In a judicial review action, R (C) v Northumberland County Council & Anor [2015] EWHC (Admin) 2134, the Administrative Court (Simon J) has ruled that the data retention policy of Northumberland County Council is lawful.
The claimant (C) felt that he and his family had been the subject of a significant injustice in their dealings with Northumberland County Council, and that it held material about them as a result. C wanted all the data relating to the case to be destroyed. Northumberland County Council agreed to this, but the issue of principle still fell to be determined. The Information Commissioner was an interested party in the case.
The issue was whether it is lawful for Northumberland CC to have a policy of retaining child protection records for a period of 35 years after a case has been closed. In fact, the policy allows for a longer period of retention where the child is or becomes looked after (in which case the retention policy is 75 years from the date of birth) or adopted (in which case the retention period is 100 years from the date of the adoption order). C and the Information Commissioner contended that a proper retention period might be six years from the child’s 18th birthday, although it was accepted by all that it was for Northumberland County Council to justify its policy not for others to supply one.
Mr Justice Simon was clearly impressed by the evidence from Council staff as to the circumstances in which access to the data might be required long after the child reached his or her majority. Among the examples were access that might be relevant to siblings where parents had children many years apart and access by the data subjects themselves where requests may be of crucial importance to a sense of identity and emotional or mental well-being. The fact that the ICO had changed its stance on the policy, having at one time considered it lawful, may also have weighed with him.
Simon J regarded the suggestion that reviews might be carrid out at seven-year intervals as unduly burdensome. He accepted a statement from one member of staff of the Council:
The current retention policy provides for retention for a period long enough to ensure that it is improbable that information from a closed record will be of central importance in any future work to protect children. In some cases, it might in principle be possible to dispose of records after a shorter period – particularly in situations where an investigation found where an investigation has found no evidence that abuse or neglect [has] taken place – but it would be necessary to assess the risk in every case.
In the judge’s view, there was a need to keep the records for a substantial period, and certainly substantially longer than the period argued for by C and the Information Commissioner. While ‘ the period of 35 years is not the only possible period of retention, but in my judgment it falls within the bracket of legitimate periods of retention’. He therefore concluded that the policy ‘is in accordance with the law, has been carefully considered, adapted to the purposes for which it is required, and is applied proportionately and flexibly’.
