Access to Records

Contents

1. Right of Access by the Data Subject
2. Exemptions to the Right of Access
3. Children Gaining Access to their Files/Records
4. Changing a Record

1. Right of Access by the Data Subject

The right of a Data Subject to request access to personal information or records held on them by children’s homes are set out in Data Protection legislation (namely the UK General Data Protection Regulation (UK GDPR) and the Data Protection Act 2018). Under Data Protection 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 exemptions set out below applies. The right of access applies to both paper / hardcopy records and records held electronically. It is important that electronic recording systems comply with the requirements for data subjects to easily find their story in a logical narrative.

2. Exemptions to the Right of Access

The Data Protection Act 2018 (Schedule 3) contains exemptions to the right of access which is set out in Article 15 of the UK GDPR for health, social work, education and child abuse data. The data subject’s right of access to view their records is restricted in the following circumstances:

1. Where the right of access would prejudice the carrying out of social work because access to the information would be likely to cause serious harm to the physical or mental health of the data subject or some other individual;
2. Where the records contain child abuse data; there is an exemption if access to the record would not be in the best interests of the data subject. (“Child abuse data” is defined in the Data Protection Act 2018 as personal data consisting of information as to whether the data subject is or has been the subject of, or may be at risk of, child abuse. For this purpose, “child abuse” includes physical injury (other than accidental injury) to, and physical and emotional neglect, ill-treatment and sexual abuse of, an individual aged under 18);
3. Where the person is incapable of managing their affairs;
4. Where complying with the right of access would mean disclosing information which was given by the data subject in the expectation that it would not be disclosed or is information which the data subject expressly indicated should not be disclosed.

Access can also be refused if:

• Disclosing information to the data subject would involve disclosing information relating to another individual who can be identified from the information. Unless (a) the other individual has consented to the disclosure of the information to the data subject, or (b) it is reasonable to disclose the information to the data subject without the consent of the other individual; or
• Where disclosure may prevent the detection or investigation of a crime or jeopardise public or national security.

Access requests can also be refused if they are ‘manifestly unfounded or excessive’, for example if an identical or similar request has been received from the same person and already been complied with.

These exemptions do not justify the total withholding of information but only those records / parts of records covered by the exemptions. The remainder of the case records should be made available to the data subject. Before a copy of the case record is provided to a child / young person, care leaver or former service user, all of the information should be checked and any which falls within the exemptions listed above redacted or removed from the copy of the case record provided to the data subject. The data subject should be offered support and the opportunity to ask questions when they are given their case record.

The exemptions 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.

3. Children Gaining Access to their Files/Records

Children living in the home should be actively encouraged to take an interest in their case record, and routinely given the opportunity to read and comment on them. They should be helped to understand what personal information is contained in their case record, how it is used, how long it is kept for and who it may be shared with.

Before case records are shown to children, consideration should be given to the likely effect of sharing the information. All information contained should normally be shared, unless it falls within the exemptions outlined in Section 2, Exemptions to the Right of Access. If in doubt or if there are concerns about the likely effect on the child, the child’s social worker and the home’s manager must be consulted.

Should staff need to share information provided by previous carers or third parties they should:

• Read the records/reports beforehand; and
• Speak to the authors if possible and obtain their consent to the sharing of information.

In addition staff should:

• Collate the records in chronological order and check they use plain, easy to understand language;
• Give thought to what questions the young person may ask;
• Offer support to the child / young person;
• A note should be placed on the Daily Record each time a child has access to records or their file.

4. Changing a Record

If a child claims that information contained in the record/file is inaccurate, incorrect or misleading, they may ask for it to be corrected or changed. Local authorities have 1 month to respond to any such requests and, if any such request is received, the authority should take reasonable steps to establish if the data is accurate and rectify the record if necessary.

If there is disagreement between the originator and the child, the home’s manager should make a decision on whether or how the record should be amended.

This may result in the original record remaining the same and an additional record of the child's views being made.