The difference between Michael and me seems to be that he is talking about emails, I am talking about the personal data that happens to be in some of those emails. All the stuff about header info etc. is mostly irrelevant. I accept it is data.
This lunchtime I sent my wife a long email using work email. No policy breach as personal use permitted. Mostly about cats and a craft fair.
If I had added a paragraph which said something disparaging about a mutual friend F, that paragraph, and only that paragraph is personal data relating to F.
Who decided to include that: me not my employer. No basis for imputing vicarious liability as not in any way an employment issue.
Who decided on the content and nature of the personal data included: me not my employer. .
Who decided the purpose of including that data: me not my employer.
Who decided which friend to disparage: me not my employer.
Who may decide whether to forward that data to another party: me not my employer.
Who decides how long to keep the email : me not my employer.
Who decides whether to issue any corrections: me not my employer.
Who could decide if any SAR exemptions apply: me not my employer. For example it might be part of a reference as the friend was offering to do some work for us.
Conclusion : I am the DC not my employer. He cannot make any of the key decisions which only a DC can make - see para 16 of ICO guide. On the other hand if you look at para 18 he makes most of the Data Processor decisions. Whatever the policy and conditions and legal position relating to anything else relating to the email system and emails anything else I am the DC for that bit / paragraph of personal data about F.
Will be interesting to see what answer ICO gives to OP...
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