View Safeguarding Procedures View Safeguarding Procedures

1.6.1 Access to Records

AMENDMENT

In June 2016, Section 7, Applications by Parents and Section 8, Applications by Care Leavers were re-written and should be read in full.


Contents

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


1. Rights of Access

The provisions for access to personal information or records held by Children and Families' Services are contained in the Data Protection Act 1998. Under this legislation, individuals have a right of access to information held by an organisation which relates to them, unless one of the exemptions set out in Section 2, Exemptions applies. This procedure should be read in conjunction with the Council’s procedure, which can be found on Insite.

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. Leeds City Council provides information on how to submit a request on the website.


2. Exemptions

There are exemptions to the right to access to information which are contained in the Data Protection Act. The application of such an exemption is on a case by case basis and the Information Governance Team (tel: 0113 3950782) may contact the social worker involved in the case to discuss applying exemptions and whether to withhold or disclose information. Some of the more commonly used exemptions are listed below:

  1. Where the person does not have mental capacity, or is incapable of managing his or her affairs, then a decision is made whether or not to release the information to that person or an individual acting on their behalf. Requests for information relating to children under the age of 12 or children who do not have mental capacity are dealt with on a case by case basis;
  2. Where the information on a file identifies other people, a decision is taken regarding the release of the information. A number of factors are taken into account when deciding whether to disclose, such as the consent of the other person/third party, or where it is reasonable in all the circumstances to disclose without consent and there is no possibility of harm to any individual. It is worth noting that a reference to a social worker or other professionals would not normally fall within this exemption and therefore would be disclosed unless the disclosure of the information would be likely to cause them serious harm;
  3. Where the practice of social work would otherwise be prejudiced because access to the information would be likely to result in serious harm to any individual;
  4. Where there is information held and to disclose the information would be likely to cause serious harm to any individual;
  5. Where disclosure could prejudice the prevention and detection of crime or the prosecution or apprehension of offenders;
  6. Adoption Case Records - see Access to Birth Records and Adoption Case Records Procedure.

These exemptions allow information to be withheld however they do not permit the total withholding of information. In such cases the information governance team will redact (remove/withhold) only those sections of the material covered by the exemptions. The remainder of the case records should be made available to the service user. The information governance team will apply the exemptions and redact the information in accordance with the Data Protection Act.


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. The social worker should establish whether the request can be dealt with informally by showing them the relevant part of the file or providing copies of specific documents. If it isn’t possible to resolve the request informally then contact should be made with the information governance team for advice and guidance (tel: 0113 3950782).


4. Handling Formal Requests for Access

A formal request for access to records is called a Subject Access Request (SAR). The requester must be asked to put the request in writing and the social worker should assist them to do this as necessary. The requester can complete the Council’s SAR form which is available on the Council’s website. There is also guidance available. See Your Rights to get details about your personal data.

Any completed forms should be returned together with evidence of identity to any One Stop Centre or to Leeds City Council Corporate Information Governance, Civic Hall, Calverley Street, Leeds, LS1 1UR. A social worker can send the request internally should the requester require this. The information governance team receive all requests relating to children’s services from the corporate information governance team. They will undertake all the necessary work to prepare the files. They will request all case notes from the area offices and the archives, which will include the paper and electronic records. The team may contact the social worker to discuss any current cases and may ask for assistance in processing the request.

The information governance team will carefully check the records to ensure compliance with the Data Protection Act and the Recording Values and Principles set out in Policies, Values and Principles. It is a criminal offence to alter, deface, block, erase, destroy or conceal data requested under the subject access provisions of the Data Protection Act with the intention of preventing the release of the data. However, data may be amended or deleted after receipt of the access request but before disclosure of the data, if the amendment or deletion would have taken place regardless of the request (e.g. under a retention and disposal policy). The whole file will be read and checked by qualified Data Protection officers within the information governance team to ascertain whether any information should be withheld in accordance with the exemptions to the rights of access (see Section 2, Exemptions).

The information governance team will make an assessment of the records and if appropriate will send a copy of the information via Royal Mail special delivery service to the home address of the requester within the required timescales (see Section 5, Timescales). In certain circumstances the team will request the individual have social care support to read and understand the files. Contact will be made by the team to a senior manager who will arrange to provide the appropriate support to the requester.

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

A subject access request must be dealt with promptly and in any case within 40 calendar days of receiving the request. Prompt action is required from social workers in order for the Council to comply with the timescales.


6. Application by Children

Even if a child is too young to understand the implications of subject access rights, information about them is still their personal data and does not belong to a parent or guardian. So it is the child who has a right of access to information. However in the case of young children, it is likely these rights will be exercised by those with parental responsibility. Before responding to a subject access request for information relating to a child, consideration should be given to whether the child is mature enough to understand their rights and also the implications of the types of information contained in a social care file. Requests from children should be considered in the same way as requests from adults. A decision will be made by the information governance team in conjunction with the social worker as to whether the child understands the nature of the request and whether it is appropriate to provide access to the records. In many situations the child wants to know information relating to the details of the social care involvement and not actual access to the records. This can be dealt with in an informal manner rather than submitting a formal subject access request. Requests from young people under the age of 18 will be dealt with on a case by case basis. Where appropriate a parent may be asked to provide written confirmation that the child understands the nature of the application. Alternatively if appropriate the records may be provided to the parent, again this will be assessed on a case by case basis.

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 exemptions 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. Application 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 in the case of young children their rights are likely to be exercised for them by people with parental responsibility for them.

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 dealt with in accordance with the subject access provisions of the Data Protection Act. As with all such requests, the care leaver should be informed about the process and procedure for dealing with their application, the timescales for dealing with such requests and the services that the authority is able to provide.

Within 10 working days an acknowledgement should be sent to the care leaver confirming that their records exist. If the authority knows that the care records do not exist, there should be no delay informing the care leaver of this fact. The letter should indicate when they are likely to receive information from the care records and confirm 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 with reasons and confirmation of the timescale within which 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 department is possible. When records have been destroyed or mislaid, the care leaver must be informed as soon as possible and given assistance to help them locate other information and registers that may be available, for example, through 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. This task is undertaken by the information governance team and the care leaver is offered social work support should this be required.

Local authorities should respond to requests from a direct descendant of a care leaver if information about family history is being sought.

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.


9. 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 information governance team will make checks to ensure the agent has a right of access.


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. Access will normally only be granted where there appear to be grounds for a complaint or where there appears to be a legitimate financial interest and then only to relevant sections of the file. The information governance team will deal with such requests.


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. There is a duty to correct or erase the appropriate information, or if this not possible, or there is a disagreement about the accuracy of data, then a note should be attached to the record indicating the service user's dissent. All such requests should be forwarded to the information governance team.


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, Exemptions), this should be discussed with the information governance team.

If refused, the date of the request and reason for refusal must be recorded in the file. The information governance team will confirm the decision in writing to the requester.


13. Appeals Process

An individual has the right of appeal to the Information Commissioner’s Office who regulate the Data Protection Act. The Commissioner would expect an individual to direct any initial concerns to the organisation first before registering a complaint with their office.

End