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Paterson, Moira --- "Records management and the rights of children in care" [2021] PrecedentAULA 56; (2021) 166 Precedent 34

RECORDS MANAGEMENT AND THE RIGHTS OF CHILDREN IN CARE

By Dr Moira Paterson

Concerns about record-keeping for children in care have tended to focus on child protection and the value of records sharing as a means to assist in protecting children from abuse, including sexual abuse. What tends to be overlooked, however, is the value of records as a means of embedding, embodying and facilitating the exercise of children’s rights (including their rights when they become adults). This is especially important given that children and their families have little choice over participation in the out-of-home care system.

This article outlines the inconsistent management, across Australian jurisdictions and institution types, of the records of children in out-of-home care. It highlights the difficulties care leavers experience when attempting to access those records and suggests principles and mechanisms for regulating records creation and access.

BACKGROUND

Most Australians take it for granted that they have access to the information about their childhoods that is necessary for promoting their further development. They also assume that entitlements to redress for harm suffered by them will not be unduly hampered by evidentiary problems. However, various official reports concerning children in care provide insights into the problems faced by care leavers in accessing essential information about their time in care.^[1] In its 2017 report, the Royal Commission into Institutional Responses to Child Sexual Abuse commented that:

‘Inadequate records and recordkeeping have ... exacerbated distress and trauma for many survivors. Obstructive and unresponsive processes for accessing records have created further difficulties for survivors seeking information about their lives while in the care of institutions.’^[2]

At the heart of this issue for many is establishment of identity. Murray comments that, based on the testimony provided to the Forgotten Australians inquiry,^[3] ‘[O]ne of the greatest scars carried into adulthood is the loss of identity for those raised in out-of-home-care”. ^[4] This issue is especially relevant for child migrants and Indigenous Australians. The latter continue to be overrepresented in out-of-home care services^[5] and for them access is important also to assist their reconnection with family, culture and country.

Australia has a complex patchwork of federal, state and territory freedom of information (FOI), privacy and public records laws that regulate record-keeping,^[6] as well as additional record-keeping requirements in laws that are specific to institutions responsible for the care of children.^[7] These laws vary from state to state and there are also differences in their application depending on whether an institution is public or private.

ACCESS TO RECORDS

Freedom of information and information privacy laws

FOI laws exist in all Australian jurisdictions and provide enforceable rights of access to documents in the possession of public authorities. They do not, in general, apply to private sector organisations. FOI access rights are available only to the extent that information has been recorded in documents that are still in existence. In addition, FOI access rights are subject to exemptions including those designed to protect the privacy of third parties, and disclosure may be subject to charges, delays and refusals based on the workload involved in providing access.

There is evidence that FOI laws are inadequate from the perspective of care leavers. For example, the information that care leavers require to shed light on their time in care may be unavailable, either because key information has never been recorded or because the relevant records have been lost or destroyed. Alternatively, the records may be held by private sector bodies that are not subject to any FOI obligations. Further frustrations include the redaction on privacy grounds of information (including photographs) about family members and others who were in care with the care leaver or involved in their care; substantial delays in providing access; and denials of access on the basis of the unreasonable workload involved in processing an application.^[8]

Information privacy laws provide an alternative avenue for access to an applicant’s own personal records,^[9] but they do not exist in South Australia and Western Australia. The Privacy Act 1988 (Cth) differs from state and territory information privacy laws (and from FOI laws) in that it provides rights that apply to some private sector organisations. However, its coverage of the private sector is limited by several important exceptions, including exceptions for small business operators and for contracted service providers to state governments.^[10] Moreover, to the extent that they are separately available, rights of access under information privacy laws are generally subject to similar limitations to those outlined above in respect of FOI requests.

Record-keeping requirements

The public records and archives laws that establish public sector record-keeping requirements vary considerably between jurisdictions and again do not generally apply to private organisations. The laws regulate the destruction of records but do not impose any duties to create records. Their record-keeping requirements are supplemented in some jurisdictions by requirements in the legislation that regulates care providers, but these additional requirements are generally limited. And, to the extent that record-keeping obligations exist, there is minimal evidence of oversight and enforcement.

Even to the extent that enforceable rights of access are available, difficulties in obtaining access may arise due the way the relevant law is administered. For example, there is evidence of some bodies ‘responding to access requests with suspicion and defensiveness’^{[11 ]}and in a manner that is not conducive to achieving the objectives of FOI and privacy laws. Difficulties may also arise if the records sought do not exist (because they were either not created or have since been mislaid or destroyed)^[12] or because of a lack of indexing.^[13] The latter situation is exacerbated by the lack of effective enforcement mechanisms in respect of the record-keeping requirements that underlie FOI and information privacy rights.^[14]

Regulatory reforms already enacted, or those being actively considered to address record-management issues raised in reports concerning children in care, have centred on record-sharing and reporting of abuse^[15] while ignoring the fact that ‘[a] lack of agency in recordkeeping has been shown to deny children, young people and the adults they become their fundamental human rights to identity, memory, privacy and accountability’.^[16]

The regulatory frameworks governing record-keeping that are relevant to access are poorly understood due their complexity. Furthermore, even where the significance of access-related issues for care leavers has been recognised, the main focus has been on practical measures to help navigate the existing frameworks rather than on reforming them.^[17]

THE HUMAN RIGHTS DIMENSION

A small but growing body of literature highlights the human rights dimensions of access to documents,^[18] including those relating or relevant to an applicant.^[19] Australia’s international obligations in respect of children include duties to ensure that children’s best interests are a primary consideration in actions concerning them that are undertaken by public or private social welfare institutions;^[20] to provide them with legal protection against arbitrary or unlawful interference with their privacy and family;^[21] and to preserve their identity, including nationality, name and family relations as recognised by law, without unlawful interference.^[22] In the case of adults, Australia’s obligations likewise include a duty to provide them with legal protection against arbitrary or unlawful interference with their privacy and family.^[23]

Duties to create and maintain records and provide data subjects with access to their records have an important role to play in fulfilling these obligations. With the growing global consensus on minimum standards that should govern the processing of personal data, the UN Human Rights Committee has referred to the right to have access to stored data as one of the minimum rights of persons whose data is being processed.^[24] This recognition has arisen because of the role of the right to privacy in ensuring ‘the development ... of the personality of each individual in his relations with other human beings’.^[25]

Access to one’s own personal information is a fundamental component of the right to respect for private life, especially where it relates to the identity and early life of children or to family reconnection. This was made clear in Gaskin v United Kingdom,^[26] which concerned an application for discovery of a local authority’s records relating to the applicant’s time in care. In that case, the European Court of Human Rights commented that ‘persons in the situation of the applicant have a vital interest ... in receiving the information necessary to know and to understand their childhood and early development’.^[27] A key focus was the link between information about one’s childhood and identity: that is, ‘we need to be able to understand our childhood in order to understand our self, our individual identity’.^[28] This link arises because the concept of childhood ‘is cast as supplying the framework through which life is subsequently structured and interpreted’.^[29]

This approach finds support in a body of social science research on the role of access relating to identity and identity formation. Frings-Hessami explains that, for care leavers who lack ‘the kind of information a family can provide about the sad and happy memories, special occasions and activities and daily life, and ... an understanding of the circumstances which led to [them] being separated from their families’,^[30] access to care records is important in enabling them to form functional identities.^[31] Reasons identified for care leavers requesting access to their care records include the opportunity ‘to piece together their sense of identity and come to terms with their past’^[32] and the hope that these records ‘will be able to replace family as the repository of personal histories’.^[33]

From a due process perspective, access to personal information that is held or accessible by public authorities is important for ensuring that information subjects can inform themselves on the data available for decision-making that affects them, as well as ensuring that the data is correct, up-to-date and is not used without consent for purposes that are inconsistent with its creation. Care leavers’ ability to obtain access to evidence about their time in care may also be essential if they wish to claim redress for past injustices. The Royal Commission’s final report refers to evidence that problems with access:

‘not only hamper [...] the preparation of responses to redress schemes ... but also ... [hamper] the commencement of civil action, because insufficient evidential material is able to be obtained to file and then to sustain an action.’^[34]

For example, litigants who wish to sue for redress in Victoria are required to have ‘information such as the exact date on which they were abused, the precise nature of the abuse, details of any complaints they made about the abuse’ and the precise date they began to suffer injury, loss and damage.^[35]

Furthermore, even where records exist and applicants have the capacity to use FOI and discovery procedures, ‘there are some inherent limitations to their capacity to access relevant documents, namely workload and costs blowouts’.^[36]

Finally, access to their personal records has an additional cultural human rights dimension for Indigenous care leavers, who were frequently removed not only from their families but also from their communities, cultures and heritage. As noted in the Bringing them Home report, ‘Indigenous people require personal, family and community information ... to assist them to recover from a past marked by gross violations of their human and community rights by governments.^[37]

A WAY FORWARD: DEVELOPING A RIGHTS-FOCUSED REGIME

The current piecemeal approach to information-handling in Australia suggests that a logical way forward lies in the development of a national regime specifically for care leavers. A national regime would have the advantage of surmounting the current public/private divide outlined above and would provide an opportunity to create a single set of rights-focused rules specific to children in care.

The first step is to develop rules applicable to both public and private institutions that mandate the creation of specific records and set out in detail the categories of records that must be created. For example, it is important to ensure that the records provide a complete and adequately detailed account of a child’s progression through the care system, including the dates of key events. These records must provide sufficient information for a child to be able to make sense of their time in care and to ensure appropriate accountability on the part of the individuals and institutions responsible for their care.

Rules mandating the creation of records and record categories must be supplemented by additional rules that ensure that records likely to be sought by a child in care or a care leaver are retained for as long as is required; that access is available; that the records are retained securely; and that the filing method used makes them easily searchable and retrievable without the need for multiple requests for access.

Given the significance of access to these core records for their subjects’ rights to respect for private life and human flourishing, it is also important for access to be available free of charge, without onerous procedural requirements, and subject to minimal restrictions only. The matter of third party privacy can present difficult policy issues, but it is important that decision-makers take into account the strong human rights considerations that favour subject access when assessing the competing factors for and against granting access. It is also important that decision-makers take active steps to try to locate and consult with any third parties before making any decision to refuse access and, in cases where access is denied, compromise by providing some alternative supplementary information.

It must be emphasised that it is unacceptable to refuse access to a document simply because its contents reflect badly on an institution or one of its employees, or because gaining access would be a lengthy or cumbersome process. Where requests for access result in extensive workload requirements, this is generally due to poor record-keeping, and it is important that applicants are not disadvantaged due to factors within an institution’s control. Nevertheless, there may be a case for providing additional funding, as appropriate, to ensure that organisations are able to meet their obligations.

A final feature required is the provision of an adequately resourced regulator. The Setting the Record Straight for the Rights of the Child Summit held in May 2017 identified the pressing need for independent advocacy, governance and oversight of record-keeping.^[38] Arguably, what is required is an independent regulator to provide a review and complaints mechanism that is free of charge and minimises delays. It is also important that this regulator is equipped to be the champion of the new regime, conduct periodic audits, and pursue civil remedies where required to deal with issues of wilful non-compliance.

This work has arisen from research for an ARC-funded Discovery Project with Associate Professor Joanne Evans, Associate Professor Melissa Castan and Professor Elizabeth Shepherd, titled ‘Real-time rights-based recordkeeping governance’.

^[1] See for example Senate Community Affairs Reference Committee, Lost Innocents: Righting the Record, Commonwealth of Australia, Canberra (Report, 2001) ch 6; Senate Community Affairs Reference Committee, Forgotten Australians: A report on Australians who experienced out-of-home care as children, Commonwealth of Australia, Canberra (Report, 2004) ch 9 (Forgotten Australians report); Royal Commission into Institutional Responses to Child Sexual Abuse, Recordkeeping and Information-Sharing, Vol. 8 (Report, 2017) [2.12] (Royal Commission final report); Victorian Parliament Family and Community Development Committee, Betrayal of Trust: Inquiry into the handling of child abuse by religious and other non-government organisations, Vol. 1 (Report, 2013) 69.

^[2] Royal Commission final report, above note 1, Vols 8 and 9.

^[3] Forgotten Australians report, above note 1.

^[4] A Murray, ‘The Forgotten Australians: Identity, records and their search for the past’, The New Critic, No. 8, 2008, 1–15 at 6.

^[5] See for example Australian Institute of Family Studies (AIFS), Child protection and Aboriginal and Torres Strait Islander children, CFCA Resource Sheet – January 2020, AIFS, <https://aifs.gov.au/cfca/publications/child-protection-and-aboriginal-and-torres-strait-islander-children>.

^[6] This interrelationship is examined in detail in M Paterson, Freedom of Information and Privacy in Australia: Information Access 2.0, LexisNexis Butterworths, Australia, 2015.

^[7] See for example Children and Young Persons (Care and Protection) Act 1998 (NSW), ss156–7; Children and Community Services Act 2004 (WA), s128.

^[8] See for example S Murray, ‘Compassion and compliance: Releasing records to care-leavers under privacy and freedom of information legislation’, Social Policy and Society, Vol. 13, No. 4, 2014, 493–503; Victoria Auditor-General’s Office, Freedom of Information Report (Report, 2012) 9, 23.

^[9] See for example the Privacy and Data Protection Act 2014 (Vic), sch 1, cl 6; and the Privacy and Personal Information Protection Act 1998 (NSW), s14.

^[10] See the definition of ‘organisation’ in the Privacy Act 1988 (Cth), s6C.

^{[11 ]}Royal Commission final report, above note 1, Vol. 8, 95.

^[12] For example, the Forgotten Australians report, above note 1, 262–7, found there had been considerable destruction of care leaver records in both government and non-government agencies due to inadequate retention policies and failures to properly store and preserve records.

^[13] Victorian Ombudsman, Investigation into the Storage and Management of Ward Records by the Department of Human Services, Melbourne (Report, 2012) 25.

^[14] For example, there is no redress where it has been established that a document genuinely cannot be found.

^[15] See for example the Children Legislation Amendment (Information Sharing) Act 2018 (Vic).

^[16] J Wilson and F Golding, ‘Latent scrutiny: Personal archives as perpetual mementos of the official gaze’, Archival Science, Vol. 16, No. 1, 2016, 93–109.

^[17] See for example the Find & Connect service, <https://www.findandconnect.gov.au/>.

^[18] P Birkinshaw, ‘Freedom of information and openness: Fundamental human rights?’, Administrative Law Review, Vol. 58, No. 1, 2006, 177–218; M McDonagh, ‘The right to information in international human rights law’, Human Rights Review, Vol. 13, No. 1, 2013, 25–55; W Hins and D Voorhoof, ‘Access to state-held information as a fundamental right under the European Convention on Human Rights’, European Constitutional Law Review, Vol. 3, No. 1, 2007, 114–26.

^[19] T Callus, ‘Tempered hope? A qualified right to know one's genetic origin: Odièvre v France’, Modern Law Review, Vol. 67, No. 4, 2004, 658–83; United Nations Human Rights Committee, General Comment 16, Article 17: The right to respect of privacy, family, home and correspondence, and protection of honour and reputation, HRI/GEN/1/Rev.9 (Vol. I) [10].

^[20] United Nations High Commissioner for Human Rights, Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) art 3(1).

^[21] Ibid, art 16.

^[22] Ibid, art 8.

^[23] United Nations High Commissioner for Human Rights, International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 17(1).

^[24] United Nations High Commissioner for Human Rights, The Right to Privacy in the Digital Age, A/HRC/39/29 (Report, 2018) 9.

^[25] P Tiilikka, ‘Access to information as a human right in the case law of the European Court of Human Rights’, Journal of Media Law, Vol. 5, No. 1, 2013, 79–103 at 90.

^[26] Gaskin v United Kingdom, ECHR Application No. 10454/83.

^[27] Ibid, [49]. See also M.G. v United Kingdom [2002] ECHR 632; (2003) 36 EHRR 3, [29], concerning the records requested by the applicant relating to five significant periods he spent in care when he was relatively young.

^[28] S Trotter, ‘The child in European human rights law’, Modern Law Review, Vol. 81, No. 3, 2018, 452–79 at 475.

^[29] Ibid, 453.

^[30] V Frings-Hessami, ‘Care leavers’ records: A case for a repurposed archive continuum model’, Archives and Manuscripts, Vol. 46, No. 2, 2018, 158–73 at 160–1, citing M Kertesz, C Humphreys and C Carnovale, ‘Reformulating current recordkeeping practices in out-of-home care: Recognising the centrality of the archive’, Archives and Manuscripts, Vol. 40, No. 1, 2012, 42–53 at 45.

^[31] Frings-Hessami, above note 30, 160–1.

^[32] M Jones and C O’Neill, ‘Identity, records and archival evidence: Exploring the needs of Forgotten Australians and Former Child Migrants, Archives and Records’, The Journal of the Archives and Records Association, Vol. 35, No. 2, 2014, 110–125 at 112.

^[33] S Swain and N Musgrove, ‘We are the stories we tell about ourselves: Child welfare records and the construction of identity among Australians who, as children, experienced out-of-home “care”’, Archives and Manuscripts, Vol. 40, No. 1, 2012, 4–14 at 6.

^[34] Royal Commission into Institutional Responses to Child Sexual Abuse, Redress and Civil Litigation Report (Report, 2015) 157, citing evidence from the Kimberley Community Legal Services.

^[35] O’Neill, citing D Oakes, ‘Details required on decades-old abuse’, The Age (10 November 2008) <http://www.theage.com.au/national/details-required-on-decadesold-abuse-20081110-5lpz.html> .

^[36] M Paterson and M Castan, ‘New rules and recordkeeping: Supporting redress for survivors of child abuse’, Alternative Law Journal, Vol. 41, No. 1, 2016, 43–47 at 47.

^[37] Australian Human Rights Commission, Bringing them Home, Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families (Report, 1997) 295.

^[38] J Evans, ‘Setting the record straight for the Rights of the Child Summit’, Archives and Manuscripts, Vol. 45, No. 3, 2017, 247–52.