2.3 Access to Records

SCOPE OF THIS CHAPTER

This chapter should be in conjunction with the Confidentiality Policy.

Rights of Access
Exceptions
Offering an Informal Approach
Handling Formal Requests for Access
Timescales
Applications by Children
Applications by Parents
Applications by Agent
Application on Behalf of Deceased Persons
Correction or Erasure of Records
Refusal of Access
Appeals Process

1. Rights of Access

The provisions for access to personal information or records held by Children's Services are contained in the Data Protection Act 1998. Under this legislation, those in respect of whom personal information is held in any form have a right of access to the information, unless one of the exceptions set out below applies.

2. Exceptions

Exceptions to the right to access are:

Where the practice of social work would otherwise be prejudiced because access to the information would be likely to result in serious harm to the person requesting the information or some other person;
Where the person is incapable of managing his or her affairs (for example where the person is a child) and the information was given in the expectation that it would not be disclosed or is information which the subject of the information expressly indicated should not be disclosed;
Adoption Case Records - see Access to Birth Records and Adoption Case Records Procedure.

Also access can be refused if:

To disclose the information would involve disclosure of information about someone else without that person's consent and disclosure cannot be justified without that person's consent; or
Where disclosure may prevent the detection or investigation of a crime.

Access can also be refused if an identical or similar request has been received from the same person and already been complied with, unless a reasonable interval has elapsed.

These exceptions do not permit the total withholding of information but only those sections of the material covered by the exceptions. The remainder of the case records should be made available to the service user.

The exceptions do not apply where disclosure is required by a court order or is necessary for the purpose of or in connection with any legal proceedings.

In addition, a Court may prevent disclosure of information where a person shows that he or she would be caused serious harm to his physical or mental health by the disclosure.

3. Offering an Informal Approach

The practice of all staff should be to encourage ongoing and open sharing of information and recording, including providing copies of key documents.

If a person in receipt of services asks to see a particular document or wants to have information about a particular aspect of the case, the social worker should discuss this with them to see whether the request can be dealt with informally by showing them the relevant part of the file or providing copies of relevant documents.

4. Handling Formal Requests for Access

Those making a formal request for access to their records should be asked to put the request in writing and the designated person who will assist them to do this as necessary. The receipt of the written request should be recorded by the designated person, who must verify the identification of the person making the request via photographic evidence, either through a passport or driving licence or by other appropriate means of identification.

There maybe a fee for this service - local arrangements will vary.

Prior to access being given, all case records held on the person should be located and collected. All indexes and computer records should be checked and all sections of Social Care should be circulated.

The whole file should be checked to ascertain whether any of the material comes within the exceptions to the rights of access (see Section 2, Exceptions).

There should be no disclosure of the identity of third parties or other sources of information, which fall within the second exception (see Section 2, Exceptions).

Any other information supplied by third parties should not usually be disclosed without the third party's consent. When it is not possible to obtain consent, discretion may be used to release information where there is no possibility of serious harm.

An appointment should be made at the earliest opportunity to share the case record with the person making the request, and he or she should be asked to bring appropriate proof of identity.

A social worker should be available to explain the contents of the file, to answer questions and to help the person understand the information recorded.

Where the person making the request has specific needs in relation to language or disability, arrangements must be made to present the information in a suitable manner and to involve approved interpreters as needed.

Interpretative and supportive counselling may be advisable in certain cases using a number of interviews to disclose the information, if the person concerned is willing to proceed in this manner.

A request for copies of information disclosed must be met.

5. Timescales

Access must be given to disclosable information within 40 days of receiving the request. This is the maximum time period allowed. The timescale can only be extended with the agreement of the person requesting access. Where he or she refuses to agree an extension, access should be given to all information open to disclosure at that point.

6. Application by Children

Requests from children should be treated in the same way as requests from adults. A judgement should be made by the designated person or social worker (if not the same) as to whether the child making the request for access understands the nature of the request. Where appropriate, a parent should be asked to provide written confirmation that the child understands the nature of the application.

All children have the same rights to have access to information held about them. No assumption should be made about their level of understanding. This should be assessed on an individual basis as with all children.

A child of sufficient understanding should be allowed regular access to information held about him or her, consistent with his or her best interests. He or she should read or be told what has been recorded unless it falls within one of the exceptions set out above.

A child should be encouraged to record his or her own observations on the case record including when there is disagreement about an entry in the file.

7. Application by Parents

If the social worker considers that the child does not understand the nature of the request, the parent may make a request on the child's behalf. However, the request must be in the interests of the child, rather than the interests of the parent.

If a parent seeks to have access to his or her child's records, the designated person dealing with the request must assess whether the child might be able to request access to the records for him or herself. If this is the case, the designated person should check that it is the child's choice for the parent to see the records on his or her behalf. If it is, the child will be asked to confirm this in writing and access to the parent can then be agreed. If it is not, access will not be granted.

Whether or not a child is capable of understanding the request or has consented to the parent making the request, it is important that a parent should only be given access to the information about the child if the worker in consultation with his or her manager is satisfied that the request is made in the child's and not the parent's interest.

8. Application by Agents

A request for access to records may be made through an agent (for example, a solicitor).

It is the agent's responsibility to produce satisfactory evidence that he or she has authority to have access to the records. This will always include proof of their identity.

The designated person will decide whether the representative will be allowed access, having sought Legal Advice if necessary.

9. Application on Behalf of Deceased Persons

Where a request is received for access to the records of some-one who has died, the person making the application should be asked to explain in writing their relationship to the deceased person, what information is needed and why. The designated person should make a decision in consultation with his or her manager or the Legal Department if there is question over the legitimacy of the request and advise the applicant in writing of the decision with reasons.

10. Corrections or Erasure of Records

If a person considers that any part of the information held on his or her records is inaccurate, he or she has the right to apply in writing for it to be corrected or erased.

If the objection is justified, there is a duty to correct or erase the appropriate information.

11. Refusal of Access

If the designated person considers there are reasons to refuse a request for access to all or any part of the records (see Section 2, Exceptions), this should be discussed with his or her manager and legal advice should be obtained.

The line manager should be asked to make a final decision on refusal of access, having sought legal advice if required. If refused, the date of the request and reason for refusal must be recorded in the file.

The decision and the reasons for it should be confirmed in writing to the person requesting access, or in a format appropriate to the needs of the person concerned.

12. Appeals Process

The person concerned has the right to apply to the Court for an order to disclose, correct or erase information held. They also have a right of appeal to the Data Protection Commissioner.

End