South West Safeguarding and Child Protection Procedures
South West Safeguarding and Child Protection Procedures South West Safeguarding and Child Protection Procedures

2.5 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

AMENDMENT

This chapter was reviewed and updated in May 2016. The chapter has been substantially rewritten and should be read in its entirety.


Contents

  1. Rights of Access
  2. Reasons Why Information Might be Withheld
  3. Offering an Informal Approach
  4. Handling Formal Requests for Access
  5. Timescales
  6. Applications by Children and their Parents
  7. Applications by Care Leavers
  8. Applications by Agent
  9. Application for Information About the Deceased
  10. Correction or Erasure of Records
  11. 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 for The Data Protection Act (DPA) 1998 - Section 7 (Right of Access to Personal Information) gives an individual a right of access to the personal data that the authority holds about them.

It should be noted that an individual making a ‘Subject Access Request’ is only entitled to obtain information about themselves. In general, Information about other individuals can only be provided if consent has been obtained from these individuals.

The Freedom of Information Act (FOIA) 2000 gives an individual the right to access recorded information held by public bodies. In practice the FOIA will apply largely to non-personal information held by the authority. Under the FOIA the authority has a duty to publish information about their activities. Details of published information are available via the authority’s ‘Publication Scheme’.

Authorities are expected to provide information (including contact details) detailing how individuals can exercise their rights under the DPA and FOIA. This is done via leaflets and information published on their website.

Members of the public have a right of access to the information, unless one of the exceptions set out below applies.


2. Reasons Why Information Might be Withheld

  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 another;
  2. Where the request is made by another person on the subject’s behalf but the data:
    • Is information which the subject expressly indicated should not be disclosed;
    • Is information which was given to the authority with the expectation that it would not be disclosed.
  3. Adoption Case Records - see Access to Birth Records and Adoption Case Records Procedure;

    Access can also be refused where:
    • Disclosure of the information would involve disclosure of information about someone else;
    • Disclosure may prevent the detection or investigation of a crime;
    • The information consists of legal advice given in connection with the case;
    • An identical or similar request has already been complied with (unless a reasonable interval has elapsed).

These provisions do not permit the total withholding of information but will only apply to the types of information that fall within these categories. 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 their physical or mental health by the disclosure.

The provisions, detailed above 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.

Please note that the above is not an exhaustive list of exemptions. For further information please contact customerrelationsteam@plymouth.gov.uk.


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. This approach should reduce the need for individuals to exercise their legal rights of Subject Access and foster a working relationship of trust and openness.

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. Prior to dealing with any request informally the social worker should consider whether the requested documents contain information about other individuals or information exempt under the DPA. If in doubt the social worker should seek advice from the Customer Relations Team (CRT) who deal with all Subject Access Requests for information contained within social care and education records.


4. Handling Formal Requests for Access

Those making a formal request for access to their records are exercising their legal rights under the Data Protection Act 1998 - Section 7 (Right of Access to Personal Information). The request should be made in writing giving as much detail about the type of information the applicant wishes to obtain. The social worker should provide assistance where necessary in formulating the request. The request should then be sent to CRT who undertake all Subject Access Requests involving social care and education records. To process the request, CRT will ask for two forms of identification which must be original documents. A statutory administrative fee of £10 is also charged for each application. Plymouth City Council waives this fee for those who have been in the care of the authority who would like to access childhood records.

The Customer Relations Team will deal with all aspects of liaising with the applicant, obtaining the necessary records, preparing them in accordance with the DPA and releasing them to the applicant.

Where the applicant is currently working with Children Young People and Families, CRT will liaise with the relevant social worker prior to the release of the records. This will enable the social worker to provide any necessary support to the applicant and to deal with any implications, should they arise.

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.


5. Timescales

The DPA 1998 states that Subject Access Requests must be completed within 40 days of the authority receiving the request. Any extension to this 40 day deadline can only be given with agreement from the applicant. Should any extension be required this will be negotiated by the CRT.


6. Application by Children and their Parents

In the course of managing a case a social worker should allow a child, of sufficient understanding, 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 that information would be exempt under the DPA. 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.

It should be noted that children have the same legal rights of access to their personal information as adults. Requests from children (including those with disabilities) should be treated in the same way as requests from adults. Such requests will be dealt with by the CRT in a similar manner to that outlined in Section 4, Handling Formal Requests for Access. CRT will liaise with the relevant social worker where necessary to ensure that disclosure does not ‘prejudice the carrying out of social work’. A general assumption in England (though not defined in law) is that a child of the age of 12 or above has the capacity to understand and exercise their own legal rights and therefore is able make a Subject Access Request independent of their parents. Should a parent make a request on their child’s behalf and the child is aged 12 or over, the child will be asked to provide consent for their information to be disclosed to the parent. Where a child does not have capacity to make a Subject Access Request, an individual with parental responsibility may make a request on the child’s behalf.

When dealing with requests made by parents for their child’s information the CRT will liaise with the relevant social worker to ensure that disclosure of this information to the parent is in the best interests of the child.


7. Applications by Care Leavers

For further information see The Children Act 1989 Guidance and Regulations - Volume 2: Care Planning, Placement and Case Review.

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.


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. Requests of this nature should be sent, without delay, to the Customer Relations Team who will deal with them.


9. Application for Information about the Deceased

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.


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. If the authority determines that the records are correct, the applicant still has the right to have their views placed on the record.


11. 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 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