July 2018: This chapter has been amended to reflect changes to data protection legislation. In particular Section 4, Making an Application and Section 4, Timescales have been updated.
Data protection legislation (see Data Protection chapter) specifies the duties of local authorities and other agencies in relation to holding, storing and processing of the personal data of living individuals (referred to within the Act as data subjects).
The legislation terms people who request information from the council that it holds on them ‘data subjects’.
The Act terms staff who control the manner and the purpose of personal data processing ‘data controllers’ and allows data subjects to know about and obtain information held on them by the local authority and other agencies.
It also gives data subjects the right to:
- know about and obtain information held on them by the local authority and other agencies;
- to consent to their information being held; and
- to be forgotten (have their information deleted) in relation to the data held about them.
Such information will either be held on IT databases or in hard copy.
2. People Eligible to Request and Receive Information
In most circumstances it is only people (data subject) who the council holds information on who are allowed to receive information held about them by the local authority. The information provided by the local authority must only relate only to them and no one else.
If a solicitor makes a request on behalf of a client to access their case records, the solicitor must obtain written consent from the adult which allows the solicitor to receive the information. This consent must be sent to the local authority as part of the application.
Although there are no specific provisions in data protection legislation regarding access of records in relation to people who lack capacity, the Mental Capacity Act 2005 enables a third party to exercise subject access rights on behalf of such an adult. It is reasonable to assume, therefore that an attorney with authority to manage the property and affairs of an adult will have the appropriate authority. The same applies to a person appointed by the Court of Protection to make decisions about such matters.
3. Information People are entitled to Receive
In theory people (the data subjects) are allowed to receive all non-exempt information (see 3.1 Exempt Information below) held about them by the local authority. People making such requests should be asked what information they specifically want to see. This will reduce the likelihood of a request being denied due to the inclusion of exempt information.
3.1 Exempt Information
In some circumstances it may not be possible to allow people to access to some or all of the information in their records, for example if it mentions another person (see 3.2 Third Party Information below), if giving them the information may cause them harm, or if it is needed for the prevention or detection of a crime. The person should usually be told the reason why it is not possible for them to access their records.
Correspondence between local authority departments and its legal services department is privileged and therefore also exempt from disclosure.
3.2 Third Party Information
Responding to a request may involve providing information relating to another individual who can be identified from that information. This is third party information. In most cases, the local authority will require written consent of that third party before disclosing the information to the data subject.
4. Making an Application
Requests for access to information are called ‘Subject Access Requests (SARs)’. These must be made in writing in relation to information held by the local authority on the person. For more information and a suggested template letter see Find out how to Request your Personal Information.
The local authority must provide a copy of the information free of charge. It can charge a ‘reasonable fee’, however, when a request is manifestly unfounded or excessive, particularly if it is repetitive. It can also charge a reasonable fee to comply with requests for further copies of the same information (this does not mean that it can charge for all SARs). The fee must be based on the administrative cost of providing the information.
4.1 Requests that are manifestly unfounded or excessive
Where requests are manifestly unfounded or excessive, in particular because they are repetitive, the local authority can:
- charge a reasonable fee (as above); or
- refuse to respond.
Where it refuses to respond to a request, it must explain why to the individual, informing them of their right to complain and to a judicial remedy without unnecessary delay and at the latest within one month.
The local authority has one month to respond to a written request. This allows time for personal information to be collated all involved departments within the local authority, analysed to ensure it does not contain exempt information (see 3.1 Exempt Information) and decisions made about whether there is such information that cannot be given to the person.