Adapted from: The Irish Data Protection Commissioner

The UK GDPR does not prescribe the exact process for carrying out a DPIA beyond the minimum features outlined above, allowing for flexibility and scalability in line with your organisation’s needs. Although there is no one prescribed approach to take, the following steps can guide you through the process:

1. Identifying whether a DPIA is required.
2. Defining the characteristics of the project to enable an assessment of the risks to take place.
3. Identifying data protection and related risks.
4. Identifying data protection solutions to reduce or eliminate the risks.
5. Signing off on the outcomes of the DPIA.
6. Integrating data protection solutions into the project.

1. Identifying whether a DPIA is required

You can use the steps described in the above section “How do I know if a DPIA is required” to assess if you need to perform a DPIA. This should take place as early as practicable in the lifecycle of the project. You will also need to identify the resources needed, the individuals who will be involved, and the timeframe of the DPIA process.

As the nature and operational implications for data privacy of a project may not be apparent at an early stage in the planning, the DPIA may need to be an ongoing process and may need to be reviewed or repeated as the project moves forward.

2. Describing the information flows

At an early point in the DPIA project, you should identify how it is intended to collect, store, use and delete personal information as part of the project. This exercise should also identify what kinds of information will be used as part of the project and who will have access to the information.

The aim of this step is to get an early understanding of how the information will be used as part of a project at each step along the process. This is crucial to being able to recognise the data privacy risks which may be posed by a project and to identifying what means might be used to mitigate those risks.

You should consider if any new personal information will be generated by the project, and include it in your record of this stage. For example, a project involving the processing of psychometric tests might take one type of personal information (the answers to psychometric test questions) and process it to another (a psychometric profile). This new type of personal information is different in character, and so recording it separately in your map of information flows will help to ensure that its special characteristics are taken account of later in the DPIA process.

This part of the DPIA will often mirror other elements of your project design process, such as a general scoping exercise to identify how the project will be carried out and can be integrated with such a scoping exercise. Paying attention in the design of a project to how information will be used as part of the project may also yield efficiency benefits for your organisation by assisting you in streamlining processes for handling information.

At this stage of the DPIA process, you should consult with internal stakeholders with a view to identifying the technical aspects of information collection, storage and processing, and how the different elements of the project will fit together in operation. You may also want to consult with external partners, who may be engaged by your organisation as a data processor, or to whom information might be disclosed as part of a project.

This exercise should be documented using whatever means are most suitable for your organisation and the project concerned. Using visual aids, such as flow charts, to document how the information will be used as part of a project can assist in identifying potential data privacy risks. This may also help with internal communication by better allowing the project team and others in your organisation to understand the design of the project.

3. Identifying data protection and related risks

This stage involves examining the project design to assess what data protection issues arise in the project, and to identify any risks it may expose individuals to, as well as any data protection-related risks that the project might create for your organisation.

There are a range of different ways that an individual’s data privacy can be compromised or put at risk by a new project. The types of risk range from the risk of causing distress, upset or inconvenience to risks of financial loss or physical harm. There are equally as many kinds of data privacy-related risks to organisations, related to compliance issues and commercial factors. Breaches of the UK GDPR, such as excessive data processing or data breaches, can lead to significant penalties, as well as causing reputational damage to your organisation.

This step should build upon work done at previous stages of the DPIA. The responses to the criteria laid out in the above section “How do I know if a DPIA should be conducted” should act as a guide to the risks which may be present. The map of information flows generated in stage 2 may help you to identify particular weak spots, where general data privacy risks are likely to be particularly acute, or which might give rise to specific risks.

For public sector bodies contemplating data processing measures that limit the EU fundamental right to data protection under Article 8 of the EU Charter of Fundamental Rights, a detailed analysis of the ‘necessity’ of the measure must be undertaken. Guidance published by the European Data Protection Supervisor will assist public sector policymakers in conducting the necessary analysis. The EDPS guidance is available at https://edps.europa.eu/sites/edp/files/publication/17-06-01_necessity_toolkit_final_en_0.pdf

Examples of the types of risks that you should be alert for at this stage of the DPIA process are outlined below. You should also examine sector-specific guidance which may be provided by regulators or industry groups in your area of operations, which can highlight types of risk which may be relevant for your organisation or project.

You should take note of the magnitude of the risks identified, having regard to both the likelihood of a risk manifesting itself, and its impact. In assessing the severity of the risk, it is important to bear in mind the sensitivity of the personal data to be processed as part of the project, the number of people likely to be affected by any of the risks identified, and how they might be affected.

You should keep a record of all risks identified at this stage. This will assist later on in the DPIA process in creating solutions to avoid or reduce those risks. Record keeping may be especially important in the event of an investigation or audit by the DPC. Good record-keeping may help to demonstrate how your organisation complied with its obligations under the UKG GDPR.

This identification exercise should be carried out relatively early in the project design, as the sooner that data privacy risks can be identified, the easier and cheaper it will be to mitigate them. However, it is not a once-and-for-all exercise; you should keep the project design under review throughout the DPIA process to monitor the emergence of any new risks, which may occur by reason of a change to the design or scope of the project, and to assist in assessing which risk reduction techniques work.

Your organisation can choose the risk management approach that best suits your existing project management process. The same tools you use for identifying other regulatory or commercial risks as part of your project management process can be used to assess the data protection risks involved in a project. The key point is to ensure that a methodological approach to identifying risks is adopted and that records are kept of this process, and of all the risks identified. Your organisation may wish to maintain a data protection risk register to describe the risks associated with a project and assess their likelihood and impact. You can then go back to the register in the event of any changes to the project, to make note of any steps taken to mitigate risk or any additional risks that emerge. This can be incorporated into an existing risk register if one exists for the project. Small scale projects may adopt a relatively informal approach to risk. You can still use a data protection risk register in such cases, but with the entries reflecting the less formal approach adopted.

A data protection risk register is a master document that is used to record information about data protection risks which have been identified in relation to a particular project, as well as an analysis of risk severity and evaluations of the possible solutions to be applied.

The data protection risk register should be updated as the project progresses, to reflect any solutions or new risks which have been identified.

Example Risks To Individuals

• Inappropriate disclosure of personal data internally within your organisation due to a lack of appropriate controls being in place.
• Accidental loss of electronic equipment by the organisation’s personnel may lead to the risk of disclosure of personal information to third parties.
• Breach of data held electronically by “hackers”.
• Vulnerable individuals or individuals about whom sensitive data is kept might be affected to a very high degree by inappropriate disclosure of personal data.
• Information released in anonymised form might lead to the disclosure of personal data if anonymisation techniques are chosen turn and out not to be effective.
• Personal data is used in a manner not anticipated by data subjects due to an evolution in the nature of the project.
• Personal data is used for purposes not expected by data subjects due to failure to explain effectively how their data would be used.
• Personal data is used for automated decision making may be seen as excessively intrusive.
• Merging of datasets may result in a data controller having far more information about individuals than anticipated by the individuals.
• Merging of datasets may inadvertently allow individuals to be identified from anonymised data.
• Use of technology capable of making visual or audio recordings may be unacceptably intrusive.
• Collection of data containing identifiers may prevent users from using a service anonymously.
• Data may be kept longer than required in the absence of appropriate policies.
• Data unnecessary for the project may be collected if appropriate policies not in place, leading to unnecessary risks.
• Data may be transferred to countries with inadequate data protection regimes.

Corporate Risks

• Failure to comply with the UKG GDPR may result in an investigation, administrative fines, prosecution, or other sanctions. Failure to adequately conduct a DPIA where appropriate can itself be a breach of the UKG GDPR.
• Data breaches or failure to live up to customer expectations regarding privacy and personal data are likely to cause reputational risk.
• Public distrust of your organisation’s use of personal information may lead to a reluctance on the part of individuals to deal with your organisation.
• Problems with project design identified late in the design process, or after completion, may be expensive and cumbersome to fix.
• Failure to manage how your company keeps and uses information can lead to inefficient duplication or the expensive collection and storage of unnecessary information. Unnecessary processing and retention of information can also leave you at risk of non-compliance with the UKG GDPR.
• Any harm caused to individuals by reason of mishandling of personal data may lead to claims for compensation against your organisation. Under the UKG GDPR you may also be liable for non-material damage.

Compliance Risks

Your organisation may face risks of prosecution, significant financial penalties, or reputational damage if you fail to comply with the UKG GDPR. Individuals affected by a breach of the UKG GDPR can seek compensation for both material and non-material damage.

Failure to carry out a DPIA where appropriate is itself a breach of the legislation, as well as a lost opportunity to identify and mitigate against the future compliance risks a new project may bring.

4. Identifying and evaluating data protection solutions

This stage follows on from the identification of data protection risks at stage 3, with the aim of minimising the data privacy risk associated with the project, insofar as possible. In almost all cases, it will not be possible to eliminate data protection risks completely, but the aim of this stage is to balance those risks against the aims of the project, to ensure that any risks that are accepted are proportionate to the outcomes of the project. However, under UKG GDPR, if there are remaining high risks, then you will need to consult with the Data Protection Commissioner, as described below.

Data Protection solutions are steps which may be taken to reduce the likelihood or severity of data privacy risks being realised.

During this stage, you should try to identify “data protection solutions” to reduce the impact of the project on data protection. You should do this by looking at each of the risks identified as part of the previous stage in the DPIA process and seeking to address it individually, or as part of a privacy solution which may address a number of risks together.

In some cases, data protection solutions may be able to eliminate some types of risk, for example by abandoning unnecessary parts of a project which create unique risks. In others, data protection solutions may simply mitigate against risk or reduce the significance of data breaches, for example by adopting pseudonymisation to reduce the risk of identification of data subjects. The nature of these solutions will depend on the types of risk that have been identified, and the aims of the project. You should keep a full record of the process, to document any data protection solutions which have been identified, and which risks they were intended to address, as well as any risks which have been accepted. This can be done in a data protection risks register created under step 3.

This step involves conducting a balancing exercise between the benefits to individuals and your organisation from the project, and the data protection and related risks to those individuals and your organisation. Equally, in assessing whether a particular data protection solution should be pursued, it is necessary to weigh up the costs and benefits of each solution. For example, anonymising data may help to prevent the risk of data relating to an identifiable person being accidentally disclosed to a third party, but it is likely to cost the organisation money to put an anonymisation system in place, and it may prevent some of the goals of the project from being realised (if those goals depend on processing information about identified individuals).

Every project will have its own unique circumstances and risk profile, so there is no “one size fits all” set of data privacy solutions which may be adopted. However, the following are examples of data protection solutions, some of which may be applied in a range of different scenarios:

• Deciding not to collect or store particular types of information.
• Putting in place strict retention periods, designed to minimise the length of time that personal data is retained.
• Reviewing physical and/or IT security in your organisation or for a particular project team and making appropriate improvements where necessary.
• Conducting general or project-specific training to ensure that personal data is handled securely.
• Creating protocols for information handling within the project, and ensuring that all relevant staff are trained in operating under the protocol.
• Producing guidance for staff as a reference point in the event of any uncertainty relating to the handling of information.
• Assessing the need for new IT systems to safely process and store the data, and providing staff with training in any new system adopted.
• Assessing the portability of using anonymised or pseudonymised data as part of the project to reduce identification risks, and developing an appropriate anonymisation protocol if the use of anonymised data is suitable.
• Ensuring that individuals are fully informed about how their information will be used.
• Providing a contact point for individuals to raise any concerns they may have with your organisation.
• If you are using external data processors, selecting appropriately experienced data processors and putting in place legal arrangements to ensure compliance with data protection legislation.
• Deciding not to proceed with a particular element of a project if the data privacy risks associated with it are inescapable and the benefits expected from this part of the project cannot justify those risks.

In most cases, there are some data protection risks which cannot be eliminated or reduced. These risks can be accepted if they are proportionate to the outcomes that will be achieved by proceeding with the project notwithstanding the risk. Any decisions to accept data protection risks should be recorded in the data protection risk register, or otherwise in accordance with your project management process.

At this stage, you should also ensure that the project will be in compliance with data protection laws. In particular, you should consider whether the project complies with the data protection principles, and ensuring that you have a good legal basis for processing personal data.

5. Signing off and recording the DPIA outcomes

The primary aim of conducting a DPIA is to identify and minimise the data protection risks involved in a project. However, as has been emphasised throughout this guide, keeping a record of all steps taken as part of the DPIA will help to ensure that the process is completed thoroughly, and to reassure stakeholders that all data protection risks have been considered. This written record should also form that basis of putting into effect the data protection solutions which have been identified and can be used to check off the implementation of each solution.

There is no requirement to produce a final DPIA report but it is good practice to do so. This report should bring together, in summary, form, the record-keeping from each stage of the DPIA process and note the conclusions from each step of the process. It should also include an overview of the project, explaining why it was undertaken and how it will impact on data protection. It should describe the process adopted in conducting the DPIA and set out the data protection risks and solutions which were identified as part of the process. Your organisation may decide to publish the DPIA report or a summary of it. The decision of whether or not to publish the report will probably have a bearing on how much detailed information is put into the report, as it may not be appropriate to publish commercially sensitive information or information containing too much detail about security vulnerabilities which have been identified.

A DPIA does not necessarily require a formal signing-off process, but your organisation may require it, particularly if it recommends significant changes to the nature of a project, or if it recommends accepting significant risks.

If the data privacy risks which have been identified are not capable of mitigation consistent with the goals of a project, and it would not be proportionate to accept them, this stage should be used for re-evaluating the viability of the project. In such circumstances, an organisation may decide to either change the goals of a project to allow for mitigation of data protection risks or abandon the project altogether.

6. Integrating the DPIA outcomes back into the project plan

Once it has been signed off, it is necessary to put the findings of the DPIA into action by integrating any necessary changes into the plans for the project. The earlier the DPIA can be completed, the easier it will be to give effect to the data privacy solutions, but as the DPIA will not normally be completed until the project has already progressed somewhat in the planning stages, it will normally be necessary to adjust plans to give effect to the data privacy solutions identified.

As part of the implementation of the DPIA, you should keep data protection issues under review. In particular, you should assess whether the data protection solutions implemented are having the intended effect of mitigating data protection risks. Additionally, if the project aims to change or expands over its lifetime, it may be necessary to assess whether a further DPIA is required to assess the effect of the changes on the data protection risks identified. Such a review can be built into your organisation’s existing procedures.