August 21, 2018 | Javier Ruiz

The right of access in GDPR: What are the debates?

There is much debate about the right of access in GDPR but many of them are yet to be discussed widely outside of academia. Here we discuss some of those debates including around subject access requests and privacy protections.


This blogpost is a small section of a much larger research report Debates, awareness, and projects about GDPR and data protection. The report complements the launch of the Digital Rights Finder tool delivered by Projects by IF and Open Rights Group. Here we highlight some of the most interesting and important debates around GDPR (General Data Protection Regulation).


The right of access to personal information, codified in Article 15 of GDPR, is one of the key elements of the European data protection framework, enabling the exercise of other rights and providing for the fundamental “right to data”. This right is set to expand, as GDPR removes several practical barriers to its exercise, such as the payment of fees. This new situation presents some potential challenges, particularly for organisations implementing automated tools to support the exercise of the right.

Third parties

The use of third parties for subject access requests (SARs) is fairly common, for example solicitors acting on behalf of their clients. The removal of the associated fees in GDPR will almost certainly trigger a huge increase in the use of bulk third party SARs as part of a growing contestation of data practices.

Many of the tools we discuss in the report facilitate SARs in ways that do not require the third party to make the request. For example, by creating templates or pre-populated emails that are sent by the data subject from their own email client. In these cases, there is no real third party, although the facilitators will bear some responsibility if the texts they provide are inaccurate or somehow lead to the request to fail.

In other cases, the intermediary will communicate directly with the organisation holding the data. This is perfectly admissible and the ICO has provided guidance on the matter that essentially says that it is the responsibility of the third party to demonstrate there are entitled to act on behalf of the data subject. The ICO also says that if a data controller is concerned that the subject may not fully understand the implications of sharing the data with a third party they can send the data to the subject directly.

Organisations carrying out SARs will need to ensure they document their entitlement and that the people on whose behalf they act are fully aware of the implications, including what these organisations may want to do with the data. In some cases these third parties will want to analyse the responses for research or other purposes, or the SARs may be part of some broader complaint or legal action. This will create a new set of data protection obligations for the third party.

SARs involving children require particular care, as in principle the child should be the recipient of the response if he/she is mature enough – which can be complicated to assess.

Coordination of subject access requests

There are many projects that attempt to coordinate subject access requests targeting a company or a sector. There are concerns among some privacy activists that this could be used by some data controllers to reject the requests as excessive or manifestly unfounded, or attempt to charge a fee.

In principle each request should be considered independently, and the organisation will have to demonstrate they grounds for rejection. Batch requests are fairly common and should not be considered excessive.

The debate centres on whether a company can try to reject a coordinated SAR campaign as unfounded if they can argue that the individuals are using the SARs as a punitive tool or for reasons unrelated to data protection, for example in order to reverse engineer a database.

Recital 63 GDPR states that the right of access is there “in order to be aware of, and verify, the lawfulness of the processing”, which could be understood in fairly narrow terms of data protection. However, Art 15 GDPR simply states that individuals have the right to obtain information without any consideration as to the purposes. Given that recitals are not legally binding, it seems that there are no strong grounds for such rejection, but national courts may take a different view.

Repeated requests by the same person are a different matter, and may be considered excessive more easily if not enough time has passed or it is unlikely that enough has changed to deserve another request.

Privacy protections that hinder access

One potential pitfall and controversial topic around the right of access is the extent to which privacy protecting practices may hinder the exercise of this and other data rights. Companies increasingly use pseudonymisation, data compartmentalisation and other technical measures that can make it harder to exploit the data if there were any security breaches. In some cases not even company employees can fully access the data and link it to a named individual.

These practices generally fall under the rubric of privacy – or data protection – by design, which is part of GDPR and something that normally is perceived in positive terms. The problems arise when the person trying to access the data is not a hostile third party, but the person whose data was processed in the first place.

Michael Veale, Reuben Binns and Jef Ausloos have argued that these privacy by design techniques focus exclusively on protecting confidentiality and the identification of individuals, but the data is still potentially re-identifiable by third parties with enough capabilities. At the same time the added difficulties in identifying specific individuals make it very difficult to exercise data subject rights, such as access, erasure and objection.

The authors document their own research with two case studies. In one case involving wifi data collected by TfL in the London Underground and used to track movements, subject access requests could not work because the data had been masked using cryptographic techniques. However, it has been demonstrated that location traces are so unique that re-identification is very easy.

Michael Veale, Reuben Binns and Jef Ausloos also attempted to obtain recordings from the personal assistant provided in Apple products, Siri. Apple said they were unable to provide the recordings they hold because these cannot be linked to the individual, as they have different specific identifiers and they have not retrieval mechanisms. The authors made various proposals for how information systems could be engineered to improve rights while preserving privacy and who to manage any trade offs involved.

A similar case has been documented by Paul Olivier Dehaye, who asked Facebook for certain information held on him and was rejected because the data in question was kept in backup storage and was not accessible.

The above are only some of the possible points of contention around the right of access to personal data. Once GDPR sinks in we will have a better understanding of whether these issues become widespread obstacles to the exercise of the right, or whether new issues appear.