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"Missing" info in Subject Access Request under DPA

(13 Posts)
boldbanana Sun 29-May-11 11:22:14

I have a fairly fraught relationship with my council and have currently made myself even more popular by raising a complaint about them to the Local Government Ombudsman. The complaint is about the various crap decisions that they have taking regarding my autistic son over the past 6 years. A key part of my complaint centres on the fact that impartial decisions about my son were taken by someone (well, a number of someones) who wasn't impartial.

I have made a SAR which I recently received the "full results" of.

Well, that's bullshit. I specifically asked for emails to be included which mentioned me or my son. I know of a number of emails that were sent which have not been included hmm .

Question is, how do I proceed? I will email FOI officer at the council to politely request the rest, but how can I actually force them to give me everything? Can the council check their employees' emails centrally, or is it down to each employee to be honest and hand the lot over?

I am also worried, as there were references in a number of the emails that were sent across about the 'reasonableness' of my requests (I have asked quite a few FOI questions too, which they've been very awkward about answering) and I am seriously concerned that they're going to brand me vexatious as I imagine that my combined requests this year have taken them a large number of hours to comply with (I could argue that, if they hadn't made so many mistakes and caused me to spend so much time myself then I wouldn't be returning the favour, but they wouldn't care...)

Any thoughts? Thanks in advance.

streakybacon Sun 29-May-11 11:41:05

No advice, sorry, but just wanted to say that I was in a similar position a couple of years ago when I made a request for school records and correspondence and got a meagre handful of crap in response. I know how hard it can be to get the documents and evidence you need.

One thing I found was that schools apparently can't give you information about your own child if it also refers by name to other pupils. I believe that some schools get round this by always including additional names so that they can use this as an excuse for providing information. In practice it would be fairly easy to blank out other individuals' names but they can (and I believe, do) use this as an excuse not to.

I don't think the 'reasonableness' of your request should be relevant if you're entitled to make it (and under FOI you are), but that's a whole other complaint against your LA wink. They probably will brand you as 'vexatious' but that's a cross you have to bear if you want the information.

Good luck.

smileANDwave2000 Sun 29-May-11 11:42:42

its complicated area isnt it obviously we are entitled to the information according to the FOI but how to enforce it literally, im sure is virtually impossible, what the laws are on internal emails ive no idea but im guessing they will be able to hide behind the same privacy laws as the emails i would think are like post mail they belong to the postee IYSWIM but when the content concerns you/ your family you would think that law would be over turned i mean they over turn the privacy laws for eg in the case of a paedophile using the internet dont they (sorry only analogy i could think of), i would asume if they wanted to they could be silly about it and say you would need an injunction or something to force them to divulge but one hopes there a little more adult than that hmm hope you get the info so annoying being so damn secretive

smugtandemfeeder Sun 29-May-11 13:56:56

I have made complaints in the past to the information commissioner ico which deals with complaints about the data protection act. They went in to the organisation I complained about and investigated and upheld my complaint. It is a slowish process but free and worthwhile.

replenish Sun 29-May-11 21:01:54

hi boldbanana I too have had difficulties in accessing information, I have risked being labelled as vexatious, in truth, sometimes I have been so wound up by the behaviour or inaction of agencies that I have not been as polite as in retrospect I would like but as it sounds in your case, have been messed around and my children failed by the systems allegedly there to assist, I would continue to politely request the information you are seeking and continue to raise your concerns with the appropriate agencies.

If this does not bear fruit have you thought of seeking legal advice? Sometimes I think LAs deliberately wind people up through their complaints processes in order to use smoke and mirrors tactics against the complainant. I am not going to bother with internal complaints processes if I need to challenge anything in the future.

I wish you good luck and hope that you are able to push forward with your requests and complaints

hairbutnobody Sun 29-May-11 21:55:22

Are some of these FOI requests for 'general' information (i.e. general budgets etc and not specific information about your child)? In that case I wondered if you had any friends/family who'd make the request in their name (if they do it through the whatdotheyknow website you can even share the information publicly). Then you won't be seen to be making multiple requests.

There is a clause somewhere about being able to refuse vexatious requests - ones that have already been fulfilled recently or would take up an unacceptable number of man-hours to find. Problem is, I don't think there are clear guidelines on what is acceptable.

If there are specific details about emails that you can give (i.e. sender, date sent) then that will help to track them down. I received some emails in my DS's LA file but I don't doubt that there were others that I hadn't seen. I also saw an email between LA employees which simply said: 'We need to discuss this. Let's talk' - so obviously all of those discussions were off the record! hmm

Do continue to be polite to the data protection person though. I think in our LA she was a trainee lawyer and probably did end up having to deal with some tedious requests.

boldbanana Mon 30-May-11 21:27:54

Hair, good idea. Yes, that website is a great help and makes it all easier!

I don't mind being labelled vexatious but I don't want to be put on 'limited contact' list, as has happened to some others in the area. The 'limited contact' thing is where they will either not communicate apart from one type of communication e.g. email/ phone or, as in a couple of cases, will not accept any type of communication or allow them near council premises for a set period of time. They've done it to a couple of people and it's quite scary as the people concerned seem to have genuine grievances but have just perhaps gone a little far in communicating them, probably out of frustration. But now they get arrested if they go near the town hall! Very scary in a 'free' society. I don't think it's just about the FOI requests; it applies to all contact. They have a written policy detailing this!

I will complain to ICO if no more is received; the problem is proving that the emails exist if they have deleted them off their machines. Tis very frustrating, but they're wrong if they think that the complaint has no merit without this information as I've been collating the info for the complaint very carefully and this new information would only strengthen it, not make it, iyswim.

I am carrying on being polite - the only time I've got stroppy is when they've blatantly lied and even then have been icily stroppy, if that makes sense!

Thanks for the help!

fiduciarydealings Mon 30-May-11 21:54:46

There are two separate processes at work here:

(i) SAR under the DPA. Under this, you should get EVERYTHING that is on the file including emails etc. If they are not there, you can make a complaint and ask for the disclosure to be reviewed. You should have been told about this in the disclosure letter. Access to your file/your child's file cannot be blocked on cost/reasonableness/vexatious grounds etc

(ii) A FOI Act request for information that the LA hold. This can be refused for a variety of reasons e.g. vexatious request, information is not held or cost. In relation to cost, if the LA believe satisfying your request would cost them more than £450 calculated in 'man' hours, they can refuse it. HOWEVER, under s.16 of the Act they have a duty to assist you and this includes advising you if the disclosure would be too costly, of other possible alternatives. You can ask for a review if they refuse to disclose.

HTH I am going through several FOI Act requests at the moment so glad to help if you PM me

boldbanana Mon 30-May-11 22:16:10

Thanks. Have already had one FOI request refused on grounds of costs which ICO investigated but then I asked in a different way and got the info I had asked for.

The difficulty with the SAR is that I've not asked for the file, but for any communications mentioning me/ son. So they'll have to actually search for their emails etc. Shouldn't be that hard though, surely?

fiduciarydealings Mon 30-May-11 23:12:27

No it shouldn't. You should not think of a file as a paper file held in a cabinet but of all the communications about the case, in whatever written form. This will include emails etc which could technically be part of any 'file' whether they are physically held on it or not and LAs should be very well used to responding to these sort of requests. There should be processes in place to link communications and asking for email should not be a problem.

You asked about how to proceed. This is not a FOI Act request and you should not confuse questions of cost/vexatiousness etc. If it concerns information about you, it is a DPA request and if you feel they have information they are not disclosing or have lost, make a complaint.

direlahere Tue 31-May-11 01:40:29

I dont know if I have to start a new thread or post here but I wanted to ask if anyone knows if dpa requests to schools and to nhs trusts have to abide by the same standards. I have certainly been denied access to information from both.

I was also wondering why (unless my LA are being economical with the truth) SAR dpa requests re education files are treated differently to requests to view complaints files in terms of timescales and right to view information. Is there different legislation covering these? I can view my children's education files by giving five days notice but i am prevented form viewing complaints files unless i allow for something like forty days?

boldbanana Tue 31-May-11 16:42:23

Yep, 40 days is what I read it as for DPA/ SAR requests. FOI requests are 20 working days.

Fiduciarydealings, the problem is that complaining adds to the bigger picture of being on their banned list (multiple complaints is one of their criteria!), so is a last resort, but I will do if I get no joy this way. Grrr!

tryingtokeepintune Tue 31-May-11 19:29:41

School records can be accessed by Educational School Records Regulation which gives the school 15 school days to respond. It costs more too - I think £40 or £50.

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