In child abuse cases we routinely ask for many types of personal records, not only to find evidence of abuse, but also to track the psychological damage to the client. Local authorities routinely redact any thirdparty information that can hide evidence to corroborate the abuse, particularly where contemporary home records of incidents survive with vital witnesses redacted. Additionally, the experts have to guess who lies below the redaction with the consequence that their prognosis may be wrong.
In a recent child abuse case where the client was physically assaulted at a home in the North East between 28 to 30 years ago (Dunn v Durham County Council (2012) Manchester County Court (unreported)), many contemporary records of alleged assaults and complaints made by the client with the names of other potentially corroborative residents were disclosed. The names of the other boys were redacted. This meant that the defendant authority had an advantage. They could interview and discard the witnesses without telling us, and we would never know.
When we reached the disclosure stage the defendants objected to providing any thirdparty names, on the grounds of the Data Protection Act 1998. They argued successfully before the district judge that the details should remain secret on the grounds that, even in later life (they would now be adults), it would be insensitive to disclose their former life in care, simply to benefit the claimant’s legal case. We appealed to the county court judge and won. The names should have been disclosed. The probative value of the evidence prevailed.
Data protection guidelines
The Data Protection Act protects the personal data of a subject by preventing third parties accessing it without consent. Guidelines oblige the data controller, or local authority in this case, to attempt to seek the consent of any third parties referred to, but subject to the proviso that this is not necessary for employees or where the records are very old and the third party likely to be dead or untraceable.
If the third party is untraceable, or does not consent, then the recommendation is that the names are redacted. So time consuming would be the job of contacting everyone and so limited is the time period allowed for disclosure (four weeks) that the local authorities do not bother to contact anyone. The appropriate sanctions are set out in sections 7(1), (4) and (5) of the Act.
The process of going through voluminous records is expensive and time consuming enough as it is. One therefore receives records with many redactions sometimes running to so many pages that they are unintelligible.
One has to rely upon the correct application of the guidelines, and the accuracy of the redacter. In Dunn the defendant solicitor, when pressed, admitted to mistakes having been made.
The amount of money and time spent nationwide by local authority record departments on redaction, only in legal cases, must run to thousands of pounds per year.
Section 35 of the Data Protection Act 1998 exempts legal proceedings from the provisions of the Act. It states: “(2) Personal data are exempt from the non-disclosure provisions where the disclosure is necessary–
(a) for the purposes of, or in connection with, any legal proceedings (including prospective legal proceedings), or
(b) for the purpose of obtaining legal advice…” There could not be a clearer statement of legal principle. My argument was that this section of the Act applied to allow disclosure of unredacted records. One has, however, to go further, once proceedings have been issued, to examine rule 31 of the Civil Procedure Rules and the application of the rules of public interest immunity (PII).
CPR disclosure process
The appropriate procedure is for the defendant to object to disclose in full any documents he wants to redact; CPR 31.3 obliges a party to allow inspection of a document. The right to inspect is curtailed where “(b) the party disclosing the document has a right or a dutyto withhold inspection of it”. CPR 31.19 describes the process of asserting PII.
CPR 31.22 states: “The court may make an order restricting or prohibiting the use of a document which has been disclosed, even where the document has been read to or by the court, or referred to, at a hearing which has been held in public.”
There is inevitably a tension between the provisions of the Data Protection Act 1998, the Civil Procedure Rules and PII. Although there is authority for the disclosure of the police statements of allegedly assaulting prison officers (Rowe & Ors v Fryers & Anor: Frankson v Secretary of State for the Home Department& Anor  EWCA Civ 655), there seemed to be no available authority on redaction of social care records in litigation. The point needed resolving.
Two cases where a request for documents of a commercial nature had been refused by two data controllers then appealed by way of an application permitted by the Act were cited. In these cases the relevance of litigation was not the issue. In both cases the claimant failed to achieve disclosure of the documents he was seeking (Johnson v Medical Defence Union  EWHC 2509 (Ch) and Durant v Financial Services Authority  EWCA Civ 1746). The differences between pre and post-proceedings were highlighted. The importance under CPR of not hiding evidence was obvious. The defendants also cited an old wardship case on the non-disclosure of care records (Re M (a minor)  2 FLR 36 (CA). The cases were distinguished on the grounds that they were not tortious disputes of assault and child abuse, therefore the issues were different.
What to consider
In Dunn, Judge Armitage outlined what he thought was the correct approach:
- Concentrate on the application of CPR and whether the documents are disclosable.In this case they undoubtedly were.
- Consider whether the applying party needed the data for a section 35(2)(a) and/or (b) purpose. Inevitably in this case the evidence may support or undermine the claimant’s case and as such was relevant.
- Consider whether third-party rights are engaged.
- Take into account also that even if rights are not engaged whether revelation of information to a wider audience may be against the third party’s wishes and interests and have potential to cause harm.
- Balance the prejudice to the applying party of being deprived of information against the prejudice to the third party as a result of the disclosure.
On a wider perspective there is obviously a huge saving to be made if local authorities do not have to redact records for solicitors. There is clearly a big distinction between the disclosure of modern-day records in a child care case which involves the disclosure of the identity, for example, of the member of the family who complained about the lack of care, and a 30-year-old child abuse compensation case where records revealing the identity of former care residents, who will now be adults, is sought. The problem is that local authorities seldom appreciate the difference. The defendants have said that they will apply to the Court of Appeal for leave to appeal.
This article was first published by Solicitors Journal on 22 May 2012, and is reproduced by kind permission.