Children's database: Compliance with Human Rights Act & Data Protection Act

Paul Thornton made this Freedom of Information request to Department for Children, Schools and Families

The request was refused by Department for Children, Schools and Families.

From: Paul Thornton

23 September 2008

Dear Sir or Madam,

http://www.everychildmatters.gov.uk/deli...

At the above web page, with regard to the childrens database
"Contactpoint", the department reports that;

"As with all legislation we have sought the necessary advice on the
relationship between ContactPoint and the Human Rights Act 1998 and
the Data Protection Act 1998 and are confident that it is
consistent with both."

This is a request for publication of any and all the advice
obtained in this regard, in full.

Yours faithfully,

Dr Paul Thornton

Link to this

Department for Children, Schools and Families

24 September 2008

Dear Dr Thornton,

Thank you for your recent email. A reply will be sent to you as soon as
possible (where a response is required). For information, the
departmental standard for correspondence received is that responses
should be sent within 15 working days or 20 working days if you are
requesting information under the Freedom of Information Act 2000.

Your correspondence has been allocated the reference number 2008/0079282

Thank you.

Central Allocation Team

Public Communications Team

Tel: 0870 0002288
www.dcsf.gov.uk

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Department for Children, Schools and Families

1 October 2008

Dear Dr Thornton,
Dear Dr Thornton, thank you for your email of 23 September 2008, made
under the Freedom of Information Act 2000 (FoIA), requesting the
publication of any and all advice on the relationship between ContactPoint
and the Human Rights Act 1998 (HRA) and the Data Protection Act 1998
(DPA). It has been passed to me as it relates to my area of business in
the ContactPoint policy team within the Improving Information Sharing and
Management Programme of the Department for Children, Schools and Families.

We have enjoyed a long and close working relationship with the Information
Commissioner's Office throughout the development of ContactPoint. The
Information Commissioner, Richard Thomas, wrote to the ContactPoint
Project Director, confirming that:

"The information that you require to populate ContactPoint is of an
administrative nature, it reveals nothing about an individual's health or
condition and it does not strike me as sensitive."

The ContactPoint Regulations (The Children Act 2004 Information Database
(England) Regulations 2007) -
[1]http://www.opsi.gov.uk/si/si2007/2007218...), support Subject Access
Requests - a clear right under the DPA for children and young people (or
their parents or carers on their behalf), to have access to their
information on ContactPoint and for it to be corrected if it is found to
be inaccurate. Furthermore, Regulation 5 expressly places a duty on
persons or bodies supplying data to ContactPoint to take reasonable steps
to ensure such information is accurate, and where it appears to a local
authority that a child record for which it is responsible is or may be
inaccurate or incomplete, the authority must take reasonable steps to
correct the inaccuracy or to complete the record. These requirements are
wholly in accordance with the 4th principle of the DPA.

We have always sought a balance between children's and families' rights to
the services to which they are entitled, and their individual rights to
privacy - ContactPoint will not change the DPA or HRA, nor will it change
any rules governing confidentiality when practitioners work together and
discuss a child's needs. Everyone who works with children and young
people should ensure that they follow established guidelines on
information sharing and exercise professional judgement regarding consent
and confidentiality. Mandatory training for ContactPoint users will
include the importance of compliance with the DPA and the HRA and the
appropriate use of the system. ContactPoint training and Guidance will
also alert users that any misuse will lead to an immediate investigation,
disciplinary procedures and criminal sanctions where appropriate. Criminal
sanctions include fines under the Data Protection Act 1998 and fines or
imprisonment under the Computer Misuse Act 1990.

Moving on to your request, I can confirm that I have now completed my
search for the information you have requested and must advise you that
this information will not be disclosed because it falls under the
exemption in section 42 of the FoIA - legal professional privilege.

The exemption under section 42 provides that information in respect of
which a claim to legal professional privilege could be maintained in legal
proceedings, is exempt information, whether or not such proceedings are
underway. As this is not an absolute exemption, the FoIA requires us to
address and balance the public interest in withholding the information
against the public interest in disclosing the information.

By their very nature, and the nature of the essential business they
conduct, Government departments need high quality and comprehensive legal
advice for the proper and effective conduct of that business, and in order
to take decisions in a fully informed context.

In favour of disclosure, it is accepted that it is in the public interest
for public authorities to be accountable for the quality of their
decision-making, and for them to be able to demonstrate, where necessary,
that decisions have been made in a fully informed context. Transparency
in the decision-making process and access to the information on which
decisions have been based facilitate that accountability. Knowledge of
the way Government works increases if the information on which decisions
have been made is available. This can lead to public contribution to the
policy making process becoming more effective.

In favour of maintaining the exemption, it is clearly in the public
interest that Government departments are able to make decisions in a fully
informed legal context. It is, therefore, vital to Government and its
effective working that officials are able to consult lawyers in confidence
in order to obtain legal advice without the fear of such advice being
disclosed. Government legal advisers need to be able to provide such
advice with candour, at times presenting finely balanced arguments that
not only set out the merits of a case but also its potential weaknesses.
There is a strong public interest inherent in legal professional privilege
in any case, and there would need to be very strong factors in favour of
disclosure to outweigh this inherent public interest.

Disclosure of legal advice is very likely to prejudice the Government's
ability to conduct its business effectively and to defend its legal
interests, either by unfairly exposing its legal position to potential
challenge or by reducing the reliance it can place on the advice it has
received having been fully considered and presented candidly without
fear. Defending such legal challenges would be a poor use of public
resources, which is also not in the public interest. Furthermore, the
threat of challenge or the need to publicly defend such advice is likely
to inhibit Government departments from requesting full advice on its
policies and proposals, and such an outcome, again, is not in the public
interest. When balancing these factors for and against disclosure, we
consider that the public interest in maintaining the exemption does indeed
outweigh the public interest in disclosing it.

If you have any queries about this response, or are unhappy with the
service you have received in relation to your request and wish to make a
complaint, or request a review of this decision, you should write to
Nicola Doyle, Improving Information Sharing and Management Programme
(IISaM), policy lead, within two calendar months of the date of this email
:

Nicola Doyle,
IISaM Programme
Ground Floor, Sanctuary Buildings,
Great Smith Street
London
SW1P 3BT

Please remember to quote our reference number in any future
communications.

If you are not content with the outcome of the internal review, you have
the right to apply directly to the Information Commissioner for a
decision. The Information Commissioner can be contacted at:

Information Commissioner's Office
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF

Generally, the Information Commissioner cannot make a decision unless you
have exhausted our complaints/review procedure.
Yours sincerely,

Nigel Dexter
ContactPoint
IISaM Programme
Department for Children, Schools and Families

Your correspondence has been allocated the reference number 2008/0079282.

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recorded for legal purposes.

References

Visible links
1. http://www.opsi.gov.uk/si/si2007/2007218...

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From: Paul Thornton

2 October 2008

Nicola Doyle,
IISaM Programme
Ground Floor, Sanctuary Buildings,
Great Smith Street
London
SW1P 3BT

Your reference 2008/0079282

Dear Ms Doyle,

Thank you for this reply from your colleague Mr Nigel Dexter which
I regret does not fulfil my request.
My request was for sight of the advice received “in full”.

While Mr Thomas, the information commissioner, is eloquent and
succinct, I very much doubt that his contribution to this major
departmental project was limited to the single sentence.

"The information that you require to populate ContactPoint is of an
administrative nature, it reveals nothing about an individual's
health
or condition and it does not strike me as sensitive."

Without a date, and the wider context of that sentence, its
interpretation and significance is substantially limited. I would
therefore be grateful if you would reconsider, and publish the
advice provided by Mr Thomas in full.

I shall write further in respect of the information for which you
claim section 42 exemption but in the mean time I am concerned that
your submission represents a blanket policy applied to all requests
for sight of legal advice obtained by the department. I would be
grateful if you would provide copies of any and all such legal
advice that the department has published, in the last 5 years, in
response to requests under the Freedom of Information act, or
otherwise voluntarily.

Guidance from the Information Commissioner’s Office at the URL link
below advises that
“FOI officers should agree policies with the legal teams of public
authorities
for when and how to apply the (Section 42) exemption. It would be
likely to increase
public understanding of decisions to refuse requests if criteria
were made
public, for instance through the authority’s publication scheme.”

I would be grateful if you would provide me with a copy of your
department’s policy in this regard.

Yours sincerely,

Dr Paul Thornton

http://www.ico.gov.uk/upload/documents/l...

Link to this

Department for Children, Schools and Families

2 October 2008

Dear Dr Thornton,

Thank you for your recent email. A reply will be sent to you as soon as
possible (where a response is required). For information, the
departmental standard for correspondence received is that responses
should be sent within 15 working days or 20 working days if you are
requesting information under the Freedom of Information Act 2000.

Your correspondence has been allocated the reference number 2008/0081735

Thank you.

Central Allocation Team

Public Communications Team

Tel: 0870 0002288
www.dcsf.gov.uk

show quoted sections

Link to this

From: Paul Thornton

22 October 2008

Dear Sir or Madam,

Your reference 2008/0081735

This further request for information is now overdue, alongside my
appeal in respect of my initial FOI request.

I would be grateful if you would clarify when a response can be
expected.

Yours sincerely,

Paul Thornton

Link to this

Department for Children, Schools and Families

22 October 2008

Dear Dr Thornton,
Thank you for your email regarding your request under the Freedom of
Information (FOI) Act (our ref 2008/0081735). We receive a large amount of
correspondence and all enquiries are dealt with strictly in the order they
are received. For your information, departmental standards mean that we
have 15 working days to reply to you (or 20 in the case of FOI requests).
I can advise you that the deadline for our reply to you is 30th October.
Yours sincerely,

Linda Ellis
Public Communications Unit
[1]www.dcsf.gov.uk

Your correspondence has been allocated the reference number 2008/0088209.
To correspond by email with the Department for Children, Schools and
Families please contact [2][DCSF request email].

If you have any further queries why not browse our Popular Questions
website. This site has been built to allow you to quickly find the answer
to your question [3]http://www.dcsf.gov.uk/popularquestions

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Communications via the GSi may be automatically logged, monitored and/or
recorded for legal purposes.

References

Visible links
1. http://www.dcsf.gov.uk/
2. mailto:[DCSF request email]
3. http://www.dcsf.gov.uk/popularquestions

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From: Paul Thornton

26 October 2008

Linda Ellis
Public Communications Unit
Department for Children, Schools and Families

Dear Ms Ellis,

Thank you for your letter of the 22 October 2008.
Your system seems to be generating a new correspondence reference
number with each exchange. You may wish to ensure that
correspondence under the following references is all brought
together.
2008/0081735
2008/0079282
2008/0088209

I think, on reflection, that you will agree that when 20 days
elapses from the 2nd October one reaches the 22nd October and
therefore my FOI response fell due on that date and not the 30th
October. I need the further information as evidence in respect of
the appeal that I will submit in respect of my first application.

Yours sincerely,

Dr Paul Thornton

Link to this

Department for Children, Schools and Families

29 October 2008


Attachment RJTLett16Apr07.pdf
41K Download View as HTML


Dear Dr Thornton,
Thank you for your email of 2 October 2008, regarding your previous
Freedom of Information Act (FoIA) request and my colleague Nigel Dexter's
response.

You have, on this occasion, asked for three things:

That we publish "- the advice provided by Mr Thomas in full"

That we provide "- copies of any and all such legal advice that the
department has published, in the last 5 years, in response to requests
under the Freedom of Information act, or otherwise voluntarily."

That we provide "- a copy of (our) department's policy in this regard."

- which I will address, in order:

"- the advice provided by Mr Thomas"

Please find attached to this email, a copy of the letter from where the
quote: "The information that you require to populate ContactPoint is of
an administrative nature ... " originated, in which data protection
issues relating to the processing of personal data from Connecting to
Health were addressed. Mr Thomas was not asked to provide legal advice
as such, but chose to advise on the requirements of the Data Protection
Act (DPA), and confirmed that: "given this statutory gateway (the
Children Act 2004), the DPA's requirement of lawfulness would not be
breached should the Department of Health provide the specified
information to ContactPoint."

"- any and all such legal advice that the department has published, in the
last 5 years, in response to requests under the Freedom of Information
act, or otherwise voluntarily."

The information you seek, concerning any and all such published legal
advice is not easily identifiable from the 2000 or more FoIA requests
the Department has received to date since 2005. Any attempt to identify
such advice within this number or period would invoke considerate
costs. We estimate that the cost of complying with your request would
exceed the appropriate limit which has been specified in regulations
made under section 12 of the FoIA which, for central Government, is set
at -L-600. Under Section 12 of the FoIA states that where the estimated
costs of complying with a request exceeds the appropriate limit, there
is no obligation on a public authority to comply with the request.
Accordingly, the Department is not obliged to comply with your request
and we will not be processing this aspect of your request further.

You claim that you are "... concerned that (our) submission represents a
blanket policy applied to all requests for sight of legal advice
obtained by the department." This goes against the principles of the
FoIA and I can confirm that the Department does not operate any such
policy. We are clear that there exists no justification in the use of a
blanket policy for the exemption of any kind of material. Each FoIA
request is always looked at on a case-by-case basis, and, if a qualified
exemption exists, we have to make sure that the public interest
considerations in maintaining the exemption are stronger than those
which support disclosure, before we can rely upon its application.

"a copy of (our) department's policy in this regard."

I include a link to the relevant guidance material. The Department for
Children, Schools and Families, does not, itself, have a policy
document regarding the disclosure or withholding of information.
Instead, we consider each case on its merits and will take into account,
if appropriate, the guidance as set out on the Ministry of Justice's
website at: [1]http://www.justice.gov.uk/docs/foi-exemp....

If you have any queries about this letter, please contact me. Please
remember to quote our reference number in any future communications.

If you are unhappy with the service you have received in relation to your
request and wish to make a complaint or request a review of our decision,
you should write to me within two calendar months of the date of this
letter.

If you are not content with the outcome of your complaint or review, you
may, under section 50 of the FoIA, apply directly to the Information
Commissioner for a decision. Generally, the ICO cannot make a decision
unless you have exhausted our complaints/review procedure.
Yours sincerely

Nicola Doyle
Policy Team Leader
Improving Information Sharing and management Programme
Department for Children, Schools and Families
[2]www.dcsf.gov.uk

Your correspondence has been allocated the reference number 2008/0081735.

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Communications via the GSi may be automatically logged, monitored and/or
recorded for legal purposes.

References

Visible links
1. http://www.justice.gov.uk/docs/foi-exemp...
2. http://www.dcsf.gov.uk/

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Department for Children, Schools and Families

17 November 2008

Dear Dr Thornton,
Dear Mr Thornton, thank you again for your further communication of 26
October 2008 to Linda Ellis, regarding the Freedom of Information Act
response timetable compliance. It has been passed to me as it relates to
my area of business in the Policy Team of the Improving Information
Sharing and Management Programme within the Department for Children,
Schools and Families.

We have indeed created a cross reference between your, now, four emails.
Please remember to quote the relevant reference number in any
future communications. The reference for this correspondence is shown
below.

To clarify the Freedom of Information Act 2000, may I reproduce for you
the relevant section from the Information Commissioner's Office 'Awareness
guidance 11', version 2, dated 11 September 2008:

Time for compliance

1. What is the time limit for responding to a request for information?
A public authority must inform the applicant in writing whether it holds
the information requested and if so, communicate that information to the
applicant, promptly, but not later than 20 working days after receipt of
the request; section 10(1).

2. When does the 20 working day clock start?
The 20 working day clock starts:

o the day after the public authority receives the request. According to
section 10(1) the time limit for compliance is the twentieth working day
following the date of receipt.

or

o the day the authority receives further information it reasonably
requires in order to identify and locate the information requested;
section 1(3).
Yours sincerely,

Nigel Dexter
Improving Information Sharing and Management Programme
[1]www.dcsf.gov.uk

Your correspondence has been allocated the reference number 2008/0089523.

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Communications via the GSi may be automatically logged, monitored and/or
recorded for legal purposes.

References

Visible links
1. http://www.dcsf.gov.uk/

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