EDPB’s 2024 Coordinated Enforcement Action on the Access Right: What Can You Expect

On February 28, the European Data Protection Board ("EDPB") announced that EU supervisory authorities ("SAs") will undertake a coordinated enforcement action in 2024 regarding data subjects' right of access under the GDPR. For context, the EDPB selects a particular topic each year to serve as the focus for pan-EU coordinated enforcement.

In 2023, regulators focused upon data protection officers' designation and role. And, on January 17, 2024, the EDPB published its report providing an overview of the actions SAs took in the context of the 2023 action. This blog post provides an overview of what you can expect from the coordinated enforcement action in 2024, based on the lessons learned from 2023.

If this year's coordinated enforcement action is similar to last year's, this is what to expect:

• SAs will likely send questionnaires to specific industry sectors or controllers with related data processing activities and assess varying numbers of stakeholders. Organizations can expect to receive questionnaires from SAs using mechanisms comparable to those used in 2023. SAs, for instance, may send questionnaires requesting information from a specific group of organizations representing a particular sector in order to better track their responses (e.g., the banking sector or public entities), or to a broader group of companies that share similar data processing activities in order to get a general view of their compliance status and the challenges they face in addressing data subjects' access requests ("DSARs").
• The questionnaires are likely to contain a wide range of questions about how companies comply with the right of access. Organizations can expect to receive a questionnaire that uses a pre-agreed structure, although some SAs may decide to slightly modify the questionnaire or add certain questions. The questionnaire is likely to have limited space for responses and/or no open-field questions. We expect the questions to be broad enough to capture information on, for example: (i) how organizations inform data subjects about their right of access; (ii) how easy it is for data subjects to exercise their right of access; (iii) what processes organizations have for responding to DSARs; (iv) how organizations ensure they meet the GDPR's deadline for responding to DSARs; (v) how organizations train employees who handle DSARs; (vi) the involvement of DPOs in responding to DSARs; and (vii) situations in which organizations have rejected DSARs. The questionnaire may also ask whether controllers have been asked by data subjects to identify all parties to which controllers have disclosed data (i.e., data recipients) and how controllers have responded to such a request. That is because in 2023 the CJEU ruled that when data subjects specifically request information about data recipients in a DSAR, controllers should identify all data recipients by name, except in very exceptional circumstances where this is impossible, or manifestly unfounded or excessive (see our blog post about case C-154/21).
• Responding to the questionnaire may be on a voluntary or mandatory basis, and may (or may not) lead to enforcement. For some SAs, the coordinated enforcement action may simply be used to understand stakeholders' concerns to develop more useful guidelines and materials on the right of access. Other SAs may use the responses to the questionnaire to instigate enforcement action against respondents. For example, the French CNIL and Dutch AP have indicated that the right of access is one of their enforcement priorities for 2024. This may indicate that they intend to take enforcement actions against companies that, based on the coordinated action, do not appear to be complying with their GDPR obligations regarding DSARs.

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Covington's Data Privacy and Cybersecurity team regularly advises companies on their most challenging compliance issues in the EU and other key markets, including data subject rights. Our team is happy to assist companies with completing SA's questionnaires and any other inquiries related to data privacy and cybersecurity.

(This blog post was written with the contributions of Diane Valat.)