This chapter should be read in conjunction with the Confidentiality Policy.
- Rights of Access
- Offering an Informal Approach
- Handling Formal Requests for Access
- Applications by Children
- Applications by Parent
- Applications by Care Leavers
- 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.
The Data Protection Act applies to both paper and manual records and records held electronically. It is important that electronic recording systems comply with the requirements for children and their families to easily find their story in a logical narrative.
The Freedom of Information Act 2000 gives people the right to see all types of other non-personal information held by children's services. Local authorities should publicise their access to records policy with clear information about how care leavers and others can apply for their records and access support services.
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) with sufficient age and understanding 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 social worker should assist them to do this as necessary. The receipt of the written request should be recorded by the social worker, who must verify the identification of the person making the request. If he or she is not known to the social worker, the social worker must ask for photographic evidence, either through a passport or driving licence.
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 Services should be circulated.
The social worker should carefully check the case records to ensure they are complete and maintained in line with the Recording Values and Principles. The whole file should also 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.
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. Applications by Children
Requests from children should be treated in the same way as requests from adults. A judgement should be made by the social worker 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.
Children with disabilities have the same rights as others 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.
In Scotland the law presumes that a child aged over 12 has the capacity to make a subject access request. The presumption does not apply in England and Wales but does suggest an approach that will be reasonable in many cases.
7. Applications by Parents
Even if a child is unable to understand the implications of a request, the data about them is still their personal data and does not belong to anyone else, such as a parent. It is the child who has the right of access to information held about them, even though, in the case of young children their rights are likely to be exercised for them by people with parental responsibility.
Before responding to a request for access to information held about a child, it should be considered whether the child is mature enough to understand their rights. If they are they should be responded to rather than the parent. If a worker is unsure about whether a child is able to understand what it means to make a request and how to interpret the information they receive as a result the worker should consider:
- The child's level of maturity and ability to make decisions like this;
- The nature of the personal data;
- Any court orders relating to parental responsibility that may apply;
- Any consequences of allowing those with parental responsibility access to the child's information. This is particularly important if there have been allegations of abuse;
- Any detriment to the child if people with parental responsibility cannot access this information;
- Any views the child has on whether their parents should have access to information about them.
8. Applications by Care Leavers
When an application has been received from a care leaver, it is important that the request is acknowledged promptly and in writing, or other appropriate forms of communication if required. The care leaver should be informed about the process and procedure, timescales for dealing with such requests and the services that the authority is able to provide.
An acknowledgement should be sent to the care leaver within ten working days. confirming that records exist. If the authority knows that the care records do not exist, there should be no delay informing the care leaver. The letter should also indicate when they are likely to receive information from the care records and that:
- The local authority will locate all existing records relating to the care leaver, including registers from children's homes. Legislation requires that a child's case record must be kept until the 75th anniversary of the child's date of birth;
- There is a statutory duty to respond to a subject access request within 40 calendar days. If it is not possible to meet this requirement, this should be explained to the care leaver, giving reasons and the timescale when the records will be available;
- The care leaver will need to produce proof of their identity before the organisation can disclose any personal information however, if the person is already known the proof of formal ID is not required;
- If the records cannot be located, the care leaver needs to be informed as soon as possible with information about the steps that will be taken to try to locate them. If records have been transferred to another local authority, the individual should be put in touch with the relevant organisation if this can be done. When records have been destroyed or mislaid, the care leaver must be informed as soon as possible and assistance given to assist the care leaver to locate other information and registers that may be available, such as, health and education records.
It is important that the case worker has telephone or direct contact with the care leaver to introduce themselves and explain the process. It provides an opportunity for the care leaver to discuss what they are hoping to obtain from their records, how s/he would like these to be shared and what they already know about their family and history. The case worker can also offer and identify what support the care leaver would like to receive. The care leaver should be assured that s/he will receive comprehensive information about their family background and time in care including information already known to them. It is important to offer to telephone the care leaver after they have received and read their records and to inform them that the case worker is available to try and answer any questions or concerns they may have.
Local authorities should respond to requests from a direct descendant of a care leaver if information about family history is being sought.
9. Applications 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 Team Manager will decide whether the representative will be allowed access, having sought Legal Advice if necessary.
10. 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 social worker should make a decision in consultation with his or her manager and advise the applicant in writing of the decision with reasons.
11. 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.
12. Refusal of Access
If the worker 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.
13. 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 Information Commisioner who may make an assessment about whether the law has been complied with and issue enforcement proceedings to make the Authority comply with the request if necessary and/or recommend an application to court alleging a failure to comply with the Data Protection Act.