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General => Armed Forces => Topic started by: elfinblues on Friday 20 January 23 09:29 GMT (UK)
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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
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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.
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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 (https://www.legislation.gov.uk/ukpga/2000/36/section/40) and 41) and section 5 (https://www.legislation.gov.uk/ukpga/Eliz2/6-7/51/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 (https://www.legislation.gov.uk/ukpga/1990/23)
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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.
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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.
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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.
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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!!
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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.
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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.
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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?
The rule is definitely 115-years after date of birth.
I can only attempt some guesses; they looked at the record and saw something that pushes the timeline, they've looked at the wrong record or someone at TNA doesn't understand the rules.
It is certainly worth a query.
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Thank you again - everyone. In that case, I will go ahead and try. I guess I have nothing to lose.
Assuming that I will be unsuccessful, does anyone know if there is any other way to at least pinpoint which units my great-uncle served with, and where? The only two clues that we have about his entire service are, firstly, a single photograph in which he is wearing the uniform of the Royal Scots Fusiliers. Also, there is an entry in the British Army Casualty Lists that we think is him - that gives us potential service and regiment numbers and an injury (11th RSF and wounded in NW Europe 22/10/44), but I need some document that includes his address or a named relative to confirm that I have the right person. If I am sure of that, then it might be possible to work out what he *might* have done via the war diaries. Without the service record, I suspect that's about as much as I'm going to be able to do.
Apologies to all the experts if I'm naiive in my hopes.
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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.
I'm not sure how familiar you are with the legal concept of confidence and in no way do I wish to sound patronising, but I do think it is worth exploring, if only because someone at TNA has decided that the phrase breach of confidence sounds appropriate.
The three traditional requirements of the cause of action for breach of confidence were identified by Mr Justice Megarry in Coco v A N Clark (Engineers) Ltd (1968) in the following terms:
"In my judgment, three elements are normally required if, apart from contract, a case of breach of confidence is to succeed. First, the information itself, in the words of Lord Greene, Master of the Rolls in the Saltman case, must "have the necessary quality of confidence about it." Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it".
Let's just consider what is likely to be found in a (deceased) serviceman's records: his date and place of birth; probably his next of kin details, his personal number, details of his marriage and any children, his physical measurements, his branch of the service, his ranks and dates he attained them, his trade qualifications, the courses he attended, his postings, his disciplinary record, his pay and allowances, his leave record, awards of medals and decorations, his work performance assessments (AFB 106 and AFB 2047 or 2048 in the case of the Army), his date of discharge or death in service, and any pension details. This list is not exhaustive but covers many of the typical types of information involved. Very few of those pieces of data will have been given by the data subject to the authority concerned, fewer still will have been provided 'in confidence' meaning that the person receiving the information falls into a special category of people bound by confidence. That is not deny that most, if not all, of those items would constitute personal data for the purpose of GDPR and would thus need to be protected to conform with the old 7th Data Protection Principle (https://www.legislation.gov.uk/ukpga/1998/29/schedule/1/part/I/paragraph/7/enacted); however as we know that protection falls away once the person has died.
The remainder of the data (promotion dates, courses, postings etc) are data generated by the authority and in these cases no duty of confidence is owed to the subject, outside of the GDPR rules. In other words since the MOD owns the item of data, it can determine whether there is any quality of confidence which attaches to it. If anything, the duty is often reversed and the serviceman owes a duty of confidence (under section 2 (https://www.legislation.gov.uk/ukpga/Geo5/1-2/28/section/2/enacted) of the Official Secrets Act 1911*) to his employer not to divulge anything he learns in the course of his service. This is a largely an academic point and wouldn't in fact have covered such things as promotions or trade qualifications, but it might include some postings and specific employments, especially in wartime.
Since the average genealogist will probably already know the serviceman's date and place of birth (or can at least get it from elsewhere) along with details of the next of kin, marriages and children, that leaves almost nothing in a serviceman's record for which it can reasonably be said that the government department owes a duty of confidence to the individual serviceman.
And in any case, even if a plausible case for breach of confidence could be found, the only person who could pursue a civil claim would be the person who suffered the detriment; however since by definition he is dead, that is a nonexistent issue.
* Section OSA 1911 was repealed by the Official Secrets Act 1989.
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Andy - as well as the items you've mentioned, service records very often include medical details such as injuries or illnesses. I think I read a comment about this question recently which pointed out that it was specifically these medical issues which were preventing the release of information until birth +115 years.
There might have been a hint that if the records contained no medical information they could be released earlier, or that all records would be available but subject to medical redactions until birth +115. I've no idea whether this is actually the case - it would obviously be much easier for them to impose a blanket policy for all records.
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Sorry, arthurk, I should have made it clear I was carrying on from my previous posting in which I had already put medical information to one side because I think we all recognise that whether in the military or civilian context, medical information is very rarely going to be made available. Yes, you are right that in an earlier posting degenerate quoted a statement from TNA in which it was said that "they [the personal records] 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."
Someone else then said why can't this information be redacted as it usually is when the records are supplied direct from the MOD. I agree with that point. I suspect that TNA possibly don't have enough staff to be able to cope with redactions and are just applying this blanket 115 year rule to avoid the issue. This is a disappointing outcome. I intend to raise the issue with TNA's User Advisory Group Committee if only so we get some official confirmation of the way ahead.
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I'm not sure how familiar you are with the legal concept of confidence and in no way do I wish to sound patronising, but I do think it is worth exploring,
Explore all you like but how about addressing the point I made earlier? The potential duty of confidence owed by the MOD is to a third-party and the risk is that the relevant confidential information could have ended up on a service record, particularly in relation to health data. It doesn't take a great deal of imagination to see how this might happen in theory and case law shows that it can in practice.
If you are confident of your zero-risk legal analysis you should challenge the MOD & TNA agreement.
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I suspect that TNA possibly don't have enough staff to be able to cope with redactions and are just applying this blanket 115 year rule to avoid the issue.
Exactly, which is why I made the very same point earlier. Blanket rules are a result of resource constraints and the time limit applied is a result of the risk analysis (which would have been agreed by the MOD and TNA with full legal advice from both sides).
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Obviously not alone re other WW 2 records and the holder was helpful initially.
But eventually tripped over an EU rule some years ago, due to the possibility of one or two mentioned in a further release might still be alive.
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Hello again everyone. Just a quick update for anyone who is interested that I have now written again to the TNA, not exactly to complain but to express my point of view that surely a redacted version of the record I seek must be achievable. I can only try. I have nothing to lose in doing so. I will let you know what response I get.
Assuming that I will again be unsuccessful, does anyone know if there is any other way to at least pinpoint which units my great-uncle served with, and where? The only two clues that I have about his entire service are, firstly, a single photograph in which he is wearing the uniform of the Royal Scots Fusiliers. Also, there is an entry in the British Army Casualty Lists that I think is him - that gives us potential service and regiment numbers and an injury (11th RSF and wounded in NW Europe 22/10/44), but I need some document that includes his address or a named relative to confirm that I have the right person. If I am sure of that, then it might be possible to work out what he did via the war diaries. Without the service record, I suspect that's about as much as I'm going to be able to do. Apologies again to all the experts if I'm naiive in my hopes.
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Did you personally send a copy of his death certificate to the TNA?
MoD do not pass over any personal document you sent to Glasgow to the TNA, so without proof of death as part of the application to the TNA the default ruling of 115 years is applied.
I also strongly advise using the FOI procedure TNA has set up
https://discovery.nationalarchives.gov.uk/mod-open-foi-request-step1
Unless you do these steps they cannot initiate a FOI review.
I have had confirmation from TNA that a link to an entry in the CWGC database is acceptable proof of death in service.
Ross
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As the subject of TNA's approach to the release of service records has caused quite a bit of discussion - most of it not entirely complimentary - I think that listening to this explanation of the cataloguing process may be helpful in providing some background: https://www.youtube.com/watch?v=wpCgYrp19Bc
One of the cataloguing team at TNA explains the processes they have had to go through in order to get the documents properly referenced and to extract details of what each file contains, so that this skeleton information can be viewed via the TNA search tool Discovery.
The series she talks about are:
WO 420 - REME Other Ranks 56,000 files
WO 421 - Some of the smaller Corps 100,000 files
WO 427 - Females nurses (presumably QARANCs) based in East Africa - just 471 files.
and they only cover the period of the Second World War, although exactly what time period that means is not clear.
No explanation is given for what has happened with the files covering the period between the First and Second World Wars. As the archivist explains these three series represent just the first batch of the huge number of files being transferred from the MOD, and all the others will need to go through the same cataloguing process. TNA says that they discovered quite a lot of errors in the summary sheets which accompanied most of the files (the WO 427 series were completely unindexed).
The presentation doesn't say so, but I think it is clear that none of these files have been digitized. The options for accessing the whole service record for an individual seem to be
a. a personal visit to TNA,
b. paying a researcher to do so, or
c. paying the TNA staff to make a copy of the pages, provided that the data protection rules allow this.
I intend to test the process when I next visit TNA, to see what access is allowed. For instance, whether I have to prove a person is dead before I can see their records or will the fact they were born more than 100 years ago suffice.
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Hi Andy
Very interesting . I look forward to hearing about what happens when you get there.
Nesta
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Regarding an RAF Airman understood by us to be Missing and Killed in Action and on an English Death Certificate, it had already been decided by the MoD that the 75 years Coroners Rule could be applied regarding the release of some photocopy information via a Minister and an MP direct to a family member when this "Casualty file" was in MoD hands.
We have since had the whole file (later released in an AIR 81 tranche) with "Pt A" on the front cover photographed, which has a few snippets of additional information and known by the family.
However, some post WW2 information given my family is not in the AIR 81 "Pt A" release.
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Another Glasgow file under transfer cannot be traced currently.
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The TNA only took a 'sampling' of another file Series. A request to a Successor Agency said the request could exceed £600 FoI Act search limit so they refused to search unindexed files they had been left with, but did manage to provide an image of the Original Dept file reference Index Slip, the reference used to family and basic family information.
Section 12 of FOIA allows a public authority to refuse to deal with a request where it estimates that it would exceed the appropriate limit to: - either comply with the request in its entirety or; - confirm or deny whether the requested information is held.
Added
This is not just a government file problem. Some Archives have multiple files under one accession number.