Problems accessing service records transferred from MoD to National Archives

[elfinblues]

Hello. Has anyone here had trouble receiving access to service records held by the National Archives? Over the past few years, I have requested and been sent copies of both my paternal (Army) and maternal (RAF) grandfathers' Second World War service records, the former coming from the Army Personnel Centre in Glasgow.

Just before Christmas, I again contacted the Army Personnel Centre to request the service record of my great-uncle, and supplied the necessary cheque, next-of-kin consent etc. They emailed to tell me that his record had been transferred to the National Archives as part of the Defence Records Management Project and that I should contact the National Archives if I still wished to apply for a copy. I did so, and yesterday received an email from them saying that "We are unable to open this record because all of the information is exempt under Section 41 of the Freedom of Information (FOI) Act 2000 until 2037. This means that we cannot make the record open to you or to the public in general."

Their email went on: "The FOI Act gives you the right to know whether we hold the information you want and to have it communicated to you, subject to any exemptions which may apply.
Section 41 (1) of the Act exempts information if (a) it was obtained by the public authority from any other person (including another public authority), and (b) the disclosure of the information to the public (otherwise than under the Act) by the public authority holding it would constitute a breach of confidence actionable by that or any other person. 
The information contained in the record relates to information that was given in confidence, the release of which could be actionable in court. Although, for the purposes of the FOI Act, Section 41 is an absolute exemption, I can confirm that we have taken into account the public interest defence test inherent within the common law duty of confidence in reaching this decision.
In this case, Section 41(1) applies to medical information documented in the record.
Please be aware that requests made under the Freedom of Information Act 2000 have to be treated as applicant blind. Therefore, being next-of-kin can have no bearing on the outcome of this request for information. Information released under FOI is released to the public at large, not just to a requester. This is why we have to review these records for sensitivities."

Can anyone out there with more experience than I help me to understand why the National Archives is refusing me access when the guys at the MoD Archives have already granted me access to two very similar documents (both my grandfathers')?

When the Army Records Centre sent through my grandfather's service record, they redacted a section about his medical history. That was fine - whilst it would have made for interesting reading and answered a few family questions, I had no issue with that. If the presence of medical information in my great-uncle's record is TNA's reason for refusing my request, then could they not just redact or omit that section, as the Army Records Centre had done? Their email did, after all, say "In this case, Section 41(1) applies to medical information documented in the record". But then, earlier in their email, they said "all of the information is exempt under Section 41 of the Freedom of Information (FOI) Act".

So, I'm disappointed, annoyed and confused. I sense a gargantuan, frustrating, spirit-crushing battle of wills coming with the faceless administrators of TNS that I stand no chance of winning.

Can anyone help me to understand, and to work out whether there is any way I'll be able to obtain from the National Archives such similar material as has already been supplied to me by the Army Personnel Centre?

Thanks so much in advance,
Steve

[degenerate]

That's an interesting development but not one that was unexpected. At the time the project was initiated, TNA said:

"As these are personnel records, they naturally contain a range of personal data including medical information. To protect the information in these records, closure will apply until 115 years past the date of birth of the individual. Whether or not the material can be open to all or closed fully or in part will be assessed on this basis or upon request under relevant data protection and freedom of information laws."

https://www.nationalarchives.gov.uk/about/news/mod-records-project/

Aside from some very specific situations regarding health records, there is no other legislation that I am aware of that grants a right to access the otherwise embargoed data of a deceased person.

While I am equally frustrated from a genealogical perspective,  I am pleased that this branch of the civil service at least is taking their legal obligations to our data seriously.

[Andy J2022]

At the time the project was initiated, TNA said:

"As these are personnel records, they naturally contain a range of personal data including medical information. To protect the information in these records, closure will apply until 115 years past the date of birth of the individual. Whether or not the material can be open to all or closed fully or in part will be assessed on this basis or upon request under relevant data protection and freedom of information laws."

https://www.nationalarchives.gov.uk/about/news/mod-records-project/

Aside from some very specific situations regarding health records, there is no other legislation that I am aware of that grants a right to access the otherwise embargoed data of a deceased person.

I can help fill in that gap in your knowledge.

While, yes, it is good that any government department takes its responsibilities seriously, TNA's attitude is problematic as it is based more on their own internal guidelines than on what the law actually says. Leaving aside medical data* which I think most genealogists recognise is a special category, the general data which is held about us is subject to the Data Protection Act 2000 which incorporates into UK law the EU GDPR. The GDPR (and therefore the DPA) does not apply to anyone who is deceased (see Recital 27 of the GDPR and the ICO's explanatory note here: https://ico.org.uk/for-organisations/guide-to-data-protection/guide-to-the-general-data-protection-regulation-gdpr/what-is-personal-data/what-is-personal-data/#pd6).

There is no legal requirement for the TNA's 115 years after birth rule. If the person applying for the record can reasonably satisfy the organisation holding the record that the data subject is dead, (ie a death certificate) then there is no need for a catch-all 115-years-after-birth-just-to-be-on-the safe-side rule. The MOD applied these rules correctly and pragmatically, whereas TNA is being exceptionally job's worth about it.

The problem here seems to be a conflation of the GDPR rules, the Freedom of Information Act 2000 (specifically sections 40 and 41) and section 5 of the Public Records Act 1958 as amended by the PRA 1967).



* The rules concerning access to medical records, including those of a dead person, are set out in the Access to Health Records Act 1990

[elfinblues]

Hmm, interesting. Thank you, both. I very much appreciate you taking the time to share your thoughts.

The email I received from TNA said that, if I was dissatisfied with the handling of my request or with the decision reached, I could ask for an internal review (to be submitted within two months) and ask the Information Commissioner to investigate.  Might you think it would be worth pursuing this? I don't have much appetite for a battle of wills with the TNA but, at the same time, I am frustrated by the fact that had I requested the service record just a few months earlier from the MoD then I might have got a different result.

[elfinblues]

Related, if the TNA has a 115-years-after-death rule, do you know why they have said that all the information in the service record is exempt until 2037? My great-uncle was born in December 1910, so 115 years from then would be 2025 - not 2037. Am I missing something?

Thanks very much again for your help.

[degenerate]

I can help fill in that gap in your knowledge.

I chose my words carefully when I said "there is no other legislation that I am aware of that grants a right to access the otherwise embargoed data of a deceased person". You have not filled that in but merely cited GDPR which is about rights of living people to access their personal data. It does not grant a right to access other people's data whether they are living or deceased.

The right to access other people's data in a governmental record context comes from FoI as you say but the TNA have clearly cited the "breach of confidence" exception as their concern. This is broader than (but includes) medical records and data that would otherwise have been in the the scope of GDPR were the data subject still alive. The obligation of confidence could still remain because it could relate to another party.

You may find the MOD was more pragmatic, and I would agree, but each organisation is entitled to assess its own attitude to risk bearing in mind the resources available to it and any legal protection that it might have, sui generis or otherwise. They may simply feel that they don't have the resources to redact records to an acceptable level of risk. This is not to say that there aren't ways of working around it but it would be at some financial cost.

It isn't an irrational position and I can see their legal team making this argument.

[BumbleB]

Related, if the TNA has a 115-years-after-death rule, do you know why they have said that all the information in the service record is exempt until 2037? My great-uncle was born in December 1910, so 115 years from then would be 2025 - not 2037. Am I missing something?

Thanks very much again for your help.

Perhaps you misunderstood - the rule is 115 years after DEATH, nor after birth!!

[elfinblues]

Well, in that case, it seems that family historians seeking to learn about their Second World War ancestors are going to be scuppered by these 'developments'. Grrr.

[degenerate]

Perhaps you misunderstood - the rule is 115 years after DEATH, nor after birth!!

The rule is after birth, not death.  This is to allow for a full life plus a safety margin for any outstanding obligation of confidence.