1.5.1 Access to Records |
SCOPE OF THIS CHAPTER
This Chapter applies equally to electronic and paper based records held and references to documents includes documents printed off the system.
Contents
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. This procedure deals with the way in which such requests should be dealt with.
N.B. This remains the relevant legislation for dealing with such requests for access to personal information. Personal information is exempt information under the Freedom of Information Act 2000 and that Act does not therefore apply to requests for access to personal information held on records (see also Confidentiality Values and Principles).
2. Exceptions
Exceptions to a person’s right to access personal information held about him or her are:
- 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.
- Where the person is incapable of managing his or her affairs (for example where the person is a child) and the information was given in the expectation that it would not be disclosed or is information which the subject of the information expressly indicated should not be disclosed
- Where the request is for access to an Adoption Case Records- see Pan London Adoption Procedures.
N.B. The exceptions in paragraphs 1 and 2 above do not permit the total withholding of information. Only those sections of the information covered by the exceptions should be withheld. The remainder of the records held should be made available to the applicant.
None of the exceptions 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, (see also the section on Confidentiality in Policy, Values and Principles).
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
4.1 Receiving Requests
Those making a formal request for access to their records should be asked to put the request in writing. There is a Request Form in the leaflet “Your Records, Your Rights” or the “Access to Records Form” can be completed on-line at the Enfield website.
4.2 Preparing the Records
Prior to access being given, the worker processing the request should locate and collect all records held by Children’s Services in relation to the relevant person.
All indexes and computer records should be checked.
The worker concerned should read all the available material, carefully checking that the records are complete and maintained in line with the Enfield Recording Policy set out in the Policy, Values and Principles. Only papers incorrectly filed should be removed - i.e. material that does not relate to the service user or duplicate information.
This process will enable third party or other confidential information to be easily identified.
The records should be checked to ascertain whether any information comes within the exceptions to the rights of access (see Section 2, Exceptions). There should be no disclosure of the identity of third parties or other sources of information falling within the second exception (see Section 2, Exceptions).
Where third party information does not fall within the exception, the third parties should be contacted as soon as possible for consent to disclosure. Contact may be by letter, or by telephone if the third party has a copy of the information concerned.
Where third parties are no longer available or fail to respond in time, it will be for the worker providing access to decide whether to release information. Discretion may be used to release information where there is no possibility of serious harm and disclosure would be of benefit to the person requesting access. If there is any doubt, the worker concerned should speak to a manager.
4.3 Providing Access
An appointment should be made at the earliest opportunity (and within a maximum of 40 days from the request) to share the records with the person making the request, and he or she should be asked to bring appropriate photographic proof of identity - for example, a passport or driving licence with a photograph.
Key information should be identified and photocopied in advance of the meeting with the service user, so that the worker is available during the meeting to explain the contents of the records, to answer questions and to help the person understand the information recorded.
Consideration should be given to offering access to records in electronic format - on a laptop or CD for example.
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.
Interpretative and supportive counselling may be advisable in certain cases using a number of interviews to disclose the information, if the person concerned is willing to proceed in this manner.
A request for copies of information disclosed must be met and no charges should be made for the service.
5. Timescales
Access must be given to disclosable information within 40 days of receiving the request. This is the maximum time period allowed. The timescale can only be extended with the agreement of the person requesting access. Where he or she refuses to agree an extension, access should be given to all information open to disclosure at that point. See Section 13, Flowchart.
6. Application by Children
Requests from children should be treated in the same way as requests from adults. The relevant worker should make a judgement 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.
Disabled children 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 in Section 2, Exceptions.
A child should be encouraged to record his or her own observations on the records, including when there is disagreement about an entry in the file.
7. Application by Parents
If the worker dealing with a request considers that the child does not understand the nature of the request, the parent may make a request on the child’s behalf. If a parent seeks to have access to his or her child’s records, the worker dealing with the request must assess whether the child might be able to request access to the records for him or herself. If this is the case, the worker should check that it is the child’s choice for the parent to see the records on his or her behalf. If it is, the child will be asked to confirm this in writing and access to the parent can then be agreed.
Whether or not a child is capable of understanding the request or has consented to the parent making the request, it is important that a parent should only be given access to the information about the child if the worker in consultation with his or her manager is satisfied that the request is made in the child’s and not the parent’s interest.
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.
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. They should also be asked to provide proof of their identity.
The worker dealing with the request should make a decision about the request in consultation with his or her manager and advise the applicant in writing of the decision with reasons. The next of kin and executor should also be consulted before a decision is made.
10. Correction 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.
In any event, the records should be marked to show the objection - even if an amendment is not agreed.
11. 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 exceptions in Section 2, Exceptions), this should be discussed with his or her manager and legal advice should be obtained where appropriate.
If access is 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 Data Protection Commissioner.
Those who are dissatisfied should also be advised of the Representations and Complaints Procedure.
13. Flowchart
Please click here to view flowchart.
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