Care leavers and redaction of records

When the Information Commissioner’s Office announced their new policy and related materials entitled the “Better Records Together” campaign before Christmas, I was delighted that all my campaigning as an executive officer of the Access to Care Records Campaign Group (ACRGG) was coming to fruition. Whilst we welcomed it, if I was being critical, I would say that the message to local authorities, overwhelmed and lacking in resources as they are, was more of a stick than a carrot. I will explain why I think this below.

History

Until the Access to Personal Files Act 1987, no child in care had a right to see their records. We were a less transparent country than we are now. The predominant principles included “national security” and the fear of what might happen if children who had been in care discovered the complete truth about their time in care. The confidentiality and protection of the local authorities was more important than openness, as was the need for social workers to write freely about what they thought of children.

Social Services as a department did not exist until 1971, and in the beginning, mistakes were made while social services practice and procedure were developed, culminating eventually in the Children Act 1989, which remains the foundation law for all social workers. Consequently, when social workers were writing records, they thought that the children in their care would never see what they had written.

In the old days there was one file for the family, whereas now, each child has their own file, which is written very much in the expectation that children will want to see their records at some point in their life, perhaps with greater tact and support than in the early days of social services.

Eventually, due to the increased interest in data, and in particular personal data, the Data Protection Act 1984 was brought into force. There are two sides to disclosure of data. On the one hand, openness grants individuals the right to see what is written about them; on the other hand, privacy prevents individuals from seeing data they are not authorised to see such as the identity of third parties who have not consented to disclosure. There are overlaps with the articles in the Human Rights 1998 (Article 8, the right to privacy, and Article 6, the right to a fair trial, as I will explain below).

Undoubtedly, under the Data Protection Act 2018, the local authority is under a duty to redact the names of third parties who have not given their consent to disclosure of their personal data. This is a highly contentious process. There are sensible guidelines, but a case worker in the subject access department has to make a judgment. Sadly, that judgment is not always exercised sensibly or empathetically, for instance, redacting the names of the care leaver’s family when those names are already known to the care leaver.

The Independent Inquiry Child Sexual Abuse (IICSA) published its report in October 2022 after eight years of hearing evidence about the many aspects of child abuse. Amongst the 20 recommendations was the 17th recommendation to the Information Commissioner’s Office (ICO) to provide guidance on how local authorities should deal with the disclosure of social care records to care leavers. Whilst it has taken four years, the “Better Records Together” guidance and materials is the ICO response to that recommendation.

What are the issues for care leavers?

Unlike children who stay with their parents until they leave home, care experienced adults cannot ask their parents for photographs of their childhood or enquire about why, for instance, they were beaten for stealing an apple. Care leavers have a natural curiosity about what happened in their youth and want to read their records. Unfortunately, they often see their childhood through rose-tinted spectacles such that the reading of their records is a complete shock to them. Hence, they need support when they do so.

Some care leavers do not even know that they have a right to see their records from the past, others do not wish to know and move on. Notwithstanding which group they fall into, the process has to be handled with sensitivity. If not, out of frustration, they often go and see their solicitor, who advises them that they might have a right of action against the local authority if there is evidence of negligence.

Whilst the Supreme Court has made it very difficult, in certain situations, to win such cases, there is usually an investigation that has to be done. We ask for unredacted records from the local authority but rarely get them. They sometimes arrive heavily redacted.

The effect of sending heavily redacted records to clients is to arouse suspicion that the local authority is covering up evidence that shows that they have made mistakes or even committed a crime, such is the misgivings of the care leaver. The problem is that “we don’t know what we don’t know”.

Sometimes, we ask the solicitors who are frequently appointed to act for the local authority for an index as to why redactions have been made. When we do so, they usually object, or fail to do so.

Under Schedule 2 Part 1, Paragraph 5, Data Protection Act 2018, there is an exemption from redaction where the records are required for legal advice or a court case. In my experience, practically no local authority recognises the exception, and care records arrive redacted. Thus, the suspicion of the care leaver becomes even more acute. It turns into anger and affects their mental health. They become even more determined to take legal action.

So, sometimes, a mere enquiry about access to records can turn into expensive litigation against local authorities.

What is the answer?

The Access to Care Records Campaign Group was set up in response to the Court of Appeal decision in Durham County Council v Dunn [2012] EWCA Civ 1654, which was a case where I represented the care leaver. It decided that solicitors for the Local Authority were not entitled to redact the names of other care leavers who were witnesses to the abuse on the grounds of privacy (Article 8) because of the right to a fair trial (Article 6).

In 2013 Baroness Lola Young of Hornsey, on behalf of our group, gave a speech in the House of Lords during the course of which she suggested new legislation that contained the solution to many issues care leavers experience and some of which have since been addressed by transitional guidelines under the Children Act 1989 and the new Better Records Together policy from the ICO.

Whilst these guidelines undoubtedly help, they are directed towards the needs of the care leaver rather than trying to help the local authority. The question is “why should the ICO help the Local Authority who are not running their Subject Access Departments efficiently enough, and why am I suggesting a different approach?” In the ICO press release, there are examples of underperforming local authorities who have taken too long to disclose records.

If I quote the terms of the proposed new legislation which Baroness Young suggested this may help:-

"It shall be a defence to any allegation of unlawful disclosure of data under the Data Protection Act by the data controller, if it can be shown that the data controller has made a reasonable examination of the data and has satisfied himself as to the need to disclose data and identities of individuals whose consent has not been obtained …...under ...the Act having regard to the needs of the care leaver as set out elsewhere in this Act.” (my emphasis)

I worked with Darren Coyne of the Care Leavers Association and colleagues from Barnardos and CoramBaaf to roll out a series of Round Table events for Local Authorities a number of years ago, during the course of which it became evident that most subject access departments were risk averse, so concerned were they that the ICO might bring proceedings against them for wrongfully disclosing 3rd party personal data.  It also became clear that indemnity insurers would put Local Authorities under pressure to be very risk averse when sharing information. Thus, my solution was to provide the Data Controller in local authorities with a defence of reasonable examination and protection from proceedings, as long as they have been through the records and made a balanced value judgment about the impact of sharing information about a third person.

The effect of this would be to pave the way for “light touch redaction” which is what all care leavers would want but rarely get. They want to read unredacted accounts about of their life in care.

I suspect that the ICO could not provide record keepers with this sort of defence when one of their roles is to protect the wrongful disclosure of data. So within the ACRCG, we remain committed to trying to incorporate this amendment into the Data Protection Act 2018 to ensure that care experienced adults have information from the records to make narrative sense of their time in care. Whether we will achieve this is another matter altogether. Hence, whilst I welcomed the “Better Records Together” campaign it seemed to be more stick than carrot.

Peter Garsden, Solicitor & Executive Committee Member, Access to Care Records Campaign Group (ACRGG) and President of Association of Child Abuse Lawyers.