Thanks to everyone who responded to my query. It's been really helpful.
I've pasted the responses below:
My personal opinion is that I would have thought that he could obtain this
information from elsewhere e.g. obituaries/ newspaper/sports reports/school
annual reports - which would probably be published and in the 'public domain'.
If he was doing this research himself in say a county records office and a third
person was not researching for him then maybe the situation would be
different.
It seems to me the main points are 1) that he told you what the request was
for and 2) that you are doing the physical search for him.
This article deals partly with this kind of situation
Judith Etherton ‘The Role of Archives in the Perception of
Self’ Journal of the Society of Archivists 27.2 (2006) pp. 227-246
You are certainly right that he should not be given any details from your
records if there is any chance that the data relates to living individuals. The
gentleman in question should be advised to go through the proper channels
(Social Work will advise you on who does this for your area) in his search for
his biological father, he should not be undertaking this without professional
assistance and counselling. I know it is hard to tell people that you can't help
them but in this case you are abiding by the provisions of statute.
think you are right to seek advice.
This is not legal advice but my reading of the exemptions that allow access to
personal data for research purposes is that it is permitted providing 'that the
data are not processed to support measures or decisions with respect to
particular individuals' and that it is 'not processed in such a way that
substantial damage or substantial distress is, or is likely to be, caused to any
data subject'.
On both counts the request is suspect, as surely once the father has been
identified the person requesting the information will take an action with
respect to the data subject i.e. try to get in touch with them. Also getting in
touch may cause substantial distress to the birth father.
I'm pretty sure that someone at The National Archives should be able to give
you advice on this, as they have lots of legal experts. But I suspect this is a
case where access is likely to be refused.
You would probably get informed advice from the Data Protection List:
[log in to unmask]
I think there are two areas too look at:
1 he may be asking for third party personal information;
2 His request may fall under the remit of the adoption act procedures -
particularly if he is trying to find he birth father or relatives. If so he should be
put in touch with his local social services who can facilitate information and
access.
Either way you would not have to release information
I can't help with the legal issues, but here are some links that might help the
enquirer:
NORCAP (National Organisation for the Counselling of Adoptees and Parents)
is ‘a UK Registered Charity and support group established to help adults handle
their feelings about the effect of adoption on their lives.’
NORCAP, 112 Church Road, Wheatley, Oxfordshire, OX33 1LU
Tel 01865 875000. Website www.norcap.org.uk
Adoption Search and Reunion - ‘for anyone thinking about searching for or
making contact with birth and adopted relatives’ -
www.adoptionsearchreunion.org.uk
General Register Office, Adoptions Section
Trafalgar Road, Birkdale, Southport, Merseyside, PR8 2HH
Tel 0151 471 4830. e-mail [log in to unmask]
Website www.gro.gov.uk/gro/content/adoptions/
And of course their local authority Adoption Agency, if they haven’t already
tried them.
it's a difficult one because of the adoption complication. If he'd simply said he
was doing some family history research and gave you the information, would
you feel able to tell him what he wants to know? From what you've said and
since you wouldn't give him an address, it's quite unlikely you'd be giving him
sensitive personal data or that he would be able to trace his birth father
simply from conformation that he did attend a certain school and played
rugby. Even is you did give him a 60 year old address it is unlikely that the
man or his family still love there. I agree with David that this man would be
best advised to contact social services and, hopefully, receive active
assistance in tracing information about his birth father.
What he is actually doing is making a freedom of information request, so if you
think you should say no, you'd need to think about what exemption you would
claim. I am not aware that you would be breaking any laws based on his
stated use of the data. Susan Healy and Kevin Mulley at TNA helped me with
a very difficult access request about tracing a biological parent so if they
haven't offered help, I would suggest you contact them. I'd be interested in a
summary of advice for the list.
I think before coming to any firm conclusions, you may need to ask your
enquirer to confirm certain information, as this is clearly a very sensitive area,
not least because you cannot be sure that the putative father is even aware
that he has an illegitimate child, and the information that your enquirer has
appears to be based on hearsay.
As regards DPA, if this can be considered to be personal data of the enquirer,
then you might be able to supply it to him, notwithstanding the fact that the
records are primarily being ‘processed’ (ie kept and used) for historical
purposes, rather than identification of parentage. The actual recorded
information of course relates solely to the ‘father’ and ‘uncle’, but due to the
other information held by the enquirer, it arguably becomes information about
the latter’s parentage by implication (assuming it is accurate!) This would be
in accordance with the subject access provisions of the Act (s.7).
Note that because this would be shared personal data, you do not have an
actual obligation to supply it under DPA unless certain conditions can be met.
Of course, as you are not a public authority under the FOI Act, technically the
information may not be subject to DPA if it does not fall within the definition of
a ‘structured filing system’ (such as indexed registers), but even if not,
ordinary care for former pupils would suggest that a similarly cautious
approach be adopted.
If DPA does apply, the key question is whether you can either 1) secure the
consent of the other data subject (ie his putative father) to release or 2)
release because it is ‘reasonable’ in all the circumstances to do so. Some
guidance on possible considerations here is given on the Information
Commissioner’s web-site:
http://www.ico.gov.uk/upload/documents/library/data_protection/detailed_spe
cialist_guides/sar_and_third_party_information_100807.pdf
I do not know if Sedburgh maintains sufficiently active links with old boys to
make option 1 realistic, but in either case, given the sensitivity of this I think
it would be best to proceed with assistance from a professional intermediary
service if possible. The only snag here is that if no formal adoption was
involved, they may not be able or wish to act. In that case you would have to
decide whether to act yourself.
The other possibilities are that you might be able to provide some very general
non-identifying information on the putative father’s background and
circumstances (eg ‘your father was 6’ 2”, suffered from asthma and came from
a professional family in the north of England’) though this needs some care as
it may open other routes to identifiable information, or, if you can establish
that he is now dead (eg through old boys association records?) you might be
able to supply much fuller information, providing this does not serve to identify
other third parties. However, I think you should be very careful about
supplying information from closed records to the enquirer, whether or not
there remains any doubt as to the identity of the father. As noted above, this
could involve significant intrusion into the private and family life of the ‘father’
which would need to be balanced against the similar rights of the ‘son’.
Although this may case may not involve formal adoption, you may find some of
the guidance on the following web pages will give some idea of the kinds of
information that is sometimes released via official intermediary services, as
David has mentioned. The only snag with these is that they are often under-
resourced, and if no formal adoption was involved, they may be
unable/unwilling to act..
http://www.dcsf.gov.uk/everychildmatters/resources-and-practice/IG00324/
http://www.adoptionsearchreunion.org.uk/Channels/
I would therefore suggest responding somewhat along the following lines
(adapt to suit):
Dear Mr X
You contacted us requesting information that you believe may serve to
identify your birth father.
While we fully appreciate the importance of this information to you, we are
sure you will equally understand that providing it to you (if we hold it) may
also potentially have major consequences for the person concerned, who may
not be aware that he has a child, or may ultimately prove not to be related
to you at all. We also have to operate within the constraints of any applicable
legislation, including the Data Protection Act 1998: while information throwing
light on your parentage may potentially be viewed as your personal data, to
which you have certain legal rights of access under that section 7 of that
Act, it is certainly the personal data of your supposed father, who therefore
also has rights to have it appropriately protected, even against a close
relative.
In making a decision on whether we can release it to you or not, we will need
to consider all the circumstances carefully, to ensure that any release meets
the requirement of section 7(4) of the Act:
Where a data controller cannot comply with the request without disclosing
information relating to another individual who can be identified from that
information, he is not obliged to comply with the request unless—
(a) the other individual has consented to the disclosure of the information to
the person making the request, or
(b) it is reasonable in all the circumstances to comply with the request
without the consent of the other individual.
I would suggest that it might be better to pursue your enquiries with the
assistance of an official intermediary service provided under the Adoption and
Children Act 2002, as they will have experience in dealing with such sensitive
matters. Your local authority social services department will be able to put
you in touch with any intermediary service operating in your area. However,
they may feel unable to act if no formal adoption was involved.
It may be helpful in considering your case if you can supply me with additional
information: preferably a copy of your birth certificate: current proofs of
identity (eg drivers licence etc): and a statement from your birth aunt of such
information regarding your birth father as she may be able to supply, and in
particular, any indication as to his knowledge of, or attitude to, your birth and
circumstances. Until we receive this, we will be unable to provide a
substantive response to your query, in accordance with section 7 (3) of the
Data Protection Act
I must make it clear that even if we receive this additional information, we
may not be able to supply information to you at all, or only in very general
form (eg to give you non-identifying information about your possible birth
father’s general background or status)
However, I wanted to check a few things before responding. I presume that
these records are primarily being retained for ‘historical research’ purposes
(s.33 of DPA), but clearly there is a possibility that ‘substantial damage or
substantial distress’ to say nothing of ‘measures or decisions’ re an individual
could be involved here.
On the other hand, although the specific data relate to the putative father,
and in that context could readily be released under s.33 (who is likely to be
substantially distressed by people knowing they played for a school soccer
team 60 years ago?), it is clear from the context that in effect what your
enquirer is really seeking is not who played soccer, but the identity of his
parent. In that sense, I think arguably he is making a form of subject access
request for shared personal data, since the other information he has been told
makes the soccer data de facto data about parentage (of course, he may
have been told wrong!)
When interpreting legislation, regard must be had to the terms of the
European Convention on Human Rights, including the need for ‘respect for
private and family life’. Although this only applies to organs of the state, and
therefore not directly to your school, the courts and ICO would have to take
it into account in deciding whether there had been a breach of DPA. In that
respect, there have been some interesting cases regarding French adoption
law, the gist of which is that where there may be a potential clash between
the right of the natural parent to personal privacy, and the right of the child
to know his/her own parentage and establish family relationships, a fair
balance must be drawn. That could be complicated. In UK adoption and civil
registration law, this is currently done through fairly elaborate procedures as
to the availability of access to registers, indirect contact processes etc. but
these only apply to very specific series of records, and the previous position
was different, so I would need to check the legislation in force at the time and
my notes on adoption to give you a clear answer.
Leave it with me, and I will try to respond later today. Do you have details of
your enquirer’s d.o.b., and has he taken any other measures to trace his
father (eg it would be useful to know why he has not simply asked his mother)?
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