04 March, 2013
The recent case of Durham v Dunn has been lauded, particularly by the claimant's representatives, as a new dawn in disclosure practice. However does it provide the safeguards for Local Authorities and public bodies that those reporting its findings purport?
The case relates to the disclosure of social service records requested in relation to a claim of sexual abuse. As will come as no surprise to local authorities, these documents were provided in a redacted form in order to protect the identity of the other children, now adults, referred to but not party to the proceedings. The claimant applied to the Court for disclosure of un-redacted copies in order that they may contact those other people mentioned in the hope that supportive evidence could be obtained for the claimant and no doubt to explore whether additional claims may be brought. The Court at first instance refused to order un-redacted disclosure on the basis that this would be a breach of the Data Protection Act. The claimant then appealed to the High Court which ordered disclosure of the documentation using the DPA and the test of necessity. Unsurprisingly the Defendant appealed in order to protect its position and to gain some clarity of argument from the Court of Appeal.
The Court of Appeal handed down its judgment in January 2013 and significant discussion has since been prompted as to whether the case provides a virtual carte blanche for total unfettered disclosure and significant costs savings, as time need not now be wasted redacting documents in order to protect non-parties or prevent fines from the Information Commissioner. But is that really the case? Well let us look at what was actually said.
Somewhat surprisingly for all of us who work with or work in the Public Sector, the Courts lead judgment by Lord Justice Kay starts by dismissing the concerns raised by the defendant with regards to their responsibilities under the DPA, an issue which reasonably concerns Public Bodies due to the extent of fines recently handed down and heavily publicised. The courts, according to the judgment, 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
The Court of Appeal decided that in this particular case the other children could be witnesses and that their names should be disclosed. However, 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. Although the effect on the non-parties was considered, it was stated by the High Court Judge and not dismissed by the Court of Appeal, that provided the information was used solely for the purpose of this litigation and witnesses were dealt with sensitively, no prejudice should occur beyond the potential initiation of a letter requesting co-operation. Those working the sphere of child protection and historic abuse may take a very different view.
The dismissal of the DPA relies on the exemption in Section 35 which states that personal data is exempt from non-disclosure when it is for the purpose of legal proceedings, for the purpose of obtaining legal advice or otherwise necessary for the purpose of establishing, exercising or defending legal rights. This, according to the judgment suggests that un-redacted disclosure is allowed in any intimated litigation as long as the "necessary" test is satisfied. But what will be deemed to be "necessary" and why? The judgment suggests that consideration should be on a case by case basis.
Lord Justice Kay gave examples of what should be considered. A train of inquiry, as in this case, could be of relevance, balancing the fair trial for the claimant against those other parties whose rights may require protection, consideration of whether the denial was strictly necessary and whether a balance could be struck by using redaction, confidentiality rings, anonymity or other such order.
This guidance seems to cover a myriad of sins and with the inclusion of redaction and confidentiality in the judgment, does not seem to provide the carte blanche suggested. The ruling also does not get away from the fact that a non-party, who may have suffered significant abuse and may be harmed simply by being contacted in relation to the matter, may complain to the Public Body and the Information Commissioner irrespective of any perceived breach. Without a Court order confirming the extent of the disclosure to be provided, it would seem that Public Bodies remain no better protected from complaints as a result of this judgment.
So what does the future hold? It does seem that the vast majority of significant fines handed down by the Information Commissioner relate to loss of or inadvertent sending of information rather than considered disclosure and Public Bodies can take some solace from that. Public Bodies however, may still wish to require a claimant to issue a pre-action disclosure application or obtain an order regarding disclosure at a directions hearing in order to obtain a court order for the purposes of protection against complaints whether they ultimately lead to fines or not. Negative publicity regarding sensitive issues can be as harmful to the reputation, and subsequently the ability to protect, of those dealing with the vulnerable and needy as any fine.