needing to have a clear data retention and disposal policy what determines how long data is retained for particular purposes, including data on potential legacy donors. This may be a self-standing policy, or may be part of a wider data retention policy that looks at an organisation's data retention periods across a number of its operational areas.

Data retention can clearly affect a legacy team who have may have collected a potential legacy giver's details a considerable time ago in response to an expression of interest in leaving a legacy. The longer personal data is retained, arguably the more justification there will need to be for holding on to that individual's data.

As noted above, the GDPR does not set out any specific minimum or maximum periods for retaining personal data. However, we suggest that in practice you will need to:

  • review the length of time you keep personal data;
  • consider the purpose or purposes you hold the information for in deciding whether (and for how long) to retain it;
  • securely delete information that is no longer needed for this purpose or these purposes; and
  • update, archive or securely delete information if it goes out of date.

How long you should keep personal data depends on the purpose for which it was obtained and its nature. Under its guidance in relation to the DPA, the ICO states that where personal data is held by an organisation for more than one purpose, there is no need to delete the data while it is still needed for any of those purposes. However, personal data should not be kept indefinitely 'just in case', or if there is only a small possibility that it will be used.

In relation to legacies and fundraising, although a donor may have been a supporter or expressed an interest in leaving a legacy, the active relationship that a charity with that supporter may have ended some time ago, which means it may not be above to be used for active fundraising without other justification. However, a key justification for holding on to a potential testator's details is that the data may be of critical importance as providing a). positive identity of who the deceased was; and b). evidence of their intentions – particularly in the event of a statutory will application and/or a probate challenge by a family member of other beneficiary and/or a claim under the Inheritance (Provision for Family and Dependants) Act 1975 ('1975 Act') that could arise many years after the will was originally drafted. In the Court of Appeal decision in Illot v Mitson [2015] EWCA Civ 797, Lady Justice Arden noted that 'for the Charities, any money from this estate is a windfall… The only beneficiaries are the Charities, who can have had no expectation either: the deceased had no connection with the Charities.' This suggested that, when a legacy to a charity is contested, under a 1975 Act claim or otherwise, the Courts may look to the (lack of) connection between the charity and the donor. The Supreme Court made clear that the charity should not be penalised for want of connection. However, a record of contact is still likely to assist and that is certainly our experience in the Court of Protection. So, having appropriate records of the donor's pattern of giving to, or other involvement with, the charity could be important and holding on to such data would be justified.

In its guidance on the DPA the ICO recognises the significance of surrounding circumstances as justifying the continued holding of data even where a relationship between an organisation and individual has ended (for example, a supporter has stopped responding to mail sent by the organisation). The ICO specifically states in its guidance that 'in some cases, you may need to keep personal data so you can defend possible future legal claims'.

Whilst advice specific to your organisation in particular circumstances should always be sought, and further guidance may be issued under GDPR, one suggestion may be to keep such records in a separate archived database which cannot be used for active or live fundraising and is no longer retained after the relevant limitation periods have expired.

'Subject Access' Rights

One of the key rights that a legacy officer (or your organisation) is likely to encounter is the 'data subject access right' (sometimes referred to as a 'DSAR' or 'SAR').

This right allows any individual data subject (or their authorised representative, such as a solicitor) to serve a notice on the data controller organisation asking such organisation to a). confirm that they process personal data about the individual; b). provide a copy of such personal data; and c). provide supplemental information, such as what the organisation uses the data for and who else may be receiving the data.

The use of data subject access requests has become a controversial area of the DPA, since many individuals (and their advisers) increasingly use SARs as a tool in litigation or when they are looking at taking legal action. Many charities find themselves the subjects of SARs. Motive is irrelevant and SARs can be used as 'fishing exercises' to get evidence without having to go through the normal litigation 'discovery' procedure. This is likely to continue under the GDPR.

The problems that many charities and other organisations face are SARs are very easy to serve and cannot be charged for under the GDPR although you can still ask for an individual to verify their identity. Organisations charge for dealing with a 'manifestly unfounded or excessive' SAR although it is not clear what this means. It is most likely to apply where someone if making repeated requests for the same information.

GDPR also shortens the timescale for responding to an SAR from 40 days to one month and individuals can make very wide requests, asking for any information you hold about them. The timescale by a further two months in the case of 'complex' requests although we expect this to be narrowly applied. The exemptions allowing an organisation to refuse a request or hold back information in certain situations are very narrow although in the context of legacies of the key exemptions is where information is subject to 'legally privilege' under English or Scots law (for example, advice from a solicitor could be withheld).

Relevant considerations when dealing with SARs

Record keeping

Ensure that your process for recording of personal data on file is controlled. Remind staff who record data on file about the possibility of SARs. In particular staff should not feel tempted to put their own personal outbursts about individuals – if not relevant – in attendance notes or internal emails. Once that data is recorded on file, the information (even if just an opinion) could be regarded as personal data and becomes potentially disclosable.

Data disposal

While you should never deliberately dispose of personal data to avoid an SAR (this is likely to become a criminal offence under the new UK Data Protection Act that will be coming into force alongside the GDPR regime), you should consider data retention periods and procedure for making sure that irrelevant or obsolete data is disposed of on a regular basis when no longer needed on file as an SAR only applies to such data you hold at the time of the request being made.

A consistent policy for dealing with SARs

Make sure they are dealt with promptly when they come in and are sent to the appropriate contact within your organisation together with background information they may need to assess the request. Follow preliminary requirements about verifying identity of the requestor or making sure that anyone acting on behalf of another has authority to make an SAR. Ensure that you have available support from the IT team to help you locate data and seek assistance from the legal team if you have any doubts about what to disclose. Do not ignore a request.

Get ready for GDPR

GDPR introduces tighter time limits for dealing with SARs, usually you will have to respond within one month (extendible by two months for 'complex' or 'numerous' requests). Under the GDPR, extra supplemental information also has to be provided to requesters alongside their personal data than is currently the case under the DPA. This includes, where possible, details of data retention periods and requesters' rights to request data rectification or erasure or to object to processing activities, as well as their right to lodge a complaint with the ICO. We expect that more guidance about these rules come from the ICO.

What do we do now?

While not being quite as cataclysmic as some commentators suggest, GDPR compliance is undoubtedly a significant risk and compliance issue for many charities. All data processing activities should be now be reviewed and documentation put in place to demonstrate compliance in light of new accountability requirements. While much recent debate about charity data protection compliance has focused on fundraising, charities should take a joined up approach to compliance. How personal data is collected, used and retained by the legacy team should be on the agenda of any organisation's internal audit and review list.

For more information in the run up to the GDPR coming into force next year, we suggest you keep an eye on the ICO's website for the latest guidance. See https://ico.org.uk/for-organisations/resources-and-support/.

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