RE: RE: Access to deceased persons social services records by Lia Musto-Shinton - written 21/09/2011 13:19:12

Thanks Ibrahim,


 


Can you clarify two points:


1. What is WDTK, and


2.  Do you think such a disclosure falls within the FOIA regime or outside?


Regards


Lia



Ibrahim wrote (12/09/2011 08:40:00):



Hi Lia

You are correct that the AHRA only applies to medical records not social work records.
However I do agree with Derek in that if you disclose social work records to the PRs, as long as you verify them and do not disclose through WDTK, then you are safe from a BoC and so section 41 does not apply.

The term ""disclosure to the whole world applies to not being able to add restrictions to the disclosure. Here though the PRs would still be bound by their duty of confidence and to act in the best interests of the deceased.

The leading ICO case on disclosure of dead people' social work records involves Trafford MBC. See My articles:

http://www.actnow.org.uk/content/46


Lia Musto-Shinton wrote (07/09/2011 13:47:33):

Are you saying that the request falls under Access to Health Records Act and is therefore exempt under section 21 FOIA. My view is that the PR is not entitled to social work records under the Access to Health Records Act only medical records. Ibrahim what is your view?

Lia

Derek wrote (02/09/2011 15:54:48):


Hi Lia

Just to chip in, my view is that although technically you are correct that a disclosure under FOI is a disclosure to the world at large the fact that the requester is the PR of the deceased means they are entitled to request the data under the Access to Health Records Act, (taking the request outside of the FOI arena) but subject to any specific request recorded from the deceased that some/certain information should not be disclosed. Having verified that the requester is the PR then you wouldn't disclose the information by any publicly accessible mode (ie the whatdotheyknow.com website) but would disclose it securely either by hand or recorded delivery. If the PR then puts the information into the public domain thats up to them. S41 only really comes into consideration if the requester is not the PR.

Make sense?

Lia Musto-Shinton wrote (26/08/2011 09:59:27):

Dear Ibrahim,

 

I have done a lot of research on this area and the guidance and decisions seem to suggest that you can rely on section 41 unless the requestor is the PR of the deceased as then you do not satisfy the element of "actionable breach of confidence". However, the problem I have with this is that when you release information under FOIA you release to the "public" as opposed to the requestor. So do such disclosures really fall within the framework of FOIA ? If you considered that you were releasing to the public as opposed the PR then section 41 would clearly be met.

 

Hope you understand my dilemma

 

Lia Musto-Shinton












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