UK ICO Provides Guidance on Processing Sensitive Information

November 19, 2019Alerts

The United Kingdom's Information Commissioner's Office has updated its guidance on Special Category Data (Article 9 General Data Protection Regulation). Key takeaways:

Genetic Data

  • Genetic analysis that includes enough genetic markers to be unique to an individual is personal data and special category genetic data, even if you have removed other names or identifiers. And any genetic test results which are linked to a specific biological sample are usually personal data, even if the results themselves are not unique to the individual, because the sample is by its nature specific to an individual and provides the link back to their specific genetic identity.
  • Where you have anonymized or aggregated partial genetic sequences or genetic test results (e.g. for statistical or research purposes), and they can no longer be linked back to a specific genetic identity, sample or profile; a patient record; or to any other identifier, the data is no longer deemed personal data.

Biometric Data

  • If you process digital photographs of individuals, this is not automatically biometric data even if you use it for identification purposes. It only becomes biometric data if you are using the image data to create an individual digital template or profile, which in turn you use for automated image matching and identification.
  • Biometric data will be special category data in the vast majority of cases.
  • If you use biometrics to learn something about an individual, authenticate their identity, control their access, make a decision about them or treat them differently in any way, you need to comply with Article 9.

Health Data

  • Health data can be about an individual’s past, current or future health status.
  • Special category data includes not only personal data that specifies relevant details, but also personal data revealing or concerning these details. If you can infer relevant information with a reasonable degree of certainty then it’s likely to be special category data even if it’s not a cast-iron certainty. But if it is just a possible inference or an "educated guess," it is not special category data (unless you are specifically processing it to treat someone differently on the basis of that inference) even if that guess turns out to be right.
  • You can often infer an individual’s religion or ethnicity with varying degrees of certainty from names or images. For example, many surnames are associated with a particular ethnicity or religion. However, it is inappropriate to treat all such names as special category data in every instance.
  • If you undertake any form of profiling which infers, for example, ethnicity, beliefs, politics, health risks, sexual orientation or relationship status, you are processing special category data irrespective of the level of statistical confidence. The key question here is not whether the inferences are correct, but whether you are using an inference linked to one of the special categories to influence your activities in any way.
  • If you are concerned that someone might be able to infer special category data even if it is not relevant to your purpose, you may want to identify a condition to cover that possibility to minimize the privacy risks
  • If you think the data carries a risk of inferences that might be considered sensitive or private, even if this falls short of revealing something about one of the special categories with any level of certainty, then you should also carefully consider fairness issues and whether there is anything more you can do to minimize privacy risks.

Legal Basis

  • You must have a GDPR lawful basis to process data under Article 6. However, when processing special category data, you also need an Article 9 condition for processing.
  • If you’re not sure which condition is appropriate, it can be useful to start by considering whether you could reasonably get explicit consent for your processing. However, consent won’t always be appropriate
  • If your purpose is not covered by any of the conditions, and you cannot obtain valid explicit consent, you cannot process the special category data.
  • The only potential exemption from Article 9 is the public interest exemption for journalism, academia, art or literature

Data Protection Impact Assessment (DPIA)

You must carry out a DPIA if you plan to process special category data:

  • on a large scale;
  • to determine access to a product, service, opportunity or benefit; or
  • which includes genetic or biometric data (if in combination with any other criteria in European DPIA guidelines).


  • You should have an appropriate policy document in place: a short document that should outline your compliance measures and retention policies with respect to the data you are processing.
  • This must include your condition for processing the data, how you satisfy a lawful basis for that processing and specific details about whether you have followed your retention and deletion policies – and if not, why not.

1. Conditions for Processing

  • "Explicit consent" is not defined in the GDPR, but you must meet the usual GDPR standard for consent.
  • Explicit consent must:
    • be confirmed in a clear statement (whether oral or written), rather than by any other type of affirmative action
    • specify the nature of the special category data
    •  be separate from any other consents you are seeking

2. Employment, Social Security and Social Protection Law

  • Your purpose must be to comply with employment law, or social security and social protection law. You need to be able to identify the legal obligation or right in question, either by reference to the specific legal provision or else by pointing to an appropriate source of advice or guidance that sets it out clearly.
  • This condition does not cover processing to meet purely contractual employment rights or obligations.

3. Vital Interests

  • Vital interests are intended to cover only interests that are essential for someone’s life. So this condition is very limited in its scope and generally only applies to matters of life and death/emergency medical care.
  • This condition only applies if the individual is physically or legally incapable of giving consent.

4. Not for Profit

You can only rely on this condition if you:

  • are a not-for-profit body
  • are processing special category data as part of your legitimate activities
  • have appropriate safeguards in place
  • do not disclose this data to a third party without the individual’s consent

5. Manifestly Made Public

  • The term "manifestly made public" is not defined by the GDPR. But it clearly assumes a deliberate act by the individual.
  • You need to be confident that it was the individual himself or herself who actively chose to make their special category data public and that this was unmistakably a deliberate act on their part.
  • To be manifestly made public, the data must also be realistically accessible to a member of the general public. The question is not whether it is theoretically in the public domain (e.g. in a publication in a specialist library, or mentioned in court), but whether it is actually publicly available in practice.
  • The question is whether any hypothetical interested member of the public could access this information.
  • Consider some specific questions:
  1. Is the special category data already in the public domain – can a member of the public realistically access it in practice?
  2. Who made the data public?
  3. Did the individual deliberately take the steps that made this special category data public, or was it accidental or unintentional?
  • For accountability purposes, you should keep a record of the source of the data, to help you demonstrate it was manifestly made public by the individual.

6. Legal Claims and Judicial Acts

Legal Claims

You must show that the purpose of the processing is to establish, exercise or defend legal claims. "Legal claims" in this context is not limited to current legal proceedings. It includes processing necessary for:

  • actual or prospective court proceedings;
  • obtaining legal advice; or
  • establishing, exercising or defending legal rights in any other way.

You must be able to justify why processing of this specific data is "necessary" to establish, exercise or defend the legal claim.

Judicial Acts

If you are a court, then you can apply this condition whenever you are processing special category data in your judicial capacity.

7. Substantial Public Interest

On the basis on Union or Member state law.

8. Health or Social Care

  • You can only rely on this condition if the personal data is being processed by (or under the responsibility of) a professional who is subject to an obligation of professional secrecy.
  • Where this condition applies, the individual does not have a right to erasure.

9. Public Health

  • Needs to be set forth in Union or member state law.
  • In order to rely on this condition the processing must be carried out either:
  1. by, or under the responsibility of, a health professional; or
  2. by someone else who in the circumstances owes a legal duty of confidentiality.
  • You must be able to demonstrate that the processing is necessary for reasons of public interest in the area of public health. The term "public interest" is not defined, but you need to point to a benefit to the wider public or society as a whole. — Where this condition applies, the individual does not have a right to erasure.

10. Archiving Research and Statistics

This condition requires you to:

  • demonstrate that the processing is necessary for archiving, research or statistical purposes
  • comply with the safeguards and restrictions set out in Article 89(1) of the GDPR
  • demonstrate that the processing is in the public interest

Not all research is covered by this condition. You need to demonstrate that your research is either scientific or historical in nature, and in the public interest.

Article 89(1) says that you must have appropriate safeguards in place. In practice this means that you must:

  • be able to demonstrate why you cannot use anonymized data
  • consider whether you could use pseudonymization to make it more difficult to link the personal data back to specific individuals
  • be able to demonstrate that the processing is not likely to cause substantial damage or distress to individuals
  • not use the data to take any action or make decisions in relation to the individuals concerned (unless you are carrying out approved medical research as defined in section 19(4) of the DPA 2018)
  • consider other appropriate safeguards and security measures

Appropriate Policy Document

An appropriate policy document is a short document outlining your compliance measures and retention policies for special category data.

It doesn’t have to take any particular form, as long as it briefly outlines:

  • the Schedule 1 condition (or conditions) you are relying on
  • your procedures for complying with each of the principles
  • your retention and deletion policies
  • an indication of the retention period for the specific data

If you process special category data for a number of different purposes you don’t need a separate policy document for each condition or processing activity — one document can cover them all.

You need to retain your appropriate policy document until six months after the date you stop the relevant processing. You must keep it under review. You do not have to publish it, although it is good practice to do so. If the data protection authority asks to see it, you must provide it free of charge.

You also need to include some further details in your general GDPR documentation:

  • how the processing satisfies a lawful basis
  • your condition for processing special category data
  • whether you have followed your retention and deletion policies - and if not, why not

The ICO has developed a template sample appropriate policy document.

Odia Kagan is a partner at Fox Rothschild and chair of the firm’s GDPR Compliance and International Privacy Practice. For assistance with the full range of GDPR compliance issues contact Odia at [email protected] or 215.444.7313.

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