CASE OF GASKIN v. THE UNITED KINGDOM
(Application no. 10454/83)
07 July 1989
In the Gaskin case*,
The European Court of Human Rights, taking its decision in plenary session in pursuance of Rule 50 of the Rules of Court and composed of the following judges:
††††††††† Mr ††† R. Ryssdal, President,
††††††††† Mr ††† J. Cremona,
††††††††† Mr ††† Thůr VilhjŠlmsson,
††††††††† Mrs † D. Bindschedler-Robert,
††††††††† Mr ††† F. GŲlcŁklŁ,
††††††††† Mr ††† F. Matscher,
††††††††† Mr ††† L.-E. Pettiti,
††††††††† Mr ††† B. Walsh,
††††††††† Sir ††† Vincent Evans,
††††††††† Mr ††† R. Macdonald,
††††††††† Mr ††† C. Russo,
††††††††† Mr ††† R. Bernhardt,
††††††††† Mr ††† A. Spielmann,
††††††††† Mr ††† J. De Meyer,
††††††††† Mr ††† J.A. Carrillo Salcedo,
††††††††† Mr ††† N. Valticos,
††††††††† Mr ††† S. K. Martens,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy Registrar,
Having deliberated in private on 30 March and 23 June 1989,
Delivers the following judgment, which was adopted on the last-mentioned date:
There appeared before the Court:
- for the Government
†††††† Mr I.D. Hendry, Legal Adviser,
††††††††††††††††††††††††††† Foreign and Commonwealth Office, †††††††††††††††††††††††† Agent,
†††††† Mr N. Bratza, Q.C., ††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Counsel,
†††††† Mr E.R. Moutrie, Solicitor,
††††††††††††††††††††††††††† Department of Health and Social Security,
†††††† Mrs A. Whittle, Department of Health and Social Security,
†††††† Mr R. Langham, Department of Health and Social Security,
†††††† Miss T. Fuller, City Solicitorís Department,
††††††††††††††††††††††††††† Liverpool City Council,
†††††† Mr A. James, Liverpool City Council, ††††††††††††††††††††††††††††††††††††††† Advisers;
- for the Commission
†††††† Mrs G.H. Thune, ††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Delegate;
- for the applicant
†††††† Mr R. Makin, Solicitor
††††††††††††††††††††††††††† of the Supreme Court, ††††††††††††††††††††††††††††††††††††††††††† Counsel.
AS TO THE FACTS
During the major part of the period while he was in care the applicant was boarded out with various foster parents, subject to the provisions of the Boarding-Out of Children Regulations 1955 ("the 1955 Regulations"). Under the terms of those regulations the local authority was under a duty to keep certain confidential records concerning the applicant and his care (see paragraph 13 below).
I. THE APPLICANTíS CASE RECORDS AND THE APPLICATION FOR DISCOVERY THEREOF
"10.-(1) A local authority shall compile a case record in respect of -
(a) every child boarded out by them;
(c) ... and the said records shall be kept up-to-date.
(3) Every case record compiled under this Regulation or a microfilm recording thereof shall be preserved for at least three years after the child to whom it relates has attained the age of eighteen years or has died before attaining that age, and such microfilm recording or, where there is none, such case record shall be open to inspection at all reasonable times by any person duly authorised in that behalf by the Secretary of State."
"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."
II. RESOLUTIONS OF LIVERPOOL CITY COUNCIL RELATING TO ACCESS TO PERSONAL FILES
Furthermore, in June 1986, one contributor refused his consent to disclosure on the ground that it would be detrimental to the applicantís interests.
"I refer to your letter dated 11 June 1986.
I would wish to be as helpful as possible to you, but at the end of the day suspect that we may have genuine differences of opinion. At least I take that to be the implication of the questions you asked.
I do not think therefore, that we can take this correspondence further in a profitable way because, as I have said, it is, in the last analysis, for the provider of information, retrospectively collected, to release or refuse to release, in their absolute discretion, the information supplied from the Ďconfidentialí embargo originally accorded to it. The reasons for releasing or not releasing are irrelevant whether they are good, bad or indifferent.
I regret I do not feel able to help you further."
III. †SUBSEQUENT LEGISLATIVE DEVELOPMENTS
According to the Government, the effect of Regulation 9 (3) is that, in future, case records will be compiled on the basis that the information contained therein is liable to be disclosed, except in so far as disclosure would be likely to reveal the identity of the informant or another third party. However, by virtue of section 2 (4) of the Access to Personal Files Act 1987, the 1989 Regulations apply only to information recorded after the Regulations came into force, that is, after 1 April 1989. As in the case of Circular LAC (83) 14, which governed the adoption of the resolution mentioned in paragraph 25 above and the subsequent partial release of documents to Mr Gaskin, the Access to Personal Files (Social Services) Regulations 1989 do not have retrospective effect.
PROCEEDINGS BEFORE THE COMMISSION
In its report of 13 November 1987 (Article 31) (art. 31), the Commission concluded, by six votes to six, with a casting vote by the acting President, that there had been a violation of Article 8 (art. 8) of the Convention by the procedures and decisions which resulted in the refusal to allow the applicant access to the file. It further concluded, by eleven votes to none with one abstention, that there had been no violation of Article 10 (art. 10) of the Convention.
The full text of the Commissionís opinion and of the partly dissenting opinions contained in the report is reproduced as an annex to the present judgment.
FINAL SUBMISSIONS MADE TO THE COURT BY THE GOVERNMENT
"(i) that the facts disclose no breach of the applicantís rights guaranteed by Article 8 (art. 8) of the Convention;
(ii) that the facts disclose no breach of the applicantís rights guaranteed by Article 10 (art. 10) of the Convention."
AS TO THE LAW
I. †SCOPE OF THE CASE BEFORE THE COURT
II. ALLEGED BREACH OF ARTICLE 8 (art. 8)
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. †There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
In the proceedings before the Court the Government did not revert specifically to this contention but rather concentrated on the questions whether there was any relevant interference with the applicantís right to respect for private life or alternatively whether there was any failure to comply with such positive obligations as are inherent in Article 8 (art. 8) to secure through its legal and administrative system respect for private life.
This finding is reached without expressing any opinion on whether general rights of access to personal data and information may be derived from Article 8 para. 1 (art. 8-1) of the Convention. The Court is not called upon to decide in abstracto on questions of general principle in this field but rather has to deal with the concrete case of Mr Gaskinís application.
B. Approach to Article 8 (art. 8) in the present case
In its report, reference was made to the Courtís Leander judgment of 26 March 1987, in which it was held that:
"Both the storing and the release of ... information, which were coupled with a refusal to allow Mr Leander an opportunity to refute it, amounted to an interference with his right to respect for private life as guaranteed by Article 8 para. 1 (art. 8-1)" (Series A no. 116, p. 22, para. 48).
The Commission noted that Mr Gaskin sought access to a file of a different nature from that in the Leander case. Nevertheless, since the information compiled and maintained by the local authority related to the applicantís basic identity, and indeed provided the only coherent record of his early childhood and formative years, it found the refusal to allow him access to the file to be an interference with his right to respect for his private life falling to be justified under paragraph 2 of Article 8 (art. 8-2).
In their view, the applicant was complaining not about direct interference by a public authority with the rights guaranteed by Article 8 (art. 8), but of a failure by the State to secure through its legal or administrative system the right to respect for private and family life. In this connection, the Government conceded that neither the legal nor the administrative system in the United Kingdom provided an absolute and unfettered right of access to case records to a person in the applicantís situation. However, the existence of such positive obligations entailed a wide margin of appreciation for the State. The question in each case was whether, regard being had to that margin of appreciation, a fair balance was struck between the competing interests, namely the public interest in this case in the efficient functioning of the child-care system, on the one hand, and the applicantís interest in having access to a coherent record of his personal history, on the other.
However, it is common ground that Mr Gaskin neither challenges the fact that information was compiled and stored about him nor alleges that any use was made of it to his detriment. In fact, the information compiled about Mr Gaskin served wholly different purposes from those which were relevant in the Leander case. He challenges rather the failure to grant him unimpeded access to that information. Indeed, by refusing him complete access to his case records, the United Kingdom cannot be said to have "interfered" with Mr Gaskinís private or family life. As regards such refusal, "the substance of [the applicantís] complaint is not that the State has acted but that it has failed to act" (see the Airey judgment of 9 October 1979, Series A no. 32, p. 17, para. 32).
The Court will therefore examine whether the United Kingdom, in handling the applicantís requests for access to his case records, was in breach of a positive obligation flowing from Article 8 (art. 8) of the Convention.
C. Compliance with Article 8 (art. 8)
The Government argued that both circular and resolution acknowledged the importance of access to the child-care records for those who are the subject of those records, and at the same time the importance of respecting the confidentiality of those who contributed to the records. That was not merely to protect the private interests of individual contributors but involved a much wider public interest. The proper operation of the child-care service depended on the ability of those responsible for the service to obtain information not only from professional persons and bodies, such as doctors, psychiatrists, teachers and the like, but also from private individuals - foster-parents, friends, neighbours and so on. The Government argued that, if the confidentiality of these contributors were not respected, their co-operation would be lost and the flow of information seriously reduced. This would have a serious effect on the operation of the child-care service.
In this connection, the Government attached particular importance to paragraph 5 of the Circular, which contained an express recognition of the rights of persons who had provided information on the clear understanding that it would not be revealed, and to paragraph 7, pursuant to which "information should not be disclosed to the client if derived in confidence from a third party without the consent of the third party". They also drew attention to paragraph 9 which stated that records existing prior to the introduction of the new policy had in general been prepared on the basis that their content would never be disclosed to clients and therefore should not be disclosed without the contributorís permission.
In this respect, the balance struck by both the circular and the resolution between the interests of the individual seeking access to the records on the one hand and, on the other hand, the interests of those who have supplied information in confidence and the wider public interest in the maintenance of full and candid records, was said by the Government to be proper, rational, reasonable and consistent with their obligations under Article 8 (art. 8). There was thus no failure on the part of the United Kingdom to secure the applicantís right to respect for private life guaranteed by that provision.
By way of example, Mr Gaskin explained in some detail that he wished to establish his medical condition, which was not possible without sight of all the records and expert advice.
The Government explained to the Court, in reply to its question on this point, that all information contributed to a case record kept under the 1955 Regulations (see paragraph 13 above) was treated as supplied on the understanding that it was to be kept confidential, unless the contrary was clear either from the nature of the information supplied or from the fact that the contributor had waived confidentiality. The basis for this principle of confidentiality was to be found in Regulation 10 which provides that the case record shall be open to inspection by any person duly authorised in that behalf by the Secretary of State. As the Court of Appeal held in Re D (infants)  1 All England Law Reports 1089, in which that provision was applied in the context of wardship proceedings, "that shows that the case record is regarded as private and confidential" (see paragraph 17 above).
The Commission observed that the applicant had not had the benefit of any "independent procedure to enable his request to be tested in respect of each of the various entries in the file where consent is not forthcoming". It concluded that the "absence of any procedure to balance the applicantís interest in access to the file against the claim to confidentiality by certain contributors, and the consequential automatic preference given to the contributorsí interests over those of the applicant," was disproportionate to the aim pursued and could not be said to be necessary in a democratic society.
For his part, the applicant pointed out that, under the procedure of obtaining the consent of contributors adopted by the Circular, there were always likely to be certain contributors whom it is impracticable to ask for consent, as it may not be possible to identify or trace them. In that case, there would always be an element of the documents which may never be released to someone in his situation. The example was also given of jointly prepared reports where one of the authors consents to disclosure but the other does not.
Accordingly, the procedures followed failed to secure respect for Mr Gaskinís private and family life as required by Article 8 (art. 8) of the Convention. There has therefore been a breach of that provision.
III. †ALLEGED VIOLATION OF ARTICLE 10 (art. 10)
"1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. †The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."
IV.† †APPLICATION OF ARTICLE 50 (art. 50)
"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party."
A. Pecuniary damage
The Government contended that no causal link had been shown to exist between the losses said to have been suffered and the alleged violations of the Convention.
B. Non-pecuniary damage
The Government contended that it could not be assumed that the applicant had sustained a real loss of opportunities such as to justify an award of just satisfaction in respect of non-pecuniary damage. Even if some loss of opportunities had been suffered, the applicant had not established any causal link between the damage claimed and any violation of the Convention found.
Making a determination on an equitable basis, the Court awards to Mr Gaskin under this head the amount of £5,000.
C. Costs and expenses
The Court will deal with this claim in accordance with the criteria it has established (see, among other authorities, the Belilos judgment of 29 April 1988, Series A no. 132, p. 33, para. 79).
1. Costs incurred at domestic level
The Court agrees that only costs incurred subsequently to the termination of the domestic proceedings may be considered (see paragraph 33 above). It is therefore appropriate to include this aspect of the claim in the examination conducted in paragraphs 61 to 62 below.
2. Costs incurred in the European proceedings
The Government did not dispute that the applicant had incurred liability to pay sums additional to those covered by the legal aid which he had received from the Council of Europe. If the Court were to make an award, it should not be greater than that awarded in comparable cases.
FOR THESE REASONS, THE COURT
1. Holds by eleven votes to six that there has been a violation of Article 8 (art. 8);
2. Holds unanimously that there has been no violation of Article 10 (art. 10);
3. Holds by nine votes to eight that the United Kingdom is to pay to the applicant, for non-pecuniary damage, £5,000 (five thousand pounds) and, for legal fees and expenses, £11,000 (eleven thousand pounds) less 8,295 FF (eight thousand two hundred and ninety-five French francs) to be converted into pounds sterling at the rate applicable on the date of this judgment, plus value added tax on the balance;
4. Rejects the remainder of the claims for just satisfaction.
Done in English and French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 7 July 1989.
For the Registrar
In accordance with Article 51 para. 2 (art. 51-2) of the Convention and Rule 52 para. 2 of the Rules of Court, the following separate opinions are annexed to this judgment:
(a) Joint dissenting opinion of Mr Ryssdal, Mr Cremona, Mr GŲlcŁklŁ, Mr Matscher and Sir Vincent Evans;
(b) Dissenting opinion of Mr Walsh.
JOINT DISSENTING OPINION OF JUDGES RYSSDAL, CREMONA, G÷LC‹KL‹, MATSCHER AND SIR VINCENT EVANS
1.†† We accept the finding of the majority of the Court that the records contained in the local authorityís file relate to Mr Gaskinís private and family life in such a way that the question of his access thereto raises an issue under Article 8 (art. 8) of the Convention. We do not, however, agree that a violation of Article 8 (art. 8) has been established in this case.
2.†† The confidential nature of the case records compiled under Regulation 10 of the Boarding-Out of Children Regulations 1955 at the time when Mr Gaskin was in care has been clearly affirmed by the English courts, particularly in the case of Re D. (Infants)  1 WLR 599, which was followed by the decisions of the High Court and the Court of Appeal in refusing Mr Gaskinís application for discovery of documents in 1980 (see paragraphs 14 to 18 of the Courtís judgment). Boreham J in the High Court, whose finding on this point was accepted by the Court of Appeal, said that he was "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".
3.† As both the Commission and the Court have recognised, the confidentiality of the contents of the file had a legitimate aim - or aims. It not only protected the rights of those who had provided information on a confidential basis, but by contributing to the efficient operation of the child-care system it also served to protect the rights of children in need of care.
4.† Admittedly a more open policy as regards access to personal files has been followed in other Contracting States and this is now the approach adopted in Great Britain in the Access to Personal Files Act 1987 and Regulations made under it as to information recorded in the future. In our opinion, however, it would be wrong to alter retrospectively the basis on which existing case-records have been compiled. The question of access to them, including access to Mr Gaskinís file, must be considered with proper regard to the conditions of confidentiality under which information was contributed to them.
5.† Mr Gaskin claims that his right to respect for his private and family life under Article 8 (art. 8) entitles him to access to the whole of his case-file. In determining whether the respondent Government are under a positive obligation to grant him access, the Court, in accordance with its established case-law, has had regard to the "fair balance that has to be struck between the general interest of the community and the interests of the individual" (see paragraph 42 of the judgment). The Court has also pointed out in its judgment in the case of Abdulaziz, Cabales and Balkandali (Series A no. 94, p. 33, para. 67) that the notion of "respect" is not clear-cut especially as far as positive obligations inherent in Article 8 (art. 8) are concerned and accordingly that this is an area in which the Contracting Parties enjoy a wide margin of appreciation in determining the steps to be taken to ensure compliance with the Convention with due regard to the needs and resources of the community and of individuals.
6.† It is implicit in the Courtís judgment in the present case that it does not accept that the applicant should have access to his entire file irrespective of the confidentiality attaching to its contents, but that access can only be given on a selective basis.
7.†† The Government maintain that by writing a letter to each of the contributors to the file seeking his permission to disclose the information that he had contributed and then making available to the applicant documents supplied by persons who gave their consent, the authorities in the United Kingdom have gone as far as they properly could to meet the applicantís request for access. It is the Governmentís view that it would be entirely improper and a breach of good faith to disclose information supplied in confidence without the consent of the supplier.
8.† The Court has taken the view that the final decision whether access should be granted in cases where a contributor fails to answer or withholds consent should be taken by an independent authority (see paragraph 49 of the judgment). Inasmuch as such a system envisages the disclosure of information received in confidence without the contributorís consent, we consider that it is open to serious objection as not fairly and adequately respecting and protecting his position.
9.† In our opinion the procedure that has been followed by the United Kingdom authorities for determining what parts of Mr Gaskinís file could be made available to him should be accepted as representing a fair balance of interests in the circumstances.
10.† †Finally, we do not agree that the payment of non-pecuniary damage is justified in this case. The stress and anxiety which the applicant has no doubt suffered have been occasioned by the refusal to grant him access to his case-file and not to the lack of any review procedure, which may or may not result in the release of further documents to him. This therefore is, in our opinion, a case in which the finding of a breach of Article 8 (art. 8) constitutes adequate just satisfaction for the purpose of Article 50 (art. 50).
DISSENTING OPINION OF JUDGE WALSH
1.† In my opinion Article 8 (art. 8) of the Convention is not applicable in the present case. The information sought by the applicant was for the purpose of furthering his legal action for damages against the Liverpool City Council. It was not sought in defence of or to further his right to respect for his private and family life. Furthermore the present application is, in effect, an appeal against the orders of the English courts which decided on the merits of the case not to permit the revelation of information imparted and received in confidence.
2.† In my opinion Article 10 (art. 10) of the Convention is applicable. Prima facie the applicantís right to receive the information sought from the public authority falls within the guarantee contained in Article 10 para. 1 (art. 10-1) of the Convention. The information sought was relevant to his legal proceedings. The willingness of the Liverpool City Council to furnish the information was restrained by the English courts on the grounds that to do so would be to breach the undisputed confidentiality which covered the documents in question. In my view that fell within the qualification permitted by Article 10 para. 2 (art. 10-2) of the Convention. In fact nineteen of the forty-six informants agreed to waive the confidentiality and the relevant documents were furnished to the applicant. The applicantís freedom to pursue his legal proceedings is not impaired and he is free to exercise his rights guaranteed by Article 6 para. 1 (art. 6-1) of the Convention. He can furnish first-hand testimony of the alleged personal injuries suffered by him and examine and cross-examine witnesses in accordance with the rules of English procedural law. The fact that the English courts in their discretion might have given the applicant access to the documents sought does not affect the construction of Article 10 para. 2 (art. 10-2) of the Convention. The matter was decided in accordance with English law on grounds which, in my view, can in the circumstances of the case be justified as being necessary in a democratic society for preventing the disclosure of information received in confidence relating to a very sensitive area of social welfare.
3.†† In my opinion it has not been shown that there has been any breach of the Convention.
* Note by the Registrar: The case is numbered 2/1988/146/200.† The second figure indicates the year in which the case was referred to the Court and the first figure its place on the list of cases referred in that year; the last two figures indicate, respectively, the case's order on the list of cases and of originating applications (to the Commission) referred to the Court since its creation.