10 February 1989

Dear Sir or Madam

ACCESS TO PERSONAL FILES (SOCIAL WORK) (SCOTLAND) REGULATIONS 1989

Summary

1. The circular provides guidance to local authorities and Health Boards on the Regulations made by the Secretary of State under section 3 of the Access to Personal Files Act 1987 which provides for an individual’s right of access to personal information held on manually maintained social work records. It is intended that the regulations will come into force on 1 April 1989. Copies of the draft Regulations are attached for Chief Executives and Directors of Social Work and Health Board General Managers: further copies may be obtained from HMSO. The Age of Legal Capacity (Scotland) Act 1991 and the Local Government etc (Scotland) Act 1994 have implications, respectively, for rights of access and the transfer of responsibilities from old to new authorities and new guidance will be issued which incorporates these provisions.

The Regulations

2. The regulations make such provisions as the Secretary of State considers appropriate for securing access by individuals to personal information, subject to certain exceptions and restrictions, and imposes requirement on local authorities comparable to those already in existence for automatically processed records under data protection legislation.

Scope

3. The regulations will apply to requests for access by individuals or their agents to personal information held in manual records maintained by local authorities for their social work functions as defined in the Social Work (Scotland) Act 1968. They do not affect a person’s existing rights under the Data Protection Act 1984 to have access to personal information maintained in automatically processed records held by local authorities for the same purposes. Local authorities’ obligations in respect of subject access extend beyond the personal files of individual social work service users and include all personal information held by the authority in any manually recorded form from which an individual can be identified as being the subject.

Requirements

4. The requirements imposed on local authorities by the regulations are intended to provide for a simple and easily understood scheme of access. It is considered that the

regulations will restrict access or exempt personal information from disclosure only in exceptional circumstances: they provide for revision of the local authority’s decision in response to an access application. Local authorities are required to rectify or erase inaccurate records, or to note the record accordingly where there is disagreement as to the accuracy of the record.

Resource Implications

5. The resource implications of these Regulations for local authorities should not be significant, and authorities should aim to cover their costs so far as possible through fees. Though they will no doubt want to take account of a person’s ability to pay, authorities have the discretion to charge up to £10, and charging policy should generally be aimed at recovering costs. Insofar as fee income does not meet the costs arising, the very favourable RSG settlement for 1989-90 should provide sufficient scope to meet the difference. Such costs can also be considered in the round of discussions with the Convention of Scottish Local Authorities on the revenue support grant settlement for 1990-91.

Guidance

6. Guidance on granting access to personal information under the regulations is set out in the Appendix to this circular. This recognises the similarities between this legislation and that on data protection and is closely aligned to the Data Protection Registrar’s Guideline 5 (Revision 1): "Individuals’ Rights".

Action

7. Local authorities are asked to bring this circular to the attention of staff whose work includes maintaining manual records of personal information for social work purposes. Local authorities should arrange appropriate local publicity on the right of access to personal information under the Act. This should tell people how to apply for access and the safeguards which apply.

8. Any enquiries about the circular and appendix should be addressed to Mr S Bond, Social Work Services Group, Room 40A, James Craig Walk, Edinburgh EH1 3BA (Telephone 0131 244 5493).

Access to Other Records

9. The Government is consulting, or has consulted, on providing for access to the records of school pupils, further education students and certain housing tenants. Regulations are expected to be made later this year.

Confidentiality of Information

10. A separate circular, SW1/89, issued on 6 February gave guidance on the handling of personal information maintained on social work records and the extent to which disclosure to third parties is permissible.

Yours faithfully

A SKINNER

APPENDIX TO SW2/89

ACCESS TO PERSONAL FILES (SOCIAL WORK) REGULATIONS 1989

GUIDANCE NOTES

Contents Paragraph Number

Introduction 1

The Framework

Who has a right of access 2-3

Information involved 4-10

Form of request 11

Response to a request 12-13

Fees 14-15

Time limit 16

How access is given 17-20

Review of a local authority’s decision 21

Particular Elements of the Access Procedures

Identifying the individual 22-25

Locating the personal information 26-28

Information relating to a third party 29-32

Local authority employees and service providers 33-35

Children 36-40

Request through an agent 41

People with mental disorders 42

Correction or erasure of inaccurate personal information 43-44

Exemptions 45

Risk of serious harm 46-48

Prevention of crime etc 49

Adoption records 50

Legal Confidentiality 51

Information from Reporters to Children’s Panels 52-54

Personal health information 55

Information from Health Professionals 56-60

Information from Others 61

Access procedures 62

Records of Information withheld 63

Annexes Annex

Social Work (Scotland) Act 1968: Social Work Functions A

List of categories of health professionals B

Definition of "appropriate health professional" C

ACCESS TO PERSONAL FILES (SOCIAL WORK)

(SCOTLAND) REGULATIONS 1989

GUIDANCE NOTES

Introduction

1. The Access to Personal Files Act 1987 in its application to social work records reflects recent developments in professional practice towards more open relationships with clients. The Access to Personal Files (Social Work (Scotland) Regulations made under section 3 of the Act are similar to those introduced in England and Wales. These guidance notes advise on the operation of the Act and the regulations together. They relate to formal applications for access under these provisions and do not cover, nor seek to compromise, the regular informal sharing of information which is an essential element of good social work practice.

The Framework

Who has the right of access

2. The regulations require local authorities on receipt of a written application to inform an individual, whether a user of its social work services or not, of any personal information about him held in any manual record maintained for the purposes of their social work functions. Accessible information is not restricted to that held on a personal file in the name of the individual making the request; it covers all personal information about the individual however or wherever held. But an individual is not entitled to know what is recorded about another person: where a file relates to another or a number of persons the guidance at paragraphs 29 to 32 below regarding the protection of third party identity is of particular importance.

3. Persons acting is an official capacity for a local authority have no right of access to personal information about themselves (see paragraphs 33 to 35 below). This includes employees and carers "rewarded" by the authority. Other carers not so "rewarded" will have the rights of access conferred by the regulations.

Information Involved

4. The 1987 Act applies to personal information contained in manual records maintained by a local authority for the purposes of its social work functions as defined in the Social Work (Scotland) Act 1968 (the list of enactments referred to in section 2(2) of that Act as amended is at Annex A). It does not apply to:

(a) automatically processed records as defined by the Data Protection Act 1984,

(b) the records of voluntary organisations or other bodies, even where they are directly involved with a local authority in the provision of a social work service.

(c) the records maintained by Reporters to Children’s Panels (see paragraphs 52 to 54 below), and

(d) the records of persons in prison or in the State Hospital where local authorities act on behalf of the Secretary of State.

The Secretary of State is considering providing for access by administrative means to the records maintained on his behalf of persons in prison. As regards the social work records of persons in the State Hospital, local consideration will be given as to whether access can also be provided by this means.

5. Where, however, the local authority holds a record containing personal information of which an offender is the subject and the local authority is not maintaining the record on behalf of the Secretary of State that information is accessible. This would apply to, inter alia, persons on parole or probation. In the first of these, the record may include a dossier extracted from the record maintained by the Secretary of State. Authorities should exercise particular care if providing access to this information.

6. The term ‘manual records’ mean all records not automatically processed. They include files, reports, day books, card indexes, documents and all other written, typed or other manually maintained forms of record, containing all or part of the personal information relating to an individual held by the local authority, wherever the record is held. The definition of manual records also includes audio and visual recordings. Personal information may be held in a variety of locations including area offices, social work establishments, in the offices of hospital social workers: premises outwith those of the local authority itself are not excluded.

7. Certain personal information is exempt from the provisions for access under the regulations. The relevant exemptions provided for in Regulations 8, 9 and 10 are explained at paragraphs 45 to 60 below. If one or more of the exemptions applies, the local authority is not required to allow access to the relevant information.

8. Section 2(2) of the Act specifies that "personal information" means information relating to a living individual who can be identified from that information alone, or from that and other information in the possession of the local authority, including any expression of opinion about the person but not any indication of the intentions of the local authority towards him. Local authorities are not prevented from letting an individual know what its intentions are, and it may indeed be considered good practice to do so.

9. Section 2(4) of the Act requires a local authority to make available information recorded before the regulations come into force only if such information is necessary to make intelligible the accessible personal information recorded on or after that date. Authorities can, if they wish, provide more information than required by this section of the Act to enhance the individual’s understanding.

10. Staff of local authorities, health boards and other organisations often work in close collaboration and in some settings such as child guidance units and community mental health teams may maintain joint records. Local authorities should establish clear arrangements to ensure proper access to those parts of the record covered by the Act. Whether or not the personal information recorded falls within its terms must be considered as a matter of fact, depending upon the details of the arrangements in each case. Legal advice should be sought if doubts arise about what constitutes the social work record.

Form of Request

11. Regulation 3(1) requires that formal requests to a local authority for access are to be made in writing. The local authority may make available a standard form of request (including the details necessary to identify the applicant and to locate the information held) but cannot insist on its use. This will help to ensure that all the information is necessary to progress a request for access is available at the outset. It is recognised that some individuals may have difficulty in making a written request: arrangements to facilitate obtaining access in such cases are set out in paragraphs 36 to 42.

Response to Request

12. Regulation 2 entitles an individual who makes a request for access to personal information held by a local authority:

12.1 to be told by the local authority whether or not it holds any personal information relating to him (see paragraph 16 below); and, if it does,

12.2 to have access to any accessible personal information and be supplied, on request, with a copy of all or part of the record.

13. If no personal information is held about the individual, or if all the personal information is restricted by one or more of the exemptions, it is sufficient to respond to the effect that the information held does not include personal information which the local authority is required to disclose. The local authority is not required to state that it holds personal information to which access is restricted by an exemption provision in the regulations but may do so. Authorities should recognise that in some cases it will be harmful to a person to hear that information is being withheld; in other cases this will not be a consideration. Authorities will have to judge for themselves the most appropriate course of action in the light of the circumstances of the particular case (see also para 31).

Fees

14. Regulation 3(1) allows a local authority to charge a fee not exceeding a maximum of £10 for each access application. The local authority has discretion over what fee, if any, to charge within that limit and will clearly wish to consider the individual’s ability to pay.

15. If a local authority requires a fee and receives a request without payment, it is required to inform the applicant of the relevant charge. This action does not delay the start of the appropriate 40-day period (see paragraph 16 below) within which the local authority is required to respond to the application. The local authority is not required to supply personal information to any individual before payment of the required fee.

Time Limit

16. Authorities should seek to respond to the requests as soon as possible. Regulation 6 requires them to respond within 40 days of receiving a request for access. The appropriate 40-day period does not start until the local authority has, where necessary, received:

16.1 information reasonably required to identify the individual to which the application relates (see paragraphs 22 and 23 below)

16.2 information reasonably required to locate any relevant personal information (see paragraphs 26 to 28 below)

16.3 consent required from third parties (see paragraphs 29 to 32 below) for any information which cannot be made anonymous.

How Access is Given

17. If personal information not covered by an exemption is held, the local authority is required to grant access to it. This can be met by supplying a copy of the information. Where, however, access is provided otherwise, for example by letting the individual see the information on the record, a copy of all or part of the information must be supplied if requested.

18. If any of the information recorded is not intelligible without explanation, the local authority is required under the regulations to give an explanation. This will apply, for example, if the local authority holds information in coded, diagrammatic or abbreviated form or in jargon which cannot be understood without the provision of additional information or guidance.

19. Most of the information made available from the records will probably be known to the person concerned already. Even so, there may be advantage in a member of the social work department’s staff being available to assist the individual in assimilating the material. Local authorities should consider whether to make available counselling, interpretation and support to enable individuals to understand fully and make positive use of the records relating to them. Particular care should be taken to provide skilled counselling - preferably by someone known to and trusted by the individual - where there is any possibility of him or another person suffering serious harm (see paragraphs 46 to 48) as a result of information becoming available to him or her.

20. Regulation 7 provides for personal information given in response to a request for access to be that recorded from the date of the regulations coming into force, up to the date on which the request is received. Amendment to or deletions from that information may continue between the date of the request and the date of the reply where this would have been made regardless of the request for access. The information disclosed to the applicant may therefore differ from that which was held at the time of the request. The local authority must not however make any amendment or deletion in order to make the information acceptable to the applicant.

Review of the Local Authority’s Decision

21. Regulation 12 provides for an applicant dissatisfied with a local authority’s decision on his request for access or rectification or erasure of information, to make representations to a committee of the local authority. The committee must comprise a maximum of 3 members, not more than one of whom may be a member of the social work committee. Where the applicant wishes to make oral representations, the local authority must give him an opportunity of appearing and being heard. This request must be made within 28 days of the applicant receiving the local authority’s response to his request for the information. Aggrieved persons have existing legal rights to apply to the courts for a review of the local authority’s decision or, in the case of suspected maladministration, to the Commissioner for Local Administration in Scotland.

Particular Elements of the Access Procedures

Identifying the Individual

22. The local authority will need to satisfy itself as to the identity of the individual making a request for personal information; where a person’s identity is uncertain, the local authority should inform the applicant of what additional information is required to establish this identity. If the local authority does not do this within 40 days of receiving the application, it will have failed to comply with the request.

23. The applicant should provide any information which the local authority may reasonably require for this purpose. Where the person fails to provide such information, the regulations do not require the local authority to comply with the request for access. In such cases the authority should advise the applicant that they are unable to proceed with the request.

24. If the personal information held is not considered to be sensitive and a copy of this information is specifically requested to be sent to an address known to the local authority to be that of the individual, the signature of the person may be sufficient proof of identity. Although the posting test may be one means of the authority satisfying themselves as to the authenticity of the applicant, it is not suggested that posting its response to an access request should be the norm. If the information is considered sensitive to the extent that its unintentional disclosure to a person other than the subject would be likely to cause damage or distress, the local authority may reasonably require positive proof of identity.

25. If there is reason to suspect that a person has improperly made a request for access in the name of another individual, the matter should be referred to senior management and appropriate legal advice sought. The local authority may consider reporting the matter to the police.

Locating the Personal Information

26. The local authority may need more information from the applicant in order to locate any relevant personal information. The local authority should inform the applicant of the information necessary. Where the local authority does not do so within 40 days of receiving the application, it has failed to comply with the request for access. The local authority is entitled to refuse access only if it is reasonable to require the additional information from the applicant. Authorities should exercise discretion in the amount of information they seek, particularly where, for example, the applicant is suffering from a mental disorder, so as not to inhibit the request for access.

27. The following considerations will be relevant in deciding whether such a request for additional information is reasonable:

27.1 Can the individual be expected to give or obtain the additional information?

27.2 Can the local authority locate any information about the individual without the additional information?

27.3 If the local authority obtains the additional information, will the task of locating the relevant personal information be significantly reduced?

28. The following are examples of the sort of information which might reasonably be required of an applicant in order to locate personal information:

28.1 Which services of the social work department the individual has used or received.

28.2 Which offices or establishments of the local authority the individual has had contact with.

28.3 If the individual has not received services from the local authority, whether he is related to a person who has received services or is involved with such a person and, if so, the name of that person.

28.4 Other personal details which will positively establish the individual’s identity and avoid confusion with records on other persons with the same or a similar name.

Information relating to a third party

29. The personal information recorded by a local authority about an individual may relate in part to another person or reveal another person as its source, or enable the identity of another person to be disclosed to or be deduced by the applicant without that person’s consent. Regulation 5 requires the local authority to protect his or her identity unless that person has given prior consent to the disclosure, except where the third party is acting in an official capacity as a health professional or an employee of the local authority, or performing a social work service for reward by the authority (see paragraphs 33 to 35 below).

30. Where third party consent to disclosure is necessary. Regulation 5 requires the local authority to seek the consent of that person within 14 days of receiving the request for access or of receiving any further information required to identify the individual to which the application refers or locate the information, and has, under Regulation 6, 40 days from the date of consent within which to allow access. If the local authority does not receive the consent within 40 days of receiving the request for access, Regulation 10(3) requires them to give whatever information they can to meet the applicant’s request, without disclosing the third party’s identity or revealing him as its source. Thus, the substance of the information but not its source or parties named in the record, can be disclosed without waiting for consent. In considering whether the identity of a third party may be deduced, a local authority should take account of whatever knowledge it is reasonable to assume that the applicant already possesses, apart from the personal information which is the subject of the request. Restricting the information in these circumstances should however be exceptional.

31. The local authority is not required to explain to the applicant why part of the information has not been disclosed but it may do so. It may often be apparent to the individual that some information has been withheld and unless some explanation is offered the applicant may feel that he has not had a proper response to his request.

32. Any editing of information to protect a third party’s identity or prevent it being deduced should aim to produce the minimum of alteration. Original documents should not be permanently altered.

Local Authority Employees and Service Providers

33. Regulation 10 3(a) provides that a local authority cannot deny or restrict access where the third party whose identity would be disclosed is a person providing information in an official capacity or in the provision of a service under either of the following descriptions:

33.1 as a present or past employee of the local authority in pursuance of its social work functions, or

33.2 in performing or having performed for reward direct from the local authority a service the same as or similar to a social work function of the local authority itself.

34. The second group excludes unpaid, informal carers but would include foster parents, childminders or other carers who receive an element of reward. ‘Reward’ might, for example, apply to retention payments in certain cases, such as those to secure the ongoing availability of such carers, but where no children are meantime placed with them or where boarding allowances which reflect the individual needs of children include additional reward elements in recognition of particular skills. However, a person merely reimbursed travelling and other expenses or in receipt of an honorarium (for example, a volunteer worker with no service contract with the authority) would not be included. This also applies to foster parents receiving only an allowance which specifically and exclusively recognises the needs of the child. Whether or not a person is regarded as a "rewarded" carer depends on the specific contract with the local authority. Local authorities should therefore consider taking legal advice where contractual relationships are not clear and consider the possible revision of contracts where difficulties are perceived. In any event local authorities should ensure that carers are fully advised of the implications for them of the regulations.

35. A local authority may protect the identity of a person who does not fall within the categories described in paragraphs 33.1 and 33.2 above. A carer might act in one or more capacities at the same time, for example the local authority may protect that person’s identity will depend upon the capacity in which the person providing the information or named was acting. If there is doubt, the local authority should seek legal advice.

Children

36. Requests from children for access to personal social work information should be treated in accordance with the existing law of Scotland and the legal capacity of each child. Where the child is a pupil (a girl aged under 12, or a boy aged under 14) any legal right conferred by the Act can be exercised only by the tutor (normally a parent). The local authority should treat with particular care requests for information from a natural parent who may be living apart from the child. There may be situations where access to simple information, eg the child’s address, could cause serious harm to the child; authorities should therefore exercise caution so as to protect the child’s interest. Where the child is a minor (a girl aged 12 to 18 years or a boy aged 14 to 18 years) he or she may exercise any legal rights conferred by the Act. As the right being exercised is statutory and not contractual the consent of the curator (normally a parent) to the minor child’s request for access to information is not required.

37. In some circumstances there may be doubt as to whether a minor child has the mental capacity to make a request. In such instances, a local authority is required to recognise that the test of mental capacity for the purposes of the regulations is a modest one and that the minor child’s legal rights are the same as those of an adult. The ability to complete an application form or make out a written request which is coherent may be sufficient. Where a minor child has insufficient mental capacity to make a personal application, the guidance at paragraphs 41 and 42 below) is relevant.

38. No person, including a minor child’s parent or other curator, may exercise the right of access to personal information about that child without the child’s informed consent. It is for local authorities to satisfy themselves on this account. If a local authority complies with an unauthorised request it might be liable to an action for compensation for breach of confidence.

39. Parents and other curators may make a subject access request in respect of information held about themselves on the child’s file.

40. References to "parent", "tutor" and "curator" above are intended to include any persons at the time of the request who had acquired an interest by process of law, and specifically includes adoptive parents and local authorities. Such terms do not include natural parents whose rights have been lost under any statutory provision.

Request through an Agent

41. Any competent adult or minor child may make a request for access through an agent. A local authority receiving such a request must respond where it is satisfied that the person has authorised the agent to make the application. It is the agent’s responsibility to produce satisfactory evidence that he has such authority. This may consist of a written authority signed by the individual, either limited to this particular application or more generally, or a general power of attorney. It is also possible for a person to assume responsibility for another’s affairs (on a temporary or permanent basis) without any particular authority but who would reasonably expect to get that authority if they applied. In some cases it may be necessary for the authority to seek legal advice as to whether the agent can be regarded as having been properly authorised to act in the individual’s interest. members of Parliament have no particular rights of access to information about others. They may, however, act as an agent in the same way as other interested persons provided, of course, that the local authority is satisfied as to their having been authorised to act on the individual’s behalf.

People with Mental Disorders

42. No special provision is made in the regulations about requests for access in respect of person with mental disorders. Many such people will be perfectly capable of seeking access on their own account. Others may need assistance and applications on their behalf be made in the appropriate circumstances by a person appointed to act for them as a curator bonis, tutor or judicial factor - or simply by a friend, relative, or other person acting in their interest. In cases where the subject is a minor child, what is said about access to information in paragraphs 36 to 40 above applies. It has to be acknowledged that people who are profoundly handicapped or suffering from chronic mental health problems may not be able to signify consent for an agent to seek access on their behalf. In such circumstances the local authority will wish to satisfy itself that the agent is acting in the interest of the person and may be guided by the views of the mental health officer or of staff in other caring agencies who provide services and who know the individual concerned.

Correction or Erasure of Inaccurate Personal Information

43. Where a person considers all or any part of the personal information disclosed to him is inaccurate, Regulation 11 provides for application to be made to the local authority for the record to be corrected or erased. The request should include sufficient information for the authority to locate the information believed to be inaccurate; specify in what respects it is felt to be inaccurate; and state what needs to be done to rectify the information (ie by amendment or deletion or by supplying a corrected version). The individual may supply any written material in support of his/her view. If the local authority agrees that all or part of the personal information is inaccurate, it must correct or erase such information. It is required to supply the individual, if so requested, with a copy of the corrected information or the record from which it has been erased.

44. The term ‘inaccurate’ relates only to facts. An opinion, which does not purport to be a statement of fact may not be challenged on the grounds of inaccuracy. However, where an authority agrees that information is inaccurate it must rectify or erase any opinion based on the inaccurate information. Differences of view require to be noted on the record. Where an authority reflects inaccurate information or notes a difference of view, they are to provide access to the corrected information or the written note, without payment of any fee.

Exemptions

45. Certain personal information is exempt from the subject access provisions of the regulations and these modifications to the individual’s right of access are dealt with in paragraphs 46 to 60 below. If one or more of the exemption applies, the local authority is not required to allow the applicant access to the relevant personal information. Local authorities will wish to consider carefully withholding information under any of these exemptions: the decision should ultimately rest with senior management.

Risk of Serious Harm

46. Regulation 10(2) provides for access to personal information to the restricted where access to information by the subject is considered by the local authority to be likely to result in serious harm to his physical or mental health or emotional condition, or that of some other person. ‘Other person’ may include staff of the authority.

47. It may be difficult to decide whether giving access to certain information might result in serious harm. There is no general test: decisions can be made only on a case by case basis. Where there is concern about possible serious harm the local authority should recognise that the fundamental principle underlying the right of access provided by the Act is that individuals should be able to know what is recorded about the Act is that individuals should be able to know what is recorded about them - hence the restriction is confined to serious harm. Withholding of information for this reason would be expected to be exceptional.

48. The exemption may be relevant, for example, where there is a risk of child abuse or neglect, or where the individual has a mental disorder. It is important to enable individuals requesting access to come to terms with such facts concerning their situation as are recorded but this requires caution, and sometimes prolonged counselling. A minority who are unstable, or have little insight, may exceptionally need long-term protection from certain revelations which might result in serious harm if divulged. Where all or part of the personal information held on an individual at the time of the request for access is considered likely to cause serious harm and disclosure is accordingly restricted, it is a matter for professional judgement as to whether the relevant information may be disclosed at a later date.

Prevention of crime etc

49. Regulation 10(4) provides for personal information to be exempt from access it if is held for the purposes of the prevention or detection of crime or the apprehension or prosecution of offenders, and access to it would be likely to prejudice one of those purposes. This applies equally to information received from another organisation such as the police and to that originating in the local authority itself. Again, use of this exemption should be exceptional: legal advice should be sought where doubts exist.

Adoption etc Records

50. The regulations maintain existing statutory restrictions on disclosure as follows:

50.1 the Registrar General’s records enabling him to connect any entry in the Register of Births with a corresponding entry in the Adopted Children Register. An adopted person can continue to obtain his original birth record as provided by section 45 of the Adoption (Scotland) Act 1978;

50.2 all records held by adoption agencies under the Adoption Agencies (Scotland) Regulations 1984;

50.3 any report provided Rules of Court by a voluntary adoption agency, a local authority, a curator ad litem or a reporting officer to a court in adoption proceedings;

50.4 records of the special educational needs of a child or young person made under the Education (Scotland) Act 1980.

Legal Confidentiality

51. Regulation 10(6) provides for personal information to be exempt from access if it consists of information in respect of which a claim to confidentiality as between client and professional legal adviser could be maintained in legal proceedings. Such instances should be rare. One example might be where the authority’s lawyers have advised that a report be made to the Procurator Fiscal with a view to the prosecution of an individual and revealing this could prejudice the case against that individual. Consultation with legal advisers would seem to be a pre-requisite of the use of this exemption.

Records of Reports to Children’s Panels

52. Records held by reporters to children’s panels do not come within the scope of the Act and nether the Act nor the Regulations place any duties upon reporters to disclose information held by them in pursuit of their statutory functions. Reporters will continue to have discretion in these matters, subject to the existing rules on disclosure of information contained in the Children’s Hearings (Scotland) Rules 1986.

53. In the case of a social background report, prepared at the request of the reporter under section 39(4) of the 1968 Act, the social work department will have a duty to disclose the contents of such reports at the request of any individual who is the subject of information in the background report. Before disclosing information, the local authority will have to apply the tests on exemption of information referred to in paragraphs 46-51 of these guidance notes. The introduction of the regulations about disclosure may have implications for Rules 19(3) and 21(4) of the Children’s Hearings (Scotland) Rules 1986 which place a duty on the chairman of a hearing to inform the child and parent of the substance of any report, including a social background report, which the hearing may have before them as part of the papers supplied by the reporter. The Secretary of State will consider in due course whether the 1986 Rules require to be amended.

54. Regulation 9 places a duty on the social work authority with regard to any information in the possession of the authority which has originated from, or been provided by, the reporter in pursuit of his statutory duties. If the social work authority receives a request involving access to such information it must inform the reporter in writing within 14 days and seek his consent to disclose information. The reporter can refuse access to information which is his view would cause serious harm to the health or emotional condition of the individual the subject of the information, or some other person; disclosure of the identity of a third party; or prejudice the prevention or detection of crime or the apprehension of offenders. If a situation where the reporter has exercised his right to have information exempted from access by the individual the social work department must abide by his decision but is still required to disclose as much information as may be provided without infringing the tests which the reporter has applied. Should the reporter’s consent not have been received before the 40th day following receipt of the request for access the local authority must provide access. In practice, therefore, these arrangements call for close co-operation between reporters and social work departments to ensure that no confusion arises over the extent of information to be withheld or disclosed.

Personal Health Information

55. A distinction requires to be made about information concerning a person’s health held for the purposes of the local authority’s social work functions. That distinction is between:

55.1 personal health information supplied, or known, or believed to have originated from or be provided by, or on behalf of, a "health professional" acting in a professional capacity, and

55.2 so as not to reveal the identity of another individual without his prior consent (see paragraphs 29 to 32 above).

The terms "health professionals" and who is an "appropriate health professional the local authority should:

(a) where the information originated from (or was believed to have done so) a health professional in the course of his employment with a health board, write to the Board informing them of the request. The health board will then contact the appropriate health professional for a decision on the provision of health information.

(b) where the information came from another health professional, for example a GP, write direct to the health professional.

58. The local authority is required under the regulations to do this within 14 days of receiving the request or of receiving the additional information necessary to identify the individual or locate the information (see paragraph 30). The local authority should make clear that if no response to the request is received within the 40 day time limit the local authority is required to provide access to the applicant.

59. The local authority is required to adhere to the advice of the "appropriate health professional" to withhold or edit the personal health information. Moreover, the exemptions available to the local authority under regulation 10 do not extend to information from a "health professional". Individuals who seek explanation or amplification of any personal health information disclosed should be advised to discuss the matter with the "appropriate health professional".

60. These arrangements call for close co-operation between local authorities and, particularly, health boards. These can best be determined locally: they may be in common with procedures already in existence to deal with the requirements of the data protection legislation, both in relation to how a local authority handles an application for access involving personal health information and, within the relevant health board, how that request for advice is processed through to a response.

Information from Others

61. Information about an individual’s health which does not originate from a health professional may consist of observations or personal opinion by, for example, social workers or other local authority officers, someone unrelated to the local authority such as a relative of the person or another professional or the subject himself. Such information may be of a general nature or be specific concerning an individual’s apparent physical or mental state or emotional condition but would not be necessarily be the view of a health professional. Information of this nature will be accessible subject to the requirements concerning the protection of a third party’s identity (see paragraphs 29 to 32 above), or serious harm (para 46), and does not fall within the terms relating to "personal health information" (see paragraphs 55 to 60 above).

Access Procedures

62. Local authorities may require to amend their existing procedures where necessary to enable them to comply with the provisions of the Act and regulations. In doing so, they should make arrangements for identifying members of senior management authorised to decide what information should be restricted under the terms of the regulations, to consult with health boards or health professionals concerning personal health information, and Reporters to Children’s Panels. The arrangements should also include procedures for deciding whether a child or curator has made a valid request for access (see paragraphs 36 to 40 above) and arrangements for joint working (para 10). In deciding whether to withhold or restrict information in any situation, the local authority should always consider whether it is advisable to seek legal advice.

Records of Information Withheld

63. Local authorities should consider maintaining a record of requests where it has been necessary to withhold or restrict personal information because access would be likely to result in serious harm. It would be good practice to review such cases periodically to ascertain whether the grounds for use of the exemption remain good.

ANNEX A

SOCIAL WORK (SCOTLAND) ACT 1968: SOCIAL WORK FUNCTIONS

1. For the purposes of the Access to Personal Files (Social Work) Regulations 1988 the terms "local authority" and "social work authority" have the meanings attributed to them by paragraphs 2(2) and (4) of Schedule 2 to the Access to Personal Files Act 1987, with the effect that the accessible information falling within the scope of the Act is personal information held for any purpose of the social work authority’s functions under the Social Work (Scotland) Act 1968 and the enactments referred to in section 2(2) of that Act.

2. Section 2(2) of the 1968 Act as amended defines a local authority’s social work functions as all matters relating to the performance of its functions under the following enactments:

2.1 Social Work (Scotland) Act 1968 as read with sections 1 and 2(1) of the Chronically Sick and Disabled Persons Act 1970 and the Disabled Persons (Services, Consultation and Representation) Act 1986.

2.2 Part IV of the Children and Young Persons (Scotland) Act 1937.

2.3 The Disabled Persons (Employment) Act 1958.

2.4 Sections 10 to 12 of the Matrimonial Proceedings (Children) Act 1958 (and sections 11 and 12 of the Guardianship Act 1973).

2.5 The Foster Children (Scotland) Act 1984.

2.6 Section 101(1) of the Housing Act 1964 and the enactments mentioned in sub section (4) of the foregoing section.

2.7 Section 9(1)(b) of the Housing (Homeless Persons) Act 1977.

2.8 The Children Act 1975.

2.9 The Adoption (Scotland) Act 1978.

ANNEX B

HEALTH PROFESSIONALS

Note: This category shall be construed as not including any person belonging to a profession specified in the first column which, by virtue of an Order under section 10 of the Professions Supplementary to Medicine Act 1960, is for the time being treated as if it were not mentioned in section 1(2) of that Act and as including any person belonging to a profession not specified therein which is for the time being treated by virtue of such an Order as if it were mentioned therein.

ANNEX C

"The appropriate health professional" means -

1. the medical practitioner or dental practitioner who is currently or was most recently responsible for the clinical care of the data subject in connection with the matters to which the information which is the subject of the request relates; or

2. where there is more than one such practitioner, the practitioner who is the most suitable to advise on the matters to which the information is the subject of the request relates; or

3. where there is no practitioner available falling within paragraph (1) or (2) above, a health professional who has the necessary experience and qualifications to advise on the matters to which the information which is the subject of the request relates.