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3.3 Access to Records

SCOPE OF THIS CHAPTER

This chapter should be in conjunction with the Confidentiality Policy

See also Access to Birth Records and Adoption Case Records Procedure

RELATED GUIDANCE

Children Act 1989 Guidance and Regulations Volume 3: Planning Transition to Adulthood for Care Leavers (revised January 2015)

Information Commissioners Office – Guide to Data Protection

AMENDMENT

This chapter was extensively updated in September 2016 and should be read throughout.


Contents

  1. Rights of Access
  2. Exceptions
  3. Offering an Informal Approach
  4. Handling Formal Requests for Access
  5. Timescales
  6. Applications by Children and Parents
  7. Applications by Care Leavers
  8. Applications by Agent
  9. Application on Behalf of Deceased Persons
  10. Correction or Erasure of Records
  11. Refusal of Access
  12. 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.


2. Exceptions

Exceptions to the right to access are:

  1. 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;
  2. 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;
  3. 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. Should the applicant require a copy of all personal information held about them, then the request should be dealt with formally.


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. Information about this process, which is known as subject access, together with a downloadable form is available on the Kent County Council website. The completed form, together with proof of identification, proof of address and the £10 fee should be returned to the Information Resilience and Transparency Team who will then check the application and coordinate the request from that point on.

On receipt of the Information Resilience and Transparency Team’s referral, the social worker should arrange for all case records held on the person to 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 party individuals or other sources of information, which fall within the second exception (see Section 2, Exceptions).

Any other information supplied by third party organisations 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, for example names of family members which would be known to the applicant anyway. See the guide to removing third party data on Knet.

Paper records should be copied and electronic records printed and any personal data about third parties should be redacted as required. The completed set of records should then be sent to the Information Resilience & Transparency Team together with a Disclosure Summary Proforma which should explain why the Council is collecting, using and storing the person’s personal data, who the Council has or might share it with and what information if any has been withheld and why. The Information Resilience and Transparency Team will then send out the records to the applicant by Special Delivery Guaranteed™.

Should the applicant have any queries, the 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.


5. Timescales

Access must be given to disclosable information within 40 calendar 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 and Parents

Children have the same rights of access to their own personal information as adults, and the same rights of privacy. The rights of access will depend on the legal capacity of children as defined by the law in the relevant country. There is no minimum age in English law, however current practice accepts that, provided a child is considered capable of giving consent, a child of or over the age of 12 years shall be considered to have ‘legal capacity’. This does not rule out receipt of a valid request from a child of a younger age, as each request should be considered on its merits on an individual basis.

When a subject access request is received from a child it will need to be judged whether the child has the capacity to understand the implications of their request and of the information provided as a result of that request. If the child does understand then their request will be dealt with in the same way as that of an adult. If a parent or legal guardian makes a request on behalf of a child the request will only be complied with when assurances are received that the child has authorised the request and that their consent was not obtained under duress or on the basis of misleading information. If the child does not understand, then a request from a parent or legal guardian for the

child’s information will only be complied with when assurances are received that they are acting in the best interests of the child.

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 Care Leavers

For further information see Children Act 1989 Guidance and Regulations Volume 3: Planning Transition to Adulthood for Care Leavers (revised January 2015) paragraphs 4.21-4.37, Access to Records.

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. Please forward these requests to the Information Resilience & Transparency Team.

The Information Resilience and Transparency Team will send an acknowledgement to the care leaver within ten working days confirming whether or not 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.


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. Please forward these requests to the Information Resilience and Transparency Team who will make a decision in consultation with the social worker and/or his or her manager and advise the applicant in writing of the decision with reasons.


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. Please forward these requests to the Information Resilience and Transparency Team who will make a decision in consultation with the social worker and/or his or her manager 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. Please forward these requests to the Information Resilience and Transparency Team.

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


11. 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 by the Information Resilience and Transparency Team 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 Information Commissioners Office 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.

End