Pre-Action Disclosure and the Issue of Confidential Records
Requests for documentation such as medical, school or care records often cause concern for local authorities as these records are confidential and contain personal information.
Under section 35(2) of the Data Protection Act 1998 personal data is exempt from the non-disclosure provisions where disclosure is necessary for the purpose of legal proceedings, including prospective legal proceedings. Therefore in circumstances where it deemed necessary, confidential records can be disclosed in accordance with the pre-action protocol.
Langleys were recently involved in a pre-action disclosure application brought by a Claimant seeking disclosure of pupil records. Disclosure of pupil records were provided, however the school were concerned about disclosure of further records, particularly where parental consent would be required.
At the hearing the District Judge considered that the further pupil records were necessary for the Claimant to fully consider liability. However, the Court agreed that the Local Authority had not unreasonably refused those documents but had sought clarification from the Court. This was necessary to protect the local authority from any potential grievances in relation to the pupil records being disclosed. The local authority was protected by the Court Order.
The Court also ordered costs in the case on the basis that the hearing was necessary to determine the issue of disclosure in these circumstances. This is re-assurance to local authorities who have concerns regarding disclosure that they can proceed to a pre-action disclosure hearing without incurring cost penalties.
In addition to the protection of a Court order, parties can also be reassured that records will remain confidential and used only for the purpose of legal proceedings.
Caroline Elson is a Solicitor in the Public Sector Unit at Langleys