For in-house counsel, overseeing internal investigations means navigating a complex web of legal risk, operational integrity, and data governance. One of the most critical and often underestimated elements, is ensuring that personal data is handled lawfully, fairly, and securely throughout the process. It’s not just about ticking GDPR boxes; it’s about protecting your organisation from litigation, regulatory scrutiny, and reputational harm.
At the outset, legal teams must understand the underlying point of the investigation and so define the lawful basis for processing personal data. This is not always straightforward, especially where tensions are high. A Data Protection Impact Assessment (DPIA) may be required, particularly where there is a risk to individuals’ rights and freedoms. DPIAs may be expected mainly where investigations involve using, or reviewing the results of, surveillance, profiling, or large-scale data handling.
Access controls are another key consideration that should be considered at the start. Confidentiality is paramount, not just to protect individuals, but to preserve the integrity of the investigation. In-house lawyers should ensure that access to investigation materials is strictly limited and documented, and take the necessary steps to arrange this before any disclosures are already out of control.
Managing data subject rights will be a live issue throughout the investigation. Complainants, respondents, and witnesses may all exercise rights under the UK GDPR, including those regarding access, rectification, and erasure. These requests can be disruptive if not anticipated, and may require careful balancing of competing rights and interests.
Other foundational decisions and preparations include determining who the investigation will be, issuing appropriate privacy notices, and setting clear retention and disposal policies. Where external investigators, legal advisors, or forensic experts are used, data sharing agreements and contractual safeguards must be in place.
Poor planning can lead to serious consequences. Legally, organisations risk breaching the UK GDPR and related laws. UK data protection legislation allows individuals to seek compensation for both material and non-material damage, including distress and reputational harm. Even low-value claims can be costly to defend, and the lack of settled case law means outcomes are unpredictable.
Regulatory enforcement is another risk. The ICO ‘s regulatory arsenal includes investigating complaints, issuing fines, requiring data governance audits, and even prohibiting processing. Failure to conduct a DPIA, inform data subjects, or safeguard sensitive data may all result in enforcement action. Given the principles of accountability that underpins the UK GDPR, in-house lawyers must be prepared to justify their organisation’s approach if challenged.
Mishandling data can derail investigations, damage employee trust, and compromise outcomes. Reputationally, the fallout from a poorly managed investigation can be swift and severe. Ultimately, data protection in investigations is not just a compliance issue - it’s a strategic imperative. In-house legal teams must ensure that data governance is embedded at every stage, from planning to closure.