The Data Protection Act 1998 governs the obligations of Local Authorities in relation to data held on behalf of individuals such as those held in care. Part II of the Act gives any person whose data are kept a right of access to such data, subject to certain limited exemptions in Part IV. The whole Act is governed by the overriding Data Protection Principles set out in the Schedules to the Act.
Generally speaking a person only has a right to see information about themselves (Section 7) and not someone else without that other person’s consent (Section 7(4)), hence the practice of redaction. Local Authorities are given guidance as to how they should interpret this restriction by, for example, attempting to obtain the consent of third parties (Section 7 (6)), or waiving the necessity of trying to obtain consent, where, for instance, the person concerned is likely to be dead, or untraceable.
This article refers to redaction in relation to two groups:
(a) (former) children in care or (former) pupils of residential special schools who seek access to their own records;
(b) access by solicitors and expert witnesses to records in cases where former children in care are alleging negligence.
There may be other groups who are in similar situations, but the issues faced by these two groups probably represent the range of issues faced by others.
It is possible to seek a Judge’s permission for records to be unredacted if justice will be compromised by the use of redacted records, but this will only be known once the records have been redacted and are found to be unusable, so that time is wasted both in the redaction and the action required to seek unredacted records. As far as I am aware there is no process for former looked after children to appeal against redaction when they wish to access their personal records and are not involved in litigation.
The situation is exacerbated whenever there are shared records, such as log books in children’s homes and family files in social services records, as they both inevitably contain a large volume of information which does not directly the person in question. Since the practice of maintaining family files has been standard practice for several decades, this applies to a large proportion of claimants.
In practice, redaction varies greatly, depending mainly upon the policy of the local authority responsible for the records. The most enthusiastic redactors attempt to wipe out references to any person other than the subject. Some do not bother with redacting and make all the information available. Some redact only the information which they consider sensitive. In heavily redacted files the quality of redaction is usually poor, so that different copies of the same document may be redacted differently, such that comparison enables the full document to be read. Indeed, I can recall only one case in which the files had been both heavily and accurately redacted.
I understand that redaction is usually the responsibility of local authority officers accountable for compliance with the Data Protection Act. However, the identification of sensitive information may require a professional social work judgement. This may mean that a qualified social worker (who is not necessarily trained in the niceties of the Data Protection Act and who certainly has a lot of other more pressing priorities) will be asked to read the material, which can amount to several thousand pages. To judge by the quality of redaction, it appears that the task is understandably delegated to a junior clerk.
The arguments for redaction are that:
(a) it is required by the Data Protection Act;
(b) it prevents confidential information about a third party being made known to the person accessing the record.
Examples of confidential information include:
(a) the names of people who have made allegations of abuse, who may be at risk of violent attacks from their abusing neighbours if it becomes known that they were the source of allegations;
(b) the whereabouts of adoptive parents who do not want to be contacted by the subject’s blood relatives;
(c) the names of the subject’s parents’ earlier children who had been kept secret from the subject (though it could be argued that the subject and the older child/ren should both have as much right to know of their siblings as their parents have of concealing the fact).
The arguments against redaction are that:
(a) it may be based on an overzealous interpretation of the Data Protection Act;
(b) the interpretation has not been tested in Court;
(c) virtually all the information redacted need not be: it is not particularly confidential and it may already be known to the person accessing the material;
(d) redaction takes a lot of time, it is therefore costly, and it slows up processes;
(e) redaction (fortunately) is usually done badly, so that it is possible to work out who and what has been redacted; if the information had truly been confidential, it would not have been concealed;
(f) to understand heavily redacted documents takes probably three times as long as unredacted documents, wasting professionals’ time, and therefore money;
(g) thoroughly redacted documents are sometimes incomprehensible, and some pages are completely obliterated;
(h) even badly redacted documents may detract from the understanding of the situation, such as the way services are managed (for example, a children’s home) or the subtle dynamics within a family;
(i) people reading their own files and expert witnesses reading case material are doing so in confidential settings and there is generally no need for their contents to be circulated further;
(j) where cases come to Court, confidential material is often made public;
(k) where records relate to group settings the subject may see the others in their group virtually as family members and the records will be describing the activities of their ‘family’, to which they should have access;
(l) to suggest that professionals such as lawyers and expert witnesses cannot cope with confidential material is clearly a nonsense or a slur;
(m) it is illogical that archivists, researchers and administrators should have unredacted access to files when they are not open to those who are most closely and directly affected, such as the subjects and the professionals dealing with their cases;
(n) in terms of arguing the case it is in the interests of both the claimant and the defendant to have full information;
(o) where documentation is redacted the unavailability of information may disadvantage the claimant as it is available to the defendant.
The consequence of these problems is that occasionally solicitors request unredacted copies. This is obviously helpful, but it means that, as noted above, time has been wasted on redaction, and the expert witness has to re-read the documentation. More frequently, rather than cause delay, I base my reports on the redacted records and add disclaimers that aspects of the cases may have been missed or misunderstood.
Examples include the case where the subject claimed to have been scapegoated, but where information about the way the parents related the subject’s siblings had been obliterated (as they were all third parties), such that there were limited clues as to whether the scapegoating constituted grounds for the removal of the subject from home. Again, some redactors insert initials at the side of the page to replace the names of family members, foster carers etc.; unfortunately they often get their systems of replacement wrong, and the outcome is that work on such files is at best very slow, and the expert witness may be misled .
It is my view that, from a practical point of view, the arguments are so heavily weighted towards non-redaction that it should be the norm. Where it is known that there is a specific information which needs to be concealed, redaction should still be an option, but the basic principle should be openness. If this arguments is accepted, action should be taken for the adoption of this approach by local authorities