Reflecting on information rights for care leavers in a complex legal world
By Elizabeth J Lomas, on 10 July 2018
On the 25th May 2018 the General Data Protection Regulation came into force across the European Union. This legislation was enshrined into UK law through the Data Protection Act 2018. Together these laws are intended to give greater protections and rights to individuals.
All organisations that manage ‘personal data’ (and what business, charity or public authority does not!) must demonstrate that they do so appropriately. This is termed ‘privacy by design’. It places the onus on organisations to proactively consider their information management processes and the documentation of these processes. The legislation brings in far higher penalties for failing to comply with data protection law (up to 20 million Euros or 4% of turnover whichever is greater) and as such it is evident that organisations are seemingly taking notice.
As guidance emerges on the implementation and bedding down of new best practices under these laws, key stakeholders need to be part of the discussions around the management and use of their information. As a result of this legislation, it is to be hoped that better care will be taken of records as the penalties for the mismanagement or loss of information are significant. To lose the file of a care leaver could cause significant damage or distress and as such is likely to be judged harshly. However, ‘privacy by design’ and the increasing reliance on documented risk assessments may mean that organisations will proactively destroy much more personal information unless they are given rigorous reasons why information needs to be kept. Whilst the records of those who are formally defined as ‘Care Leavers’ (https://www.wigan.gov.uk/Resident/Health-Social-Care/Children-and-young-people/Care-leavers/Who-is-a-care-leaver.aspx) are legally required for 75 years from the date of the record, the records of children who have a more complex picture of social care are not necessarily given such strong protections and may be destroyed far earlier. It is important to ensure that local authorities do take into account the significance of these records to individuals as sometimes they are the only affirmation of childhood memories albeit that many may not feel a need or indeed ready to access this information for decades.
Those who are hoping that the new laws will enhance their access rights may be somewhat disappointed. The concept to access to the records of children who have been in care was enshrined in law through the case of Gaskin v UK (1989) 12 EHRR 36 which relied on Article 8 of the Human Rights Act to make the case for access given that this entitles an individual to respect for private and family life. However, when authorities review files they are required to consider the duties of confidentiality owed to other parties where their information is also on record. This is a balancing exercise which is often subjective. It would aid this process if clearer guidance were provided to enable an authority to weight the Care Leavers’ rights in these cases and thus err on the side of release. Some authorities do take this stance given that the damage or distress caused to an individual when information is withheld is not insignificant.
Finally, it is to be acknowledged that many Care Leavers will not want ‘the State’ to retain the record of their childhood and may be hopeful that the ‘Right to be Forgotten’ under the law will enable them to request that their files will be destroyed. Sadly, the right to be forgotten is quite limited. Where authorities have a legal basis for retaining the information and in certain cases a legal responsibility to do so it is unlikely the information will be destroyed. If records have been formally archived in accordance with the exemptions provided for ‘archiving in the public interest’ then there is an exemption from the right to be forgotten. There is also a potential exemption from subject access requests e.g. depending on the extent to which the record is accessible/structured. The new draft archival guidance in this sphere states, that whilst archives may not be legally required to respond a subject access request they can choose to do so “especially when an individual’s rights or entitlements seem to be at stake”. The guidance is currently open for comment at http://www.nationalarchives.gov.uk/documents/information-management/guide-for-public-comment.pdf .
In conclusion, whilst the new legislation offers a step forward more specific guidance is needed to make change. Care leavers are owed more personalized consideration and regulation or at least clearer tailored guidance. I hope that through this project and other related research this can be achieved.
Everyone deserves knowledge of their childhood and control over their own childhood records!