A recent decision of the Sheriff Court in Scotland is a reminder that the mundane and often tedious task of document disclosure can come with significant risks.
The anonymised judgment in Re XY which was published last week but delivered in November 2019, concerned an application to recover documents using a process akin to the standard document recovery process in chapter 28 of the Sheriff Court Ordinary Cause Rules (OCR). The documents were sought from XY, a local authority, on the eve of a proof in social work referral proceedings relating to a mother and her children. In what the court referred to as “apparent compliance” with the court’s (unopposed) order directing the identified documents to be disclosed, XY produced a bundle of heavily redacted documents. The redactions ranged from obscured words to entirely blank pages. The court considered that this “unilateral interference with the documents produced might amount to a form of contempt of court”.
The court fixed a hearing on the matter and invited a senior officer from the relevant department of XY as well as a member of the legal services department to attend and explain what had occurred. Senior staff of XY duly attended the hearing, explained that the redactions had been made on the basis of erroneous legal advice, unreservedly apologised and informed the court that an internal investigation had been commenced in response to the court’s enquiries.
It was explained that, prior to the service of the court order requiring production of the documents, a subject access request (SAR) under the data protection legislation had been served on XY with the intention of gaining access to the same documents. These had been produced on a redacted basis.
The court noted in relation to the data protection regime, that since an individual is entitled only to request his or her own personal data, the data controller may redact information from a SAR response which concerns third parties not covered by the request (the judge gave the example of the invitees to a birthday celebration for one of the children).
The correct approach where documents are to be produced in compliance with a court order under chapter 28 of the OCR is entirely different. A party responding to such an order must produce all the relevant documents to the party who made the application. Where there is a concern around confidentiality, the “confidential envelope” procedure set out in chapter 28 is to be followed. This requires the documents in question to be lodged with the court in a sealed envelope. The court hears submissions from the parties as appropriate before making a decision as to whether, and to what extent, they are to be disclosed. In this case, the court emphasised that, when producing documents in compliance with a court order, it is not for the parties to unilaterally reach their own conclusions about what is to be provided. The court is “the final arbiter when issues of relevance, admissibility or confidentiality arise” and the court will therefore decide whether there is any basis for redaction.
In this case, when the court order requiring production of documents was served on the Social Work Department of XY, that order was passed to XY’s Data Protection Officer who in turn passed it on to the Legal Department. The Legal Department advised that the redactions should be made. While the court held that this advice was wrong, it accepted that confusion had been caused within XY by the contemporaneous receipt of a SAR. The solicitors acting for the mother had attempted to obtain the records under two different regimes at the same time and “the efforts to comply with the [court order] were plainly conflated with and confused by the simultaneous compliance with the SAR for broadly the same material.”
In all the circumstances of the case, the court decided not to make a finding of contempt against XY. XY’s behaviour “could not be regarded as conduct which was intended to be offensive to the dignity and authority of the court”. The court accepted that XY had been confused by simultaneous requests, had escalated the matter appropriately, had apologised unreservedly and had made arrangements for staff to be offered appropriate training.
As the court highlighted, different responses are required to court orders directing production of documents under chapter 28 of the OCR and SARs issued under the data protection legislation. When responding to a SAR, the recipient may be legally obliged to provide a limited and/or redacted response. By contrast, where a court order is made requiring production, the recipient of the order will be obliged provide an unlimited response, subject to using the “confidential envelope” procedure.
Local authorities require to grapple with numerous document production obligations: court orders, SARs and freedom of information requests. The mechanical process of identifying relevant documents will be common to all regimes, but it is important to remember the differences between them. This decision underlines the potentially severe consequences of failing to do so.
The authors would like to acknowledge the contribution of Jessica Eaton, Trainee Solicitor, in preparing this article.