Justice social work - reports and court-based services: practice guidance

3. Data Protection

3.1 Data / information sharing principles

The following is offered as general guidance for those preparing court reports, but it should be read in conjunction with agreed procedures within the local authority.

There are overarching concepts and legislation which regulate the sharing of information and the rules around secondary processing of information as outlined in the Data Protection Act 2018 which implemented General Data Protection Regulation. Each local authority should be working with their data protection team to set policies and take decisions on processing personal data. The local authorities and Scottish Courts and Tribunal Service must have a Privacy Notice which would be supplied to those using their services and this, along with their Data Protection Impact Assessment will give good insight and understanding of the lawful basis used.

You may find it useful to consider the information contained in the following when thinking about information sharing: A guide to lawful basis | ICO specifically Public task | ICO which is most relevant for provision of information to the court within JSWRs

The purpose of any information sharing activity should be considered in advance. In this context, the legislation that underpins JSWRs is section 27(1)(a) of the 1968 Act which requires the local authority to make:

“…available to any court such social background reports and other reports relating to persons appearing before the court which the court may require for the disposal of a case”.

This establishes the necessity of any information-sharing as the local authority must comply with this legal obligation. As this is a ‘public duty’, the consent of the data subject (the person on whom the report is being compiled) is not required before data is shared. However, in some particular circumstances, the issue of consent can be more complex – see section five of this guidance on information gathering for further information on this.

In order for the information sharing to be lawful, the information shared must demonstrate proportionality in terms of its content. It is not possible to fully define what information should be provided to the court in a JSWR as the circumstances of each case is unique. However, a broad measure would be that if the information is directly related to the person’s circumstances (including factors of risk and need), and that information may impact on the outcome of the case, then it would be lawful to share this with the court.

In most cases of information sharing, the ‘how’ of doing so is, usually, a standardised process facilitated by the use of ‘Single Points of Contact’ or electronically secure email addresses. In this particular case, completed and signed JSWRs are returned to the requesting court through established and secure electronic means.

If the person is sentenced to a period in custody, then Scottish Courts and Tribunal Service(SCTS) will forward the JSWR to the appropriate prison. The information in the report can be made available for both risk assessment purposes and to raise awareness of any on-going issues. It has been established that both the local authority and SCTS are joint data controllers of the information within the court report and as such, if there is any issue with SCTS forwarding the court report to the prison then the local authority can do so instead.