APPLICATICIN/REQUETE N° 10454/83 Graham GASKIN v/the UNITED KINGDOM Graham GASKIN c/ROYAUME-UNI DECISION of 23 Jannary 1986 on the admissibilil.y of the applicaticn DÉCISION du 23 janvier 1986 sur la recevabilité de la requêt e Ardcles 8 and 10 of the Cenvenlion : Has the right to respect for private 'ife a~nd the freedom to receive inforrnation been disregarded where the authorities n.fisse to letan individual have a file concenting the period of his in)àncy wihen he was ,'n care, the file fonning the person's principal source of information about hiepast? (Compïaine declared admissible). Article 25 of the Convention : The continued retention by the authorities of personal data on the private life of an applicant constitutes a continuiag situation which permits an applicant to claim to be a victim of a violation . Article 26 ofthe Convendon : Rerention by the authorities of personal data relating to the private life of the applicanr which he wishes to see at first hand : a remedy to have the data disclosed, in confJdence, to a third party is not an effective remedy. Artleies 8 et 10 de la Convention : Ya-t-il méconnaissance du droit au re:~pect de la vie privée et de la liberté de recevoir des informations du fait que l'administration refuse de communiquer à l'intéressé un dossier qu.i concerne la période de son enfance pendant ïaquelle il était pupille d e l'Assistance publique et qui constitue la principale source de renseignements sur son passé ? (Grief déc!aré recevable) . Articie 25 de la Convention : La rétention persistante par l'Adntinistration de données personnelles sur la vie privée du requérant constitue une situation continue permenanf à ce denrier de se prétendre victime d'une violation . Article 26 de la Convention : S'agissant de la rétention par l'Adrninistration de données personnelles sur la vie privée du requiérant et dont il tiem à avoir connaissance 91 de première main, un recours tendant àJàire communiquer ces données à un homme de confiance seulement n'est pas un recours efficace. THE FACTS ((rançais: voir p. 102) The facts as they have been submitted on behalf of the applicant, a British citizen born in 1959 who is currently living in Denmark, by his solicitors, Rex Makin & Co of Liverpool, may be summarised as follows :InDecember1959theapplicantwastakenintothecareofLiverpoolCity Council ("the local authority") under Section 1 of the Children Act 1948 following the death of his mother . He remained in the care of the local authority until he attained his majority in 1977 . During the major part of this period the applicant was boardcd out with various foster parents, subject to the provisions of the Boarding- Out of Children Regulations 1955 . Under the terms of those regulations the local authority was under a duty to keep certain confidential records concerning the applicant and his care . The applicant contends that he was extremely badly treated in care, including treatment amounting to ill-treatment, and since his majority has wished to obtain details of where he was kept and by whom and in what conditions, in order to be able to substantiate his allegations . He contends that he has suffered treatment which was contrary to Articles 3 and 8 of the Convention . On 9 October 1978 the applicant visited the offices of the Social Services Department of the local authority and was informally shown his case file . It appears that the applicant mangaged to leave the building with the fle, which he subsequently returned on 12 October 1978 . In 1979 the applicant sought to bring proceedings against the local authority for damages for personal injury which he contends was caused by its negligent failure to carry out its duties towards him . In connection with these proceedings the applicant niade an application under Section 31 of the Administration of Justice Act 1970 ("the 1970 Act") for discovery of the local authority's case notes and records made during his period in care. Section 31 of the 1970 Act provides : "On the application, in accordance with rules of court, of a person who appears to the High Court to be likely to be a party to subsequent proceedings in that court in which a claim in respect of personal injuries to a person or in respect of a person's death is likely to be made, the High Court shall, in such circumstances as may be specified in the rules, have power to order a person who appears to the Court to be likely to be party to the proceedings and to be likely to have or to have had in his possession, custody or power any document s 92 which are relevant to an issue arising or likely to arise out of that claim - (a) to disclose whethet those documents are in his possession, custody or power ; and (b) to produce to the applicant such of those dcauments as are in his possession, custody or power ." The relevant rule referred to is Order 24 Rule 7 A of the Rules of the Supreme Court, which provides that an application tinder Section 31 of the 1970Act should be made. by originating sumrnons in the High Court .Theapplicant'soriginatsgsuuunonsrequestingdiscoveryofthecasefileand records -,ame before the Queen's Bench Division of the High Court on 22 Fébrua;ry 1980. It was conceded by the local authority that documents which would be relevant to the applicant's proposed proceedings for personal injuries were- held by it, but it objected to the grart of discovery on the ground that disclosure and production woutd be contrary to the public interest . It was contended for the local euthority that the keeping of detailed case rrcords on every child in care was necessary to ensure that the authority's judgments arid decisions made in respect of such children could be based upon tLe fullestpossible information . In comrast with the natural parents, who had their awn experience m draw on in taking such decisions in relation to their chi7d or diildren, the local authority, with chemging personnel, had no substitute for full and frank records e.ompiled by those in contact v 3ith , and responsible for, the mre of any child iri eare . The principal contributors to these case records were medical practitioners, school :eachers, police ana probation officers, social workers, health visitors, foster parents and residential school staff . Their contributions to the case: recorc.s were treated in the strictest xnfidence and it was considercd by the local authority to be axiomatic to the proper condnet of the care s;3stem that such records be as full and frank as possible. The authority therefore contended that, if discovery were ordered, the public interest in the proper operatian of the child care service would be jeopardised since the coritributors to the records would be reluctant to be frank unless they could be sure that the reports would be protected from disclosure . The. applicant contended that the inforrnation helol by ihe loc&1 authority in the 1'orm of the records and case file was decisive as evidence in his proposecl proceedings for personal injuries against the local authority, and that it should therefore be made available to him on tlre gercral principles of (liscevery . Fle further argued that it was also in the public interest that some measure of reviev 3 of the standard of care provided by a local authority in relation to a child in its care be available . The juclge referred to the principles of common law relating to the disclosure of confidential infoi-mation otherthan that between a'aywer and client which had been set out in an earlier judgtnent of the House of Lords . He summarised these as follows : i) tn civil proeeedings a judge has no discretion #o direct a party that he ueed not disclose information received in confidence which is bith relevant and necessary for the attainment or' justice in a particular case . 93 ii) However, where a confidential relationship exists and disclosure would be in breach of some ethical or social value involving the public interest, the Court has a discretion to uphold a refusal to disclose relevant evidence if it considers on balance that the public interest would be better served by excluding such evidence . iii) The fact that the relevant information was communicated in confidence does not necessarily mean that it need not be disclosed, but where the subject matter is clearly of public interest the additional fact that to break the seal of confidentiality would endanger that interest will in most (if not all) cases probably lead to the conclusion that disclosure should be withheld . iv) Since the disclosure of all evidence relevant to the trial of an issue is at all times a matter of considerable public interest, the question to be determined is whether it is clearly demonstrated that in the particular case the public interest would nevertheless be better served by excluding evidence despite its relevance . If on balance the matter is left in doubt, disclosure should be ordered . The judge did not read the records in question, but proceeded to the "balancing act" of assessing on the one side the desirability, which could not be doubted and should be heavily emphasised, of full discovery, especially where the applicant sought compensation for an alleged failure to take the proper care of him in infancy, against the important goal of the proper functioning of the child care services . Although he recognised that the proper functioning of the child care services could be enhanced by judicial investigation in the course of a trial after full discovery, he preferred to take a wider view that the records kept on children in care were the only substitute for the intimate and detailed knowledge which eontes from the experience of natural parents of their children's behaviour and ability, and that it was of cardinal importance that such records and reports should be full and frank . This could only be ensured if they remained confidential . On balance therefore the judge held : "I am left in no doubt that it is necessary for the proper functioning of the child care service that the confidentiality of the relevant documents should be preserved. This is a very important service to which the interests - also very important - of the individual must, in my judgment, bow . I have no doubt that the public interest will be better served by refusing discovery and this I do . " The applicant appealed from this decision to the Court of Appeal, notably on the grounds that the judge should have examined the documents in question before reaching his conclusion as to whether or not to allow discovery . On 27 June 1980 the Court of Appeal dismissed the applicant's appeal, confirming the reasoning adopted by the judge at first instance and holding that the public interest in the proper funetioning of the child care service required that the confidentiality of the documents in the possession of the local authority should be preserved and that the judge had been right not to inspect the documents . The applicant sought advice o n 94 the question of lodging an appeal to the House of Lords, and was advised on 1 Jnly 1980 by Counsel who had represented him in the proceedings, that leave te appeal from th e decision ot the Cou rt of Appeal should be sought . This was done, but leave to appeal to the Flouse of Lords was refused. On 2 1 October 1980 the loe21 authority passed a Resolution relating to access to personal files held by the Social Se rvices Department setting up a sub-cornmittee to make r'ecomrnendations on access tu personal social senices files, and to investigate the allegations in the case relating to the applicant . This Child Care Records Elub-Conunittee ("the subcommi ttee") passed a Resolui:ion dated 17 June 1932 which recommended that relevant child care records should be made available to ex-dients of the local authority ouce all information obtained from members of the medical prol'ession or from the police service had been excluded from such records. In relation to the applicant the sub-committee stated that it had c.arefully considered all the papers relating to him and found no evideace that would indicate "that the officers concerned carried out their du .ies in othe r than a caring manner". There were various aspects of the applicants treatment which might cause com;ern, but ihe sub-committee recommended tltat, subjeci to the restrictions set out above, the records should be madeavailable to the applicant who should be entitled to take copies i P he so wished . This Resolution was approved by the Social Service Committee of the local authority ou 30 June 1982, with one amendinent to the effect thal. wheri a request is received from an appropriate peraon for the disclosure of all the information kept on the personal _ilè relating to that individual, the Director of Social Services shoulcl be instructed to request all members of the inedical profession and the police service for their permission to disclose information and reports which they have stibmitted to that particular file. blr . J.H . Lea, a member of ihe local authority, who was also a membér of the sub-committee, dissented from the sub-committee's decision of 17 June 1982 . He sought ancl obtained the consent of the Attorney General to bring a relator artion in which ae applied ex parte foi a declaration and an injunction to prevent the proposals of the sub-commi ttee set out in the. Resolution of 30 June 1982 from being adopted . On 26 July 1982 Balcombe J . ordered that the local authority be restrain,d from disclosing to any person records rnaintained by it relating to the welfare of children under the Boarding-Out of Children Regulations 1955, or the Adoption Agencies Regulations 1976, or otherwise, e :ccept as permitted by these Reg;ulations and except for the purpose of enabling the la .al authority to car ry ont its statutory duties, until the trial of the action or until further order. 'Ihe l,oca1 authority passed a Resolution on 28 July 1982 instructing its officers not to implement the Resohrtiou of 30 June 1982 until the proceedings brought by Mr. Lea were detennined or withdrawn . . yï On 26 January 1983 the local authority approved a further Resolution of the sub-committee relating to access to personal social services records . This Resolution reiterated the general terms of the earlier Resolution of 30 June 1982, added certain further restrictions upon the disclosure of intbrination to clients of the Social Services Department, and resolved that such information should, subject to the restrictions, be shown to those clients on their request after I March 1983. As regards the applicant, it was resolved to contact the various suppliers of the information contained in the file with a view to disclosure . The local authority's officers were instructed not to implement this Resolution until the action brought by Mr . Lea was withdrawn . This action was in fact discontinued on 13 May 1983 . On 29 June 1983 the local authority confirmed a further Resolution to the effect that the Resolution of 26 January 1983 would be impletnented as from I September 1983. On 26 August 1983 proceedings were instituted by the Attorney General in the High Court for leave to apply for judicial review of the Resolution of 26 January 1983 as amended by that of 29 June 1983 to allow disclosure of and access to, social work records on the grounds that the Resolution was, and that the implementation of the Resolution by the local authority would be, contrary to law and/or outside the legal powers of the local authority . On 31 August 1983 leave was granted to the Attorney General to seek a declaration and an injunction restraining the local authority from carrying into effect the Resolution of 26 January 1983 as amended . The local authority confirmed a further Resolution on 9 November 1983 setting out further grounds upon which certain information could be withheld from a client requesting it and providing for suitable training programmes for staff to enable them properly to carry out the policy of making the records available to clients . The Resolution was not to be itnplemented until the action by the Attorney General was withdrawn or otherwise disposed of. The Resolution provided that the applicant's file should be made available to him if the contributions to the file consented and that the various contributors of the information contained in it should be contacted for their permission for the release of that information . This process has not been completed ; its implementation is associated with the wide ranging consultation which is taking place with a number of bodies concerned, including the police authority, professional bodies, the appropriate health authority and the appropriate trade unions . Following the passing of this Resolution the Attorney General withdrew the proceedings against the local authority . COMPLAINTS The applicant complains that he is unable to have access to the case file held by the Social Services Department of the local authority which relates to the perio d 96 spent by the applicant in care . The applicant seeks access to the file in order to be able to how badly he was treated in care, how poor the sysiem wris, and how he has personally suffered as a resuSt of the treatment received by him whilst in care . The applicant also seeks access to the file to enable him to seek treatment for the psychological problems which he argues sr.em from the treatment received by him while in the care cf the local authority . The applicant contends that if the file were to be prodmed, it would show that he has suffered de;rading treatment and that the local authority has not upheld his right to respect foi- his private . life in breach of Articles 3 and 8 of the Convention . He therefore alleges that the, local authority's refusal to girant him access to the file is in breach of Article 10 of the Convention . He also invoM es Article 13 of the Convention and Article 2 of Protocol No . 1. THE LAW (Extract) 1 . The applicanl complains about the refusal of the local authority to give him access to the file relating to his period speni in care . The applicant was in carefrom 1959 to 1977, wheu he reached his majority . He contends [hat during this period lie was ill-treated and that the information in the files continues to be of significance to him. The applicant'states Ihat he, is no longer seeking access to the case file in order to enable hiin to institute legal proceedings . He argues that such access is necessary to him in order to attempt to cope, with the psychological problems which he claims to suffer as a result of the time spent by him in care, and which contintie to affect hirn adversely. In i-espeet of Ihis complaint the proceedings for discovery whieh the applicant took in ^.980 are not relevant since they related only to discovery prior to a claim tor damages for pei-sonal injuries. Nevertheless it remainszo be ccnsidered whether the applicant has complied with Article 26 of the Convention in respect of the local authority's most rec,ent express refùsal to allow him access to the file, made on 26 January 1983 aud its contïnuing refusal since that date . The Commissior must first consider whether the applicant has exhausted all domestic re,nedies in respect of this refusal, according to the generally recognised rules of international law . The Government submit that che applicant has failed to exhaust all dornestic remedies available to him in that he tias not sought relief pursuant to Section 33 (2)(b) of the 1981 Act . "Phis provision authorises the Court to order disclosure of the records to th.e applicant's legal, medical or professional adviser, taus enlarging the powers previously enjoÿed by the Court pursuant to Section 31 of the 1970 Aci:, which provision only authorised disclosure to the applicant himself. The aplplicant submits that he would not have reeeived legal aid to enable him to make ;uch an application, which would in any event be bound to fail in view o f 97 the decision of the Court of Appeal concerning his previous application under Section 31 of the 1970 Act . Moreover, he argues that even if such an application were to succeed, it would not satisfy his claim since he wishes to see the records himself and does not seek to bring legal proceedings against the local authority . In these circumstances the Commission does not consider that the possible remedies offered by Section 33 (2)(b) of the 1981 Act can be considered as "effective and sufficient" in relation the substance of the applicant's complaint, and thus a remedy which he must pursue according to the generally recognised rules of international law . The Commission must also examine whether the applicant has complied with the six months' rule contained in Article 26 of the Convention . However, it notes that the applicant complains about a situation in which, in view of the resolutions passed by the local authority and the proceedings which were issued by the Attorney General, he has been and continues to be, refused access to the case files about his period in care. In view of the continuing situation about which the applicant complains, the six months' rule has no application to this aspect the present case . It follows that the applicant has satisfied the requirements of Article 26 of the Convention in respect of this aspect of his complaint. 2. The Commission must also consider whether the applicant is able to claim to be a victim of a violation of the Convention within the terms of Article 25 para . 1 of the Convention, which provides, as far as relevant, as follows : "The Commission may receive petitions addressed to the Secretary-General of the Council of Europe from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in this Convention .. ." The applicant contends that his is a continuing complaint, owing to the continuing refusal of the local authority to allow him access to the file relating to the period which he spent in care . The applicant attained his majority in 1977, since which time he has sought access to his file in order to find out about his past and childhood and to identify the nature of the treatment he received in an attempt to seek medical help for the continuing psychological problems which he claims to suffer because of his experiences wtiilst in care . The Government submit that the applicant cannot claim to be a victim since he obtained access to the records relating to him kept by the Social Services Department of the local authority on 9 October 1978, and he retained them until 12 October 1978 . The applicant submits that, although he did have the records in his possession during that period, he was not in a satisfactory mental condition, nor had he received 98 sufficient educatiori whilst in the care of the local autliorit_v, to be ; able to consider the volu:ninous recnrds during that time . The Commission considers that the limited access to his file enjoyed by the applicam. in October 1978 does not deprive him of his capacity as a victim within the meariing of Article 25 para . I of the Corivention in regard to his complaint about the local authority's subsequent and continuing refusal to grant Itim access to the documents which is the subject of the present application 3 . The applicant contends that the local authority's contirming refusal to grant him access tc the file reaating to his period in care fails to respect his prlvate life, contraty to Article 8 of the Convention, which provides as follows : "1 . Everyone has the right to respect for his private and family life, his hon-ie anc hir, correr,pondence. 2. There shall be no interference by a public authoriqwith the exercise of this right e.xcept such as is in accordance with the law and is neeessary in a deraocratic society in the interests of national security, public safety ar the ecanomic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the prctection of the rights and freedoms of others ." The applicant submits that the local authority's refusal to inake the records available fails to respect his private life sinr_e it means tbat he carinot seek medical i. ielp for I»s psychological problems which originate in rhe treatment received ty hitn whilst in the care of the local authority. He also contends that the refusal of his access to the file is contrary to Artcle 10 of the Convention and specifically his right to receive information . Art- !.cle 10 provides : "1 . Everyone has the right to freedom of expression . This right shallinclude frecdorn to hold opinions ancl to receive and iinpart infonnation and ideas witliout interference by public authority and regardless of frontiers . This Ar. icle shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. 'The exercise of these freedoms, since it carries wilfi it duties and responsïbili ;ies., may be subject to such fonnalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national sec.urity, territorial integriey or publir, safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of r,he reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality o1'the judiciary." 99 The Government submit that the file in question does not constitute part of the applicant's private life and that this part of the application is consequently incompatible ratione ntateriae with the Convention . Alternatively, they submit that the compilation of the file on the applicant was in fact the means adopted by the local authority for ensuring respect for his private life by collecting and recording information and reports on his development and welfare in order to enable the local authority to mirror, to the extent possible, the experience of natural parents . With regard to Article 10 of the Convention the respondent Government submit that this Article does not confer a right to receive information from the State if the State is not willing to provide it ; this complaint is therefore incompatible ratione materiae with the Convention . In the alternative they contend that there has been no interference with any right conferred by Article 10 since the applicant did in fact have access to his file for the period of three days in October 1978 . In the further alternative, they submit that any interference with the applicant's rights under Article 10 para . I is justified under the terms of Article 10 para. 2 as being necessary in a democratic society either "for the protection of the reputation or rights of others" or "for preventing the disclosure of information received in confidence" . The applicant submits that none of the derogations contained in Article 10 para. 2 are referable to the present facts, the English courts having refused to deal with the case on its merits and simply applied a blanket privilege . He submits that the interference with his rights cannot, in any event, be said to be "necessary in a democratic society". The problem of the extent to which the mere existence of records containing information about an individual to which he is refused access may constitute an interference with the individual's right to respect for his private life as guaranteed by Article 8 of the Convention has arisen in Application No. 9248/81, Leander v . Sweden. The Commission was of the opinion in its Report of 17 May 1985, drawn up pursuant to Article 31 of the Convention, that the extent of any interference depends upon the contents of the records and the use to which such information is put. With regard to the interpretation of Article 10 of the Convention, the Commission recalls that it has previously considered the question as to what sorts of information are covered by the freedom to receive information referred to in Article 10, inter alia in the decision on the admissibility of No . 8383/78, X. v. the Federal Republic of Germany, Dec . 3 .10.79, D.R. 17 p. 227. In that applicatioa the Commission recognised that : ` . . . it follows from the context in which the right to receive information is mentioned in [Article 10] that it envisages first of all access to general sources of information which may not be restricted by positive action of the authorities, unless this can be justified under the second paragraph of Article 10. However , 100 even assuming that the right to receive information may under certain circumstances ilielude a right or access by the interested person to documents, whieh although not geraerally accessible, are of particular importance to his own position, it must be observed that, in the present case, there is no question of the applicant being as suelt denied access to . .. specific information .. . " . In its decisiou on the admissibility of No . 8878/80, X . v . Ireland, Dec . 7 .12 .81 (unpublished) the Commission again recolmised that : "Although . . . Article 1 0 is primarily intended to guarantee access to general sources of information, it cannot be excluded that in eertain cimumstances, it includes a right of access to documents which are not generally accessiole . . . . The C'ommission is not of the opinion, however, that Article 10 imposes an obligation ou state authorities to publish such information, as opposed to facilitating access to them . " In the prescnt case, the Comnrission first notes that a file re :ating to the applicant's treaunent in care does indeed exist . This was expressly conceded by the local authority in the proceedings issued iy the ayplicant under Section 31 of the 1970 Act and the present case is therefore to be distinguished from an attempt by an individual to establish whether or not such a file exists . The file contains records of the applicant's whereabouts ancl life from the age of six months until his majority. It contains information compiled from a vatiety of sources and was intended, in the submission of the respondent Government, to provide the local authority, during the period which the applicant spent in care, with a complete i-ecord of the applicant's development during his childhood such as might normally be in the memory of a ciild's parents . The nature of certain of the information which must be contained in these records concerns highly personal aspects oiF the applicant's childhood, development and history .. Although its usefulness to the local authority has now lapsed in view of the fact that the applicant ceased to be iri care in 19'77, its relevance to the applicant coritinues, since it appears that the file may provide the applicant's principal source of information about his past and formative years . In these circumstances ttte Cotnmission considers that the applieant's complaint of his continued lack of access to the case-file cannot be considered to be ineompatible ratione tnateriae with eirlrer Article 8 or Article 10 of the Convention . The Commission finds that th: s complaint raises difficult questions of fact and law as to the interpretation and application of Articles 8 and 10 of the Convéntion which cm only be resolved by an examination of the merits . It follows that these complain;s cannot be declared nianifestly ill-foundud and are therefore adrnissible, no otier ground for inadmissibility having been established. 101