Cumbria County Council Logo


Top of page

Size: View this website with small text View this website with medium text View this website with large text View this website with high visibility

2.3 Subject Access Requests

RELEVANT CHAPTERS

This chapter should be read in conjunction with the Confidentiality Policy.

See also Access to Birth Records and Adoption Case Records Procedure.

Please see below for tools in determining what is personal data:

Determining what is Personal Data

Subject Access Code of Practice

RELATED GUIDANCE

Information Commissioners Office – Guide to Data Protection

AMENDMENT

In August 2016, this chapter was extensively updated 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
  7. Applications by Parent
  8. Applications by Agents
  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 under 12 years) with sufficient age and understanding and the information was given in confidence or 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.


4. Handling Formal Requests for Access

Click here to view the process for subject access requests in Cumbria.


5. Timescales

Access must be given to disclosable information within 40 calendar days of receiving the request. This is the maximum time period allowed. We keep all applicants informed of progress and may have to, under certain circumstances, negotiate a longer period.


6. Applications by Children

In certain circumstances the SAR Officer may recommend the use of an Independent advocate from advocacy services commissioned by Cumbria County Council, to assist  a child in accessing their written records.

Requests from children should be treated in the same way as requests from adults. A judgement should be made by the Social Worker as to whether the child making the request for access understands the nature of the request. Where appropriate, a parent should be asked to provide written confirmation that the child understands the nature of the application.

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 exceptions 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. Applications 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 though, in the case of young children their rights are likely to be exercised for them by people with parental responsibility.

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 Agents

For further information see The Children Act 1989 Guidance and Regulations Volume 3: Planning Transition to Adulthood for Care Leavers (revised May 2015).

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 SAR Officer will decide whether the representative will be allowed access, having sought Legal Advice if necessary.


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. The SAR Officer will make a decision 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.


11. Refusal of Access

If the SAR Officer 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 their 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 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 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