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Ben Jones
Ben Jones, UK Lawyer
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Data Protection Act 1998 et seq. I am challenging the local

Resolved Question:

Data Protection Act 1998 et seq.
I am challenging the local council's Social Services for Children's refusal to destroy case documentation relating to a referral made to them in 2009.
This case was subsequently pursued by me through the various complaints procedures culminating with the Public Services Ombudsman's report in early 2013.
A number of the complaints were upheld, and amongst recommendations from the Ombudsman were:
'Provides an apology to Mrs X and her family (through Mr Y [myself]) for the shortcomings identified and the distress caused by these'.
'Ensures that staff are aware of the need for accurate recording and evidencing of decisions made', and
'Ensures that its responses to complaints are clear, accurate and reflect the relevant legislation and statutory guidance'.
I have obtained a 130 plus page document on the Council's policy for data retention/destruction, which shows that they retain documentation of the nature of this particular case more or less in perpetuity.
I can find nothing in the DPA of 1998 that sanctions retention of data by councils when the data is inaccurate, no longer relevant, and the case was closed by the council long ago, as was confirmed in one of the complaints procedure hearings.
I therefore seek advice as to whether or not council policy can supersede the requirements of the DPA.
Submitted: 1 year ago.
Category: Law
Expert:  Jo C. replied 1 year ago.
Hi.
Thank you for your question. My name is ***** ***** I will try to help with this.
What would you like to know about this please?
Customer: replied 1 year ago.
Hi Jo,Can the local council legally (within the terms of the DPA 1998) retain data for as long as it is their policy, regardless of the accuracy or relevance of that data.RegardsHarry
Expert:  Ben Jones replied 1 year ago.
Hello, my name is ***** ***** my colleague has asked me to assist with your query as it is more my area of law. The section of the Data Protection Act which deals with the retention of personal data is found in Schedule 1, which contains the data protection principles. The relevant principle is the fifth, which states that “Personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes.” So as you can see the law does not state any specific timelines for which data must be retained, either for a minimum term or a maximum one. So in theory personal data can be kept indefinitely. For example, case law has confirmed that criminal record could be retained until a person’s 100th birthday. The DPA does not specify a maximum term for which such personal data can be kept and it has been decided that 100 years is a reasonable time in these circumstances. So there is nothing to say that social services referrals cannot be kept for prolonged periods. The law only says that the data should not be kept for ‘longer than is necessary’ but that is generally left for the organisations who hold the data to determine, such as through their internal policies. If you think that the length of time that the data in question has been retained is unreasonable and in contravention of the above principle, then you can challenge it in court but you would be doing this at a certain risk because there is no guarantee a court would agree with you and they may decide that in these circumstances a long period is reasonable. I hope this has answered your query. I would be grateful if you could please take a second to leave a positive rating (3, 4 or 5 stars) as that is an important part of our process and recognises the time I have spent assisting you. If you need me to clarify anything before you go - please get back to me on here and I will assist further as best as I can. Thank you
Expert:  Ben Jones replied 1 year ago.
My full response should be visible on this page. Could you please let me know if it has answered your original question or whether you need me to clarify anything else in relation to this? If your query has been answered I would be grateful if you could please take a second to leave a positive rating, selecting 3, 4 or 5 starts at the top of the page. Thank you
Customer: replied 1 year ago.
Hello Ben,Thank you for your reply.I realised sometime ago that the law allowed data to be kept for long periods. However, if that data is incomplete and inaccurate, as it has been held to be by the Ombudsman, and in my opinion any changes would in all probability not be possible without wholesale rewriting of much of the documentation, which would inevitably raise another set of questions, does this materially change the council's right of retention on the basis that 'Personal data shall be accurate and, where necessary, kept up to date.'?
Expert:  Ben Jones replied 1 year ago.
Hello, it does not affect their right to retention but they would have a duty to amend the data to ensure that it is accurate and up to date. However, if by updating it they have to start from scratch and have two sets - one current and one not, then there is a stronger argument that the older should not be kept much longer, unless actually required for the specific purposes for which it was obtained. How long that is really depends on the organisation and it is for them to try and justify the reasons for the prolonged retention. Hope this clarifies?
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 46227
Experience: Qualified Solicitor - Please start your question with 'For Ben Jones'
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