Regulatory Action Policy

Today, the Information Commissioner’s Office (“ICO”), the UK data protection authority, released for public comment its draft “Regulatory Action Policy,” a document in which the ICO seeks to set forth its objectives in taking regulatory action, present its new investigatory and enforcement powers, and explain how it aims to use them. The comment period will close on June 28, 2018.

With three weeks remaining until the General Data Protection Regulation (the “GDPR”) (Regulation (EU) 2016/679) takes effect, this draft document provides organizations with a much needed insight into how the ICO plans to proceed in the age of new data protection compliance realities. In addition to the GDPR, the ICO will be enforcing the upcoming update to UK’s national data protection law, the UK Data Protection Act 2018 (the “DPA”), which is still working its way through Parliament, but should be in place by May 25, 2018, as well as other established data protection legislation.

The “Regulatory Action Policy” explains that ICO will have the power to issue “urgent” information notices that will require a response within 24 hours, take notice recipients who fail to comply to court on contempt charges, inspect and assess compliance without notice, administer fines by way of penalty notices, and prosecute criminal offences in court. The ICO’s powers to prosecute failures to provide information and its ability to go to court to request a warrant to search premises will come from the DPA, not GDPR.

The DPA also will permit the ICO to issue “assessment notices” to data controllers and processors to allow the ICO to investigate whether the controller or processor is compliant with data protection legislation. The notice may require the organization to give the ICO access to premises and specified documentation and equipment. An “urgent” assessment notice may require access to non-domestic premises on less than 7 days’ notice, which in effect will allow the ICO to carry out a no-notice inspection. An organization that receives an “urgent” information notice, assessment notice, or enforcement notice may petition the court to overturn the urgency of that notice. Under the DPA, destruction or falsification of information the ICO is pursuing in its notice constitutes a criminal offence. However, similarly to the U.S. evidence spoliation principles, it appears that loss of information through routine operation of automated processes may be a defense to criminal charges.


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