Is this appropriate conduct for solicitors?

[AugustaFinkNottle]

A solicitors' firm which acts for councils in special educational needs tribunals has tweeted the following:

"Great ABA Trib win this week ... interesting to see how parents continue to persist with it. Funny thing is parents think they won ;)"

I can't link to it due to having been blocked but it's been retweeted, e.g here.

The original tweet resulted in numerous complaints and a quick change to the tweet.

The case they're triumphalising about will have involved a disabled child. Lovely.

That's a strong letter from IPSEA. Which reads as though it was written by a barrister with a hammer in their hand, who sees a provincial solicitor as a row of nails needing to be knocked in.

starlight I believe you 100%.

For the sake of all parents who have been subjected to Mark Small, his disgusting practises and lack of morals, I hope his career is ground into the dust forever.

Same for all those assholes who support him

who sees a provincial solicitor as a row of nails needing to be knocked in.

Trouble is, this isn't a provincial solicitor, this is someone who has been advising the majority of LAs in the country!

Neckguard, I suspect you're right about the interpretation of the DPA in practice, which makes BS' conduct even worse. It also makes it all the more astonishing that user so confidently proclaims that they did nothing wrong.

Suspect MS would much rather have the size of his man parts commented on that be referred to as a "provincial solicitor"!

Which LAs are still insisting that they will continue to use him?

From different case, I have confirmation from the Information Commissioner that claiming you have a right to see someone else's personal data without their permission is a breach of the Data Protection Act.

I still maintain that user numbers can't be arsed to get a proper username cannot be a professional.

ANewDay - Worcestershire have said they will continue to use them but have not publicly said so. There is an upset parent on the other thread who is in the midst of a tribunal there. I contacted the evening news but have not received a response.

LottieLou, do you have a link to Worcester saying they intend to continue to use him?

No, I think that they have possibly told parents involved in tribunals that they are going to continue using them but the impression I get is that they do not want to release a public statement.

I tweeted them the other day when it all broke and they gave a non commital response, the flavour of which seemed to be that BS had apologised to them and the tweets were not about any cases in Worcestershire how that is even relevant I don't know...

Other people have tweeted them but they didn't respond any further. The parent on the other thread wants this outed (me too) they are one of the more prolific users of this firm so I don't think this is acceptable.

which other thread?

The one in Special Needs Children which has Baker Small in the title.

Starlight... I am just speechless at your experiences.

We had a good outcome from our dealings with our LA - mostly thanks to the advice I had from other parents (including people on MN) and charities. It was invaluable, as the system is almost impossible to navigate without help. To think there is the implication parents are trying to 'play' the system, when they are just trying to access help... and to use that against you?!

And the reference to your father's death... just sickening.

Good that IPSEA have done a model letter - I was really struggling with mine.

"Neckguard, there is provision in the DPA for opponents in litigation to ask for data. It does, however, have to be strictly limited to the subject matter of the litigation, which really means that the person requesting it has to give very detailed descriptions and that the subject of the request should be given the opportunity to object to any particular document being handed over. In BS' case, however, they made a practice of simply asking for the entire file and telling the nursery or school that the DPA allowed it. As Starlight says, the average busy nursery or school tends to assume that lawyers who are instructed by their local authority and are experts in that field must know what they're talking about and don't tend to go off and double-check. The use of threats about tribunal orders is another standard BS tactic."

Most people in litigation and indeed with most subject access requests lawfully ask for all the data. In practice it is kinder to the person to whom you make the request to say I am particularly interested in XYZ (rather than I am bank customer account XYZ give me all the data you hold about me). However I struggle to see it's a criminal offence to ask for everything. The legal duty is no the recipient of the request to ensure they only supply what does not identify others.

It is certainly the case that some recipients of very wide data requests do write back saying hang on can we narrow this down a bit?

This is quite useful ico.org.uk/for-organisations/guide-to-data-protection/principle-6-rights/subject-access-request/ particularly the bit - can I ask for more information (once the organisation receives the request)

Most people in litigation and indeed with most subject access requests lawfully ask for all the data.

In the case of a request for information about a third party, what is to stop the data controller saying "No, come back with a court order?"

S.35 allows the data controller to release data where they have other legal bases for doing so, but does not force them. A request being made with S.35 (or S.29) hanging in the background is not a S.7 subject access request: S.7 relates to individuals who are "data subjects", and the latter is explicitly defined as " an individual who is the subject of personal data" (I think that in this legislation, "individual" has its plain meaning and excludes legal persons such as companies). The only person Mark Small can make a S.7 SAR for is Mark Small; anything else is at the discretion of the data controller subject to their obligations and duties under other laws.

So here's the question.

Solicitor: Please give you everything you have about my opponent, I cite SPA 1998 S.35 in support of this.

Data controller: No. Your move.

What happens next? The ICO won't order disclosure: it isn't a S.7 request. What would a solicitor do? I'm not asking for small businesses to fight legal actions on their clients' behalf, but it would be nice that they might have some concern for confidentiality.

Still avoiding awkward questions, User?

The legal duty is no the recipient of the request to ensure they only supply what does not identify others.

No. Where the request does not come from the data subject, the legal duty on the recipient of the request is to send nothing that the requester is not legally entitled to. You don't merrily send out copies of personal information to any Tom, Dick or Harry that requests it. User, why on earth are you repeatedly obfuscating this?

Solicitor: Please give you everything you have about my opponent, I cite SPA 1998 S.35 in support of this

I would suggest that any Data Controller who knows what s/he is doing is obligated to refuse this request, due to the massive risk to that they will send documents that aren't directly relevant to the dispute in question and will be liable to a very large fine.

The problem discussed in this thread is that a school can normally expect that a solicitor who asks them for copy documents won't misrepresent the law to them, but unfortunately BS was misrepresenting the law.

I would suggest that any Data Controller who knows what s/he is doing is obligated to refuse this request, due to the massive risk to that they will send documents that aren't directly relevant to the dispute in question and will be liable to a very large fine.

More fundamentally, when I was a Data Controller I would have refused to answer the request on the grounds that it's none of the requestor's business and their legal action is nothing to do with me. Not my circus, not my electronic records of the monkeys involved.

Perhaps I have a statutory or contractual obligation to keep the data secure, perhaps I don't. But I have no need to waste time and resources finding out whether I should respond, or to waste time and resources responding. I'd either not answer at all, or I would reply very tersely refusing the request and saying that I have no intention of engaging in any further correspondence that doesn't contain a court order. There is no risk to saying "no" (if they come back with a court order I can, of course, respond to it) and a lot of risk to saying "yes".

But then, I've always fancied finding out more about Norwich Pharmacal orders and I teach a course in which I mention them. If I owned a nursery, perhaps I might be more easily cowed. But isn't one of the missions of the SRA to stop solicitors from duffing up innocent bystanders?

Yes, it is me....I am in tribunal situation at the moment, and they have assured me that they are still using them. In fact I have had several emails this week from MS, being as adversarial as ever :( I cannot sleep at the moment thinking that my child's future is in his hands.

Worcester, there's some advice on this on SOS SEN's Facebook page - www.facebook.com/SOSSpecialEducationalNeeds/

If people are talking about data protection act then you ask for information about the data subject ans as I said above have to be very careful not to disclose information about someone else as that's illegal. It's a huge nuisance to receive these subject access requests.

If we're talking about a freedom of information request of a public body under FOIA then that's a different kettle of fish but even there the recipient of the request has to be very careful not to supply anything it is not allowed to supply and there are protections for confidentiality.

If we're talking about a general pre-action disclosure request nothing to do with either of the above then you ask before you start suing someone for information relevant to the case and if they don't give it you can apply to the court to force it out of them.

On awkward querstions if I've not answered a question as me again. I'm trying to work as have a lot of hungry mouths to feed so I cannot always spot every questions. The last time I tried to change the name from user the website was not allowing changes and indeed I websearched and found some other people (all of us trapped into the boring old user as our starting name) presumably due to some software glitsch. I have not checked today. If it's gone then I might get to pick something else.

Worcester, just wondering (because I might tweet them) - are you dealing with Worcester or Worcestershire?

Worcestershire - do you have anyone representing your case? Are you actually in Worcester or a different area? PM me if I could be of any help. I've had two appeals against them in the past.

I have had absolutely no response from the press - is someone trying to keep them quiet I wonder?

If people are talking about data protection act then you ask for information about the data subject ans as I said above have to be very careful not to disclose information about someone else

The only person who can ask for information under the DPA S.7 about a particular data subject is the individual. You can ask whatever you want. If you aren't the data subject, it's not a S.7 request. This is basic stuff.