I'd disclose the whole kit and caboodle. A family member died and a relative believes there was a failure of care.
Do we keep records in order to protect ourselves and our budgets (business needs) or do we keep them in the public interest (public service) ?
If the relative is stymied at the first hurdle, is the public interest being served or sidelined. Are the laws phrased and weighted against what looks like a pressing social need?
Data protection is surely also about protecting people, or does the need to conceal first and ask questions later sweep all before it?
-----Original Message-----
From: This list is for those interested in Data Protection issues [mailto:[log in to unmask]] On Behalf Of Lawrence Serewicz
Sent: 23 April 2014 12:30
To: [log in to unmask]
Subject: [data-protection] Would you disclose even though the law does not compel you to disclose?
Dear All,
Interesting case to consider.
An adult child of person who died in care comes to the organisation and asks for the care records and the health records of the deceased. They are the legal representative of the deceased. They believe there was a failure of care by one or more parties.
They cannot get the information under FOIA (personal data and confidentiality). They cannot get this under DPA. The person is deceased. They can only get half of the records under Access to Health records (Deceased).
They have no immediate legal access to social work files. So can you disclose? Would you disclose?
The applicant could go to court and seek a discovery motion to sue the organisations. Do you pre-empt this by disclosing to them, under a duty of confidence, the care files (with appropriate redactions, if required, of 3rd party data)?
You could treat this as a complaint, but that would not lead to a disclosure of files, it would only lead to an investigation and a judgement about the care or the subject of the complaint. I am not sure the Ombudsman can compel disclosure of records. (Does anyone know if they can?)
As an aside, if an MP asked for the records, would they be able to receive them? Is a deceased person still a constituent? Or is it that the court is the only venue for receiving access to the files?
Do you take the view that no disclosure unless compelled?
If you disclose, have you set a precedent? If you don't disclose do you wait for a court order? Or do you weigh up the likelihood of a court case and what that would entail and pre-empt that by disclosing.
I would be interested in your approach to such a case.
Thanks
Lawrence
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