Judgment of Sheriff A Cubie in the decision in relation to possible contempt of court by XY Council in social work referral proceedings concerning the S children ([2020] SC GLA 40)

https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2020scgla40.pdf?sfvrsn=0 

In a judgment provided by Sheriff A Cubie, concerns were raised over the actions of a local authority and whether their actions had been in contempt of court proceedings.

The recovery of documents had been sought by way of specification. The local authority had responded to the specification by producing heavily redacted documents. 

The issue was raised as to whether recovery through the means of a Subject Access Request could be a substitute for recovery of documents by way of the specification procedure. 

The background

Prior to a Proof involving social work referral proceeding, agents acting for the mother sought the recovery of social work records in respect of two children from the local authority concerned.

They sought these documents by way expediated motion for the specification of documents.

The motion was granted, and the social work documents were produced by the relevant local authority.

The records were lodged as an Inventory of Productions by the mother on the second day of proof.

The documents produced had been subjected to substantial redaction.

The question of Contempt

The advice that was given by the Legal Department of the local authority was held to be wrong in this case. They had told the Data Protection Officer to treat the Specification of Documents in the same way as one would treat a Subject Access Request. This resulted in heavy redaction of the documents.

Despite the response to the court ordered specification by the local authority being wrong, the sheriff concluded that the conduct of providing heavily redacted material was not intended to be “offensive to the dignity and authority of the court”.

The local authority was not found to be in contempt of court.

Conclusions

In his judgment Sheriff A Cubie stated at [16] that;

“Fundamentally the specification procedure exists so that the court can monitor and if necessary, decide upon the relevance or admissibility or confidentiality of material which is subject to the motion for recovery, either refusing the motion or allowing excerpts to be taken from material, or allowing the material to be redacted. The court maintains control of the procedure and is the final arbiter when issues of relevance, admissibility or confidentiality arise."

He continues at [17]:

 “In order to properly carry out its function when a party or haver raises the issue of confidentiality, the court requires that the whole document be produced so that the presiding judge can determine whether the basis for the redaction is made out. It is not for the part or haver to determine unilaterally what can and cannot be produced.”

Thus, where a party to an action seeks to recover a full social work file, they should obtain an interlocutor from the court which authorises the specification and production of documents and serve this on the local authority concerned.

Any interlocutor which ordains a local authority to comply with a call in a specification of documents, will compel that local authority to release a full and unredacted set of papers relating to that call.

In complying with a court order of this kind, the local authority will not be in breach of GDPR law by virtue of exemption.

Any questions of relevance, admissibility privilege and confidentiality can be canvassed before the court.” [40]


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