Access All Areas?

A piece appeared in the Times last week accusing Family Courts of hiding information from parents, in particular relating to social services file. I must admit to being rather puzzled by this slightly muddled article. In the first instance within care proceedings the Local Authority is under a duty to provide a wealth of information at the outset of a case and on an ongoing basis. If that duty is not complied with the court will order compliance. Secondly, family courts are able (and willing) to order specific disclosure against Local Authorities and other organisations like the Police where the standard information is inadequate. Thirdly, there is a quite separate legal duty upon Social Services to disclose information to a data subject (or to the parent of a data subject child until they are Gillick competent or thereafter with their Gillick consent) pursuant to a Subject Access Request under the DPA. That information must be provided upon request and within 40 days of payment of a fee of no more than £10.

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There are as one might imagine a number of exceptions to the DPA duty of disclosure which account for the frequent black marker pen on disclosed documents. In my experienced of both family and other types of cases (for example employment disputes) this is often indiscriminately applied to the point where the unredacted text is rendered unfathomable, with the problem worsening exponentially as the volume of paperwork to be redacted increases. But it is a corollary of the rights of the data subject seeking her information that the rights of other data subjects should not be trampled upon. A useful guide from the ICO’s office to the correct approach in DPA Subject Access Requests to social services can be found here.

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The DPA duties which apply to data controllers like social services (or GPs or health visitors) are not the source of the courts’ power to order disclosure, which is a discretion rather than a duty and which is exercised according to the demands of the litigation and the need to ensure fairness as between parties rather than the rights of any data subject.

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I’ve no doubt that there are cases where DP Subject Access Requests are ignored or dealt with slowly or where the redaction is done in a cack handed way, but the route for redress in respect of that is complaint to the ICO. This is little help when a court date is approaching. If a party requires information for the purposes of court proceedings an application should be made at an early stage within those proceedings rather than relying on compliance with the DPA – a properly made court order for disclosure of information overrides any duty of confidentiality or other objection on data protection grounds that an organisation may have, and may encompass all relevant information rather than only information relating to the individual data subject (so for example files relating to BOTH parents or documents containing joint information, where the two subjects are separated). Although in civil cases a DPA request may be useful to obtain pre-proceedings information (for example to help assess the merits of a prospective claim for discrimination against a former employer), this is generally not relevant to family proceedings.

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Although in family cases a two pronged approach may sometimes be helpful, it is usuall better to apply in the first instance for an order of the court which is more easily enforceable than a subject access request, and which can be dealt with in tandem with the ongoing court process. Judges may be reluctant to order blanket disclosure of things like social services case logs unless there is a any reason for thinking they may be necessary (knowing  as they do how lengthy they can be), but will do so where appropriate (for example where there is a factual dispute about something the social worker purports to have recorded contemporaneously).

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Those seeking disclosure – particularly via the DPA route – should be prepared to be drowned in reams of paperwork which may prove to be a distraction from the real issues in a case.  The danger of a DPA request is that it may be quite indiscriminate (and it is not unknown, in the context of more adversarial proceedings at least, for a DPA subject access request to be deliberately complied with to the letter in the hope of overwhelming the other side or that they will miss the crucial information). The task may be like finding a silver bullet in a haystack. Be warned – you may get what you ask for.

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