Staff Subject Access Requests – you do not need to take a sledgehammer to crack a nut

I have to deal with Subject Access Requests (SAR) from members of staff across NHS organisations – where you receive one, you generally know they have issues with their employer.

You also know that you are likely to receive a separate Freedom of Information Request (FOI) asking for copies of policies, procedures, certain decision making meetings.

The trouble tends to be that the requests are “weaponised” to try and find as much information as possible and potentially be disruptive which can lead to the requestor getting less information than they expected.

There are two really good books that have been released in the last few months:

Managing Subject Access Requests by Stephen Massey and Catriona Leafe

Freedom of Information by Martin Rosenbaum

Two different authors, two different subjects but similarities in approach.

Requestors need to take a defined and proportionate approach that demonstrates that they are aware of the real impact of any request on an organisation – basically, be nice, be polite and be realistic.

The employer then needs to demonstrate that they understand the legislation, what it requires and can confirm what can be provided – basically do not overthink it, work within the rules and accept that work has been created.

The common themes for SAR and FOI when making a request are:

  • Do not ask for everything unless you really need everything and focus in on what will really help you – that helps the person trying to gain access to what you need (and NHS organisations are generally very bad at record keeping)
  • Recognise that just because your name is in an email chain, that does not mean that the email is about you (but there is case law that says that not including you in email chains whilst you are away for an extended period could be discriminatory but that is employment law, not data protection law)
  • FOI and SAR are applicant blind – it should not matter why you want the information – but it helps if you could apply some context to the request (and to be honest, as everything has to be reviewed prior to release, the reviewer is going to find out what your grievances are)
  • Do not rely on FOI or SAR to support your application to an Employment Tribunal – think ahead and get what you need before making an application
  • If it comes to an appeal, do not use subjective, moral or ethical arguments for why information should be released. This is the law, not a family argument or a debate and appeals tend to be shot down where they become too emotive

The last thing to remember is this basic distinction:

  • SAR is linked to the accuracy of the information about you
  • FOI is linked to the decisions that an organisation has made and the policies in place (a really good test is to ask about the Information Accessibility Standard and how it has been implemented – or not)

Happy to be corrected at any point on any of this.

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