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Statement on the Forum’s contribution to the Public Record

Statement on the Forum’s contribution to the Public Record

Posted by: JoeWallace | 03 July 2020| Categories: Case Studies , Events , Team News , Reports

National Confidential Forum

 Statement on the Forum’s contribution to the Public Record

 

As set out in the Victims and Witnesses Act (Scotland) 2014, the National Confidential Forum has the following statutory functions:

(a) to provide means for persons who were placed in institutional care as children to describe in confidence (such descriptions being referred to in this Act as “testimony”)—

(i) experiences of that care,

(ii) any abuse experienced during the period spent in that care

 

(b) to acknowledge testimony by enabling it to be given at hearings established by NCF or by written or other means

(c) based on testimony received—

(i) to identify any patterns and trends in the experiences of persons placed in institutional care as children (including the causes, nature, scale and circumstances of any abuse experienced), and

(ii) to make recommendations about policy and practice which NCF considers will improve institutional care (including by protecting children from, and preventing or reducing the incidence of, abuse),

 

(d) while preserving the anonymity of participants, establishments providing institutional care and other persons, to prepare reports of the testimony it receives and its recommendations in relation to them

(e) to provide information about advice and assistance available to persons giving, or proposing to give, testimony.S

Reports by NCFS

11(1) NCF may prepare—

(a) reports based on testimony received,

(b) reports setting out, in relation to the testimony, matters it identifies and recommendations made by virtue of section 4ZB(c).

(2) A report prepared under this paragraph must not identify or include information which creates a real risk of identifying—

(a) a person who has been in institutional care during childhood,

(b) a person alleged to have experienced or committed abuse,

(c) an establishment providing institutional care.

(3) Sub-paragraph (2) does not prevent a report from including information which is otherwise in the public domain.

(4) It is otherwise for NCF to determine the form and content of a report prepared under this paragraph.

 

The Forum acknowledges that various stakeholder groups have long held the view that NCF Reports and other data from NCF would eventually contribute to the creation of a Public Record held by the National Records for Scotland (NRS). This would be to ensure that Scotland has a permanent record of the experiences of people who were in institutional care as children, including any abuse suffered, so that future generations know about it and may learn from it. As such, Forum members and NCF staff have always explained to participants that the transcribed and anonymised testimony of their experiences of care will eventually contribute to the public record through the reports it produces and through the anonymised testimonies.

The legislation, however, makes no mention of a public record, rather it states that the NCF may prepare reports and make recommendations on testimony received.  To date the NCF has produced two such reports (What we have heard so far and the original members’ reflection report)  and intends to produce a further findings report in the autumn of 2020. 

When the Forum was established in 2014 its form and function were not fully supported by all stakeholder groups.  One of the main concerns at the time was that stakeholders wished a full public inquiry to ensure experiences were recorded and in the public record.  The Scottish Government acknowledged this and established the Scottish Child Abuse Inquiry in 2015.  

The Forum is likely to complete its work in 2021 and the Scottish Government is preparing for its closure through the repeal of the legislation that established it.  As such the relevant records will be transferred from NCF to the National Records for Scotland (NRS). The process has involved meetings with senior officials in NRS; Scottish Government Survivor Support Team; the Mental Welfare Commission, and Information Technology experts.  Together we have been carefully considering the best option for securely and safely storing NCF data while respecting and preserving the confidentiality of participants. This has included referring to other legislation, such as the Data Protection Act 2018 and the Freedom of Information Act 2000, to ensure that any restrictions placed on the data are legitimate and justifiable.

Whilst the Forum reports may include key extracts from the testimonies, archiving all testimonies as a public record brings some legal challenges. Schedule 1A, paragraph 11 of the Mental Health (Care and Treatment) (Scotland) Act 2003, states that NCF reports must not identify or include information which creates a real risk of identifying—

(a)a person who has been in institutional care during childhood,

(b)a person alleged to have experienced or committed abuse,

(c)an establishment providing institutional care.

 

Testimony Records

The data which NCF has gathered over its lifespan is rich and vast. We have heard from over 180 people who experienced institutional care in Scotland. The data is currently stored confidentially on the NCF Case Record Management system (CRM) which was specially adapted to ensure that the identity of Forum participants was never revealed. Later records also include the anonymised transcripts of the hearing. These records are triple checked to ensure that all identifying features are removed but even with the additional layers of scrutiny we cannot guarantee that there are absolutely no errors in the anonymised transcripts.

Importantly, even with names removed, the NRS and MWC opinion is that the amount of bibliographical data in full testimony transcripts could lead to the identification of the individuals if the person reading the testimonies was able to complete the information with information that they already had or that was readily available to the public. This will be explained further in the section on analysis to the data. 

Participant Consent

The Forum has always asked participants to sign a consent form prior to taking part in a hearing (A copy of the consent form is attached). The consent form explains how we will use what we hear to inform policy and practice, and produce reports. We have never explicitly asked participants to consent to having their anonymised testimony on the public record. In the absence of explicit consent a way has been found to ensure a public record which complies with data protection and ensures the confidentiality of NCF participants.

Data Controller

The Forum is set up in the 2014 legislation as a committee of the Mental Welfare Commission.  As such the Data Controller for all NCF data is the Mental Welfare Commission. As Data Controller, the Mental Welfare Commission has ultimate jurisdiction for decision making about the data held by NCF. This will include granting permission, or not, to anyone who requests to view the data once it is securely held by NRS and which records should be sent to the NRS for its permanent preservation.  

It is the data controller’s duty to protect the personal data of individuals and process it in line with their expectations.

Restricted Access

Members of the public must apply to see Records held by National Records for Scotland under Restricted Access arrangements. This means that data which is considered restricted for a certain length of time, can only be accessed during that time by special application to the Data Controller. The Data Controller makes an assessment of the request for access and then decides whether the grant or decline permission to view the records.

Analysis of the Data

The Data Controller and the National Records for Scotland have analysed the data which NCF recommends transferring to the Public Record. It is their opinion that even with the strictest anonymisation protocols, it may be possible to re-identify participants using investigative techniques and cross checking with other data available elsewhere if access to the full transcripts is allowed.

 

Removing names and places provides a layer of protection, however, there is a remaining risk of identification that given the nature of the information cannot be ignored. For example, if the person being given access to the testimonies has prior knowledge about the person providing the testimony. Clear examples are family members of participants or another person that was in care in the same institution and consequently can identify situations. It may also be possible to identify individual participants by cross checking with other public records data.

 

Decision

Having taken all of the above matters into account the Data Controller (MWC) and Senior Officials at the National Records for Scotland have reached a decision.

They consider that information in the data base, including participants’ full transcripts should be considered/labelled personal data when transferred to the NRS.

Personal data is exempt information under the Freedom of Information (Scotland) Act (section 32.b) 2002, when its disclosure will contravene data protection principles.

The full testimonies will be stored in closed book and their access restricted to the general public for 84 years. This will ensure that the confidentiality of NCF participants is respected, protected and secured throughout their lifetime as the youngest age that someone can come to the Forum is 16 years.

In the absence of an express consent to disclose, and with legislation clearly stating that NCF reports must not identify or include information which creates a real risk of identifying a person who has been in institutional care during childhood (or have experienced or committed abuse), adopting a different criteria from what has been described above could lead to a breach of data protection principles.

Importantly, the MWC considers that the public interest in the NCF findings during these years of work are meant to be captured in the NCF reports which are public since they are released and can be accessed without restrictions. The Forum can add quotations and extracts from testimonies, the form and content of the report is the Forum decision, and the only limit is that it doesn’t create a real risk of identification (MHA Schedule 1.A. paragraph 11)

During the time that the testimonies are stored as closed, access would need to be granted by the data controller.

 

Stakeholder Views

The Forum would like to offer all stakeholders an opportunity to express their views on this important decision. There may be factors which are of particular concern for participants. We would like to hear from you if you think there are measures we can take to mitigate any concerns you may have about this decision. You can do this by contacting the Forum Head, Jayne Laidlaw, by email or by telephone at:

 

Jayne.Laidlaw@nationalconfidentialforum.org.uk

T: 0800 121 4773

 

This paper will be shared with stakeholders via the Interaction Action Review Group, jointly chaired by CELCIS and the Scottish Human Rights Commission, and also through the NCF website from Monday 6th to Friday 31st July 2020. Stakeholder views will be gathered and shared with in a Forum meeting on Monday 10th August, and discussed with the Mental Welfare Commission on Tuesday 25th August.

 

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