You are allowed to see what is written about you.

Two different rights, often confused

People use “FOI” as shorthand for asking a council anything. It is worth separating the two rights properly, because using the wrong one is the most common reason a request goes nowhere.

A subject access request (SAR) is your right to see the personal information an organisation holds about you. It comes from Article 15 of the UK GDPR and the Data Protection Act 2018. This is the route to your social care file: case notes, chronologies, assessments, emails about you, minutes of meetings about your family, records of phone calls.

• —It is free.
• —There is no form. An email saying “this is a subject access request for all personal data you hold about me” is legally valid.
• —They must respond within one calendar month. They may extend by a further two months if the request is genuinely complex or voluminous, but they must tell you within the first month that they are doing so, and why.
• —You can ask for it in a particular format, and you are entitled to an explanation of what the file means and who they have shared it with.

A freedom of information request (FOI) is a right belonging to anybody — you do not have to be involved — to see recorded information that is not personal data. Freedom of Information Act 2000. This is the route to the system behind your case: threshold documents, panel terms of reference, the local authority’s own policies and procedures, training materials, contracts with assessment providers, how much was spent on legal fees, how many section 47 enquiries were opened last year, how often the authority departs from its own guidance.

• —Also free (in almost all cases).
• —20 working days to respond.
• —Anyone can make one, including anonymously.

A practical note. Your own file is not an FOI matter, and an FOI request for it will usually be refused or quietly converted into a SAR, costing you weeks. Conversely, a SAR will not get you the authority’s policy documents, because they are not your personal data. Serious requesters often send both, separately labelled, on the same day.

Who these rights apply to

Local authorities are public authorities for both purposes. Cafcass is also a public authority subject to the Freedom of Information Act, and a data controller for subject access — so you can make both kinds of request to Cafcass directly. In Wales, Cafcass Cymru sits within the Welsh Government, and requests go to the Welsh Government’s information rights team.

The same applies to police forces, NHS trusts, schools and academies, and health boards, all of which may hold material that has found its way into your case.

An honest word about “any information they hold”

You will read, on other sites, that a local authority is obliged to hand over everything. That is not true, and believing it will set you up for a bruising disappointment.

Both regimes contain exemptions. Some are entirely legitimate. What is also true — and much less widely understood — is that authorities routinely apply those exemptions far more widely than the law permits, because over-redaction carries no penalty and disclosure sometimes does.

What they will hold back, and when they are entitled to

Other people’s personal data

Your file will mention your children, your relatives, neighbours, referrers. The authority must balance your right of access against the other person’s privacy, and may redact. But note the limits:

• —Redaction must be of the third party’s data, not of whole documents that happen to mention someone. Blacking out an entire page because one line concerns another person is over-redaction.
• —Information about professionals acting in their professional capacity — the social worker’s name, their views, what they wrote — is generally not protected third-party data. If your case notes have had social workers’ names and opinions removed, that is very often wrong.
• —Where a document is about both you and your child, it is usually the case that most of it is your personal data too.

Serious harm (social care records)

Schedule 3, Part 3 of the Data Protection Act 2018 allows social work data to be withheld where disclosure would be likely to cause serious harm to the physical or mental health of any person. This is a real and sometimes proper exemption. It is also narrow: “serious harm” means serious harm, not embarrassment to the authority, and not distress to the reader. It must be applied to specific passages, with reasons.

Court records

Section 32 of the Freedom of Information Act is an absolute exemption covering information held only because it is contained in a document filed with a court. Note the words “held only because”. The underlying social work record, held by the authority in its own right for its own purposes, is not exempt merely because a copy of it later went into a bundle.

Legal professional privilege

This is where most requests die. It deserves its own section.

“That’s privileged” — and the many times it is not

When a request touches Legal Services, the standard reply is that the material is subject to legal professional privilege — under Schedule 2, Part 4, paragraph 19 of the Data Protection Act 2018 for a SAR, or section 42 of the Freedom of Information Act for an FOI request.

Sometimes that is correct. Often it is asserted reflexively across a whole department. Here are the limits worth knowing, and worth quoting back.

• 1.Privilege attaches to documents, not to departments. There is no exemption for “material held by Legal Services”. Each document must be assessed on its own terms. An authority that says “we do not disclose Legal’s file” has not performed the exercise the law requires, and you can say so.
• 2.It must be a communication for the dominant purpose of giving or receiving legal advice. A great deal of what sits on a legal file is not that. Diary entries, chasing emails, instructions to book a hearing, notes of who attended a meeting, a lawyer forwarding a document without comment, purely administrative correspondence — none of it attracts privilege simply by being in a lawyer’s inbox.
• 3.Facts do not become privileged by being told to a lawyer. If a meeting took place, the fact that it took place — who was there, when, that a decision was made — remains disclosable. You cannot launder a record out of existence by copying in a solicitor. If your disclosure refers to a conversation or meeting that never appears anywhere in the released material, that gap is a fair thing to press.
• 4.Privilege can be waived, and confidentiality can be lost. Privilege depends on confidentiality. Where advice or correspondence has been shared beyond the client — with the police, a school, a health trust, a children’s guardian, another local authority, a contracted provider — the authority may well have lost the ability to claim it. And an authority that relies on its legal advice in a statement or position statement (“we are advised that…”) may have waived privilege over that advice; you cannot deploy the helpful half and withhold the rest.
• 5.In children’s proceedings, litigation privilege is significantly narrower. In Re L (A Minor) (Police Investigation: Privilege) [1997] AC 16, the House of Lords held that because care proceedings under Part IV of the Children Act 1989 are inquisitorial rather than adversarial in nature, litigation privilege has no place in relation to expert reports obtained with the court’s permission. Legal advice privilege survives — but the broader “prepared for litigation” claim, which authorities lean on heavily, is on much weaker ground in children’s cases than in ordinary civil litigation.
• 6.In-house lawyers wear two hats. Local authority solicitors give legal advice, and they also give policy, operational and management advice. Only the first is privileged. Advice about presentation, reputation, media handling or internal process is not legal advice merely because a lawyer gave it.
• 7.Privilege does not protect wrongdoing. The “iniquity” exception means privilege cannot be claimed over communications made in furtherance of a fraud, a crime, or conduct the courts would regard as iniquitous. This is a high bar and should not be alleged lightly. It exists.
• 8.Under FOI, privilege is a qualified exemption. Section 42 is not absolute. Even where privilege is properly established, the authority must go on to weigh the public interest in maintaining the exemption against the public interest in disclosure, and disclose if the balance favours release. The Information Commissioner treats the inherent public interest in privilege as strong — but tribunals have ordered disclosure, particularly where the advice is old, the litigation risk has passed, or the substance has already been aired. An FOI refusal that cites section 42 and stops there, with no public interest reasoning at all, is defective on its face.

When they miss the deadline, or refuse

Write it down as you go. The single most effective thing you can do is keep a plain chronology: date of request, date of acknowledgement, dates of every chaser, date of every partial response, what was promised and when. Regulators respond to dates. Feelings, however justified, are much harder for them to act on.

Step one — go back to them

• —For an FOI request: you are entitled to an internal review. Ask for one in writing. There is no statutory deadline, but the Commissioner expects it within 20 working days, exceptionally 40.
• —For a SAR: complain to the organisation and copy in its Data Protection Officer, whose contact details must be published. Set out precisely which parts of the request remain unanswered and which exemptions you are disputing, and why.

Watch for a common manoeuvre: an overdue request being folded into an unrelated review, so the original clock quietly disappears. If that happens, say clearly and in writing that you regard the original request as still outstanding, and give its reference.

Step two — the Information Commissioner’s Office

The ICO is the independent regulator for both regimes. You can complain at ico.org.uk/make-a-complaint or on 0303 123 1113.

• —Complain about an FOI response only after you have asked for an internal review, or waited a reasonable time for one.
• —Complain about a SAR after giving the organisation a chance to put it right — normally allow them a month from your complaint.
• —Send your chronology and the correspondence. Be specific about what you say is wrong. “They refused under privilege without assessing individual documents” lands better than “they have hidden everything.”

Be realistic about what the ICO does. It can require a public authority to respond, and it can decide that an exemption was wrongly applied. It works through a queue, and cases commonly take many months. It will not investigate your care proceedings, and it cannot award you compensation — a claim for damages under Article 82 UK GDPR is a separate matter for the county court, and one to take advice on.

Step three — the tribunal

If the ICO issues a decision notice on an FOI complaint and you disagree with it, you can appeal to the First-tier Tribunal (Information Rights). It is free, it is used by unrepresented people every week, and it decides the question afresh rather than merely reviewing the ICO.

Two other routes worth knowing

The children’s social care statutory complaints procedure. A separate, three-stage process for complaints about how you or your family were treated. If it does not resolve matters, you can take it to the Local Government and Social Care Ombudsman. Note the important limit: the Ombudsman generally cannot look at matters that have been, or could be, considered by a court.

Cafcass complaints. Cafcass has its own complaints procedure, and beyond it the Parliamentary and Health Service Ombudsman (via an MP). But complaints about the content of a court report, or the professional judgement expressed in it, must be raised with the court — not through complaints. Challenge the report in the proceedings.

Two cautions we would be wrong not to give you

A subject access request is not a substitute for disclosure in your proceedings. It runs on its own timetable and can take months. If you are in live proceedings and need a document, the faster and stronger route is almost always an application to the court for specific disclosure. Tell your solicitor what you are missing. Use SARs and FOI for the wider picture, the history, and the things the authority would rather not put before a judge.

Be careful what you do with what you receive. Information relating to proceedings held in private about children is protected by section 12 of the Administration of Justice Act 1960 and by rule 12.73 of the Family Procedure Rules. Publishing documents or details from your case — including online — can be a contempt of court, however strongly you feel and however unjust the position is. If you want your case to be reported, there are lawful ways to do it: speak to a solicitor about the transparency reporting provisions, or contact a legal blogger or accredited journalist.