The first GDPR fine issued by the Information Commissioner’s Office (ICO) has been reduced by two thirds on appeal.
In December 2019, Doorstep Dispensaree Ltd, a company which supplies medicines to customers and care homes, was the subject of a Monetary Penalty Notice of £275,000 for failing to ensure the security of Special Category Data. Following an investigation, the ICO ruled that the company had left approximately 500,000 documents in unlocked containers at the back of its premises in Edgware. The ICO launched its investigation after it was alerted by the Medicines and Healthcare Products Regulatory Agency, which was carrying out its own separate enquiry into the company.
The unsecured documents included names, addresses, dates of birth, NHS numbers, medical information and prescriptions belonging to an unknown number of people.
The ICO held that this gave rise to infringements of GDPR’s security and data retention obligations. It also issued an Enforcement Notice after finding, amongst other things, that the company’s privacy notices and internal policies were not up to scratch.
On appeal, the First Tier Tribunal (Information Rights) ruled that the original fine of £275,000 should be reduced to £92,000. It concluded that 73,719 documents had been seized by the MHRA, and not approximately 500,000 as the ICO had estimated. She also held that 12,491 of those documents contained personal data and 53,871 contained Special Category Data.
A key learning point from this appeal is that data controllers cannot be absolved of responsibility for personal data simply because data processors breach contractual terms around security. The company argued that, by virtue of Article 28(1) of GDPR, its data destruction company (JPL) had become the data controller of the offending data because it was processing the data otherwise than in accordance with their instructions. In support of this argument it relied on its contractual arrangement with JPL, under which JPL was only authorised to destroy personal data in relation to DDL- sourced excess medication and equipment and must do so securely and in good time.
The judge said:
“The issue of whether a processor arrogated the role of controller in this context must be considered by reference to the Article 5(2) accountability principle. This provides the controller with retained responsibility for ensuring compliance with the Article 5(1) data processing principles, including through the provision of comprehensive data processing policies. Although it is possible that a tipping point may be reached whereby the processor’s departure from the agreed policies becomes an arrogation of the controller’s role, I am satisfied that this does not apply to the facts of this case.”
This case shows the importance of data controllers keeping a close eye on data processors especially where they have access to or are required to destroy or store sensitive data. Merely relying on the data processor contract is not enough to avoid ICO enforcement.
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