Amy Haughton

SARs are the mechanism by which individuals can access the personal data organisations hold in relation to them. As part of the right to access this data, strict timescales apply for responses to be provided. A response must ordinarily be provided within one month, with an extension of up to two further months being possible to allow for complex situations.

The local authorities in question have found themselves in trouble because their responses to a significant volume of SARs were delayed by months or, in some cases, over a year. Glasgow City Council were found to have failed to respond within the statutory timescale in more than 50 per cent of SARs from the period of investigation, with City of Edinburgh Council just slightly lower at 40 per cent.

While any breach of the statutory period is a breach of an organisation’s obligations, a particularly concerning factor with the failings by these local authorities is that many of the requests were for historic social work records required for applications to the Scottish government’s Redress Scheme, or to support other investigations into action relating to historic abuse.

It is a difficult step for a survivor of childhood abuse to begin the process of taking legal advice or seeking redress. From the perspective of building a case, evidence can be the biggest practical hurdle and is often also a very emotive subject, fuelling fears around not being believed by the system. Social work records are a basic piece of evidence required for a survivor of in care abuse to proceed with action, often verifying the dates of residence or even documenting incidents which support the survivor’s testimony.

Having started an already challenging process, many survivors have been faced with months of waiting to find out if the evidence they need exists, or when it will be made available. Even with an increased prevalence of trauma-informed practices, the path to civil justice, by its very nature, can cause distress to survivors. There are steps, such as recounting details of abuse, which cannot be avoided. However, delays in accessing records to which a clear right of timeous access exists are not unavoidable.

The increased volume of record requests is framed by the local authorities as a mitigation for the delays, but there is another side to this. The nature of the requests relating to historic care records clearly demonstrates the importance of the right to access personal information without undue delay. Not every breach of the statutory time limit to respond to a SAR is going to cause harm, but often, harm will be foreseeable.

Rarely will an individual make a SAR out of curiosity alone – the information will usually be required for any number of personal and important purposes. Here, the purpose of the SARs and the potential consequences of a delayed response are very clear.

An ICO reprimand is a serious acknowledgement that a local authority has failed in its obligations. In this situation, as well as highlighting the technical breach, it also reflects the effect on the individuals left waiting many months for the information they need to access justice.

Amy Haughton is a partner at Thompsons Solicitors. This article first appeared in The Scotsman.