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Requests for disclosure: DPA & CPR - Durham County Council v Dunn (2012)

DWF recently acted for Durham County Council in a matter of important principle which required consideration by the Court of Appeal. The judgment was handed down on 13 December.

Background

The Claimant, as a child, was resident at a secure facility run by the council between 1980 and 1984.

In early 2008 the Claimant's solicitors wrote to the council indicating the intention to make a civil claim for damages with proceedings issued in early 2011. The basis of the claim arose out of allegations that he suffered injuries whilst he was in the secure unit.

The letter of claim requested pre-action disclosure of the Claimant's personal files from the facility. The request was made pursuant to the Data Protection Act 1998 ("DPA") and documents were duly disclosed but redacted to protect the identities of other children who were named in those records in the normal way.

The issue of redaction was the issue that ultimately came before the Court of Appeal last month.

At an early case management conference the District Judge in the Manchester County Court was asked by the Claimant's representative to order that documents should be provided in unredacted form. His argument was that the other children could be potential witnesses and that to withhold their names was preventing the Claimant having a fair trial. The District Judge disagreed with this view and ordered that the documents should be redacted to remove the names of children but not the names of adults such as doctors and police. In making this ruling he noted concern about the processing of personal data in accordance with the DPA and that former residents might be stigmatised by the release of their names.

Data Protection Act 1998 or Civil Procedure Rules

The matter then went to appeal before HHJ Armitage, again in the Manchester County Court. On this occasion it was put to the court by the council that it was wrong to consider the DPA and that where disclosure is for the purpose of civil proceedings the court should only have to consider the Civil Procedure Rules. It was also put on behalf of the council that Public Interest Immunity should apply to the identity of other children unless there was some specific relevance to the issues in the case. It was argued that wholesale disclosure, where the children may not have information of relevance, was simply a "fishing expedition."

HHJ Armitage agreed that the Civil Procedure Rules would apply but went on to consider the DPA test of "necessity" and ordered that it was necessary and in the interests of justice for the names to be disclosed.

The judgment did not give any clarity to an already complex problem. Solicitors will routinely ask for disclosure under the DPA when in fact the purpose of disclosure is for a civil claim. DPA disclosure will be more limited as the duty is simply to provide personal information held on a data subject in an intelligible form. Councils and others will quite properly respond to such requests by taking out all information that does not relate directly to the data subject even where that might be information of relevance to the issues.

Due to this lack of clarity we advised Durham that the matter should be put to the Court of Appeal for consideration. The hearing took place at the beginning of November and judgment was handed down on 13 December. The judgment has helped in giving the clarity requested and will be a useful guide not only for local authorities but for other care and education providers.

Findings

Essentially, the Court of Appeal held that the DPA is not applicable to disclosure in the context of civil proceedings and that the courts should only be considering the Civil Procedure Rules in deciding what should be disclosed. The test therefore that should be applied is to firstly consider whether the name is relevant to the issues. Once it is decided that the name is relevant then it can only be withheld if it is necessary to prevent that individual from being adversely affected by that disclosure and, then, only if that outweighs the interests of justice of the claimant.

Unfortunately the Justices took the view in this particular case that the other children could be witnesses and that their names should be disclosed as part of a trail of enquiry. However no criticism was made of Durham County Council in originally withholding the names. It was agreed that this was an important point of principle. It was also agreed that the identities of the other children should be given some protection by only allowing disclosure to the parties and their legal representatives for the purpose of the proceedings.

Councils have long been concerned about complaints to the Information Commissioner for breaches of the DPA and potentially hefty fines. This judgment will offer protection to councils and other public bodies when such complaints are made regarding information disclosed in the course of civil proceedings. Councils and others have also been concerned about the cost of preparing documents for disclosure. To provide documents in unredacted form will result in much reduced costs.

For more information please contact Joanne Kingsland, Associate on 0191 233 9727 or at joanne.kingsland@dwf.co.uk.

To view the rest of the articles in this Local Authority brief, click on the titles below:

School trips: preserving valuable activities but keeping children safe.

Civil Justice reforms: Jackson update

Sexual abuse and vicarious liability: The Catholic Child Welfare Society & Ors v Various Claimants & Ors (2012)

Case law update: Highways

Case law updates: Other litigated claims

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.