Right to inspection of redacted documents so as to disclose names depends on balancing of rights under Article 8 of the ECHR with openness of litigation.

01/06/2009

A Year 11 pupil brought proceedings against a school following an incident at the school's tennis courts, where he was severely beaten by four other students and three adults. The pupil's family also brought proceedings for post traumatic stress, including the pupil's younger brothers. The seven assailants were all convicted of wounding with intent contrary to s 18 of the Offences Against the Persons Act 1861.

The claimants alleged that the assault was caused or contributed by the negligence of the school for its failure to maintain proper disciplinary standards or otherwise take proper care for the security of pupils in the school. The claim also alleged that the attack had a racial foundation: the pupil was white and all the attackers were Asian. The pupil and his family alleged that the school had allowed racial tensions to develop and that that had led to the attack on him.

Standard disclosure had taken place and witness statements had been exchanged. The claimants applied for specific disclosure. As part of its disclosure, the school gave inspection of a number of items where the names of pupils had been redacted; the claimants sought an order that the school provide, amongst other things, unredacted copies of documents, specifially:

(i) morning staff minutes (which covered 18 months of meetings on a daily basis)&eoln;
(ii) the school's exclusion records 2003/2007 (which began in September 2003 and continued through to July 2006);
(iii) a 'log' of racist incidents/lean/aggression investigations (mainly in respect of incidents recorded after 11 January 2007);
(iv) records of children treated at the school's medical facilities;
(v) a reports manager database, operating manual and policies;
(vi) documents relating to attempts to assess the extent of racial tension within the school from March 2006.

The court ruled:

(1) The request in relation to the morning staff minutes had been far too broad and unfocused. Many of the entries where there had been redactions had no conceivable bearing on the issues between the parties. The request in respect of the exclusion records had also been too general as there were many hundreds of entries. The reasons given for exclusion covered a wide range - from smoking in the toilets to misbehaviour with fire extinguishers; from rudeness to members of staff to bullying. Very few on their face had referred to racist behaviour. If the claimants sought to make a more focussed application, that would be for another day.

Information in respect of the 'log' could not help the claimants and was not necessary for a fair disposal of the proceedings. The methodology of preparing that document had also been different. The alleged perpetrators' names had not been redacted. They had been anonymised as, for instance, 'Pupil F, Pupil G'. What had been redacted were the names of the alleged victims of racism, bullying or aggression. The claimants sought to know those names so that they could investigate whether any of those pupils might be able to give useful evidence for them. In other contexts it could be an acceptable practice and a legitimate litigation strategy to make use of disclosed documents to search out witnesses. But this application was different. The matter which the alleged victims had discussed with their teachers in many cases had caused them upset. It would plainly be an interference with the private lives of the pupils concerned to order disclosure of their identities. That interference was not necessary for the claimants to have a fair trial. It had also not been necessary for the records of children treated at the school's medical facilities to be disclosed. There had been an added sensitivity about medical records. Correspondingly, the need for disclosure would have to be convincingly established. The claimants had come nowhere near satisfying that test. Furthermore, the medical records included entries which had nothing whatsoever to do with assaults or indiscipline in the school. Even if it otherwise had merit, the request in relation to that item had plainly been too broad. In relation to the reports manager database, disclosure of the pupil names in that database would be an infringement of their rights under art 8 of the Convention and would not be justified under art 8(2). The claimants already had disclosure of disciplinary action in the form of exclusions in redacted form. They also had disclosure (again in redacted form) of the morning staff minutes. To require the school to provide a redacted version of their database would also be a very substantial task which was disproportionate to any possible benefit for the claimants or the issues in the case. In addition, the volume of material on the database, which had no possible bearing on the issues in the case, made it disproportionate.

Accordingly, the claimants' application under heads (i)-(v) was dismissed.

(2) In relation to documents relating to attempts to assess the extent of racial tension within the school from March 2006, the names had specifically been supplied by the heads of year in connection with questions about racial tension. That request had been more focussed and the numbers involved had been small. There could be no objection to the request on grounds of disproportionality. However, disclosure of those children's identities would be an interference with their private lives. There would be such interference even though the claimants and their lawyers would be subject to restrictions. If any of those individuals was a defendant in the criminal proceedings, their identity would be disclosed in accordance with the school's undertaking in those proceedings. Otherwise, it was not necessary for the claimants to know their identities in order to have a fair trial. However, in order for the claimants to pursue their investigations in that regard it was sufficient for each person whose name had been redacted in that group of documents to be given an identifier (initials or numbers) which was unique to that person and would allow the claimants to know the person's race or ethnicity (if and so far as that was known to the school).

Accordingly, there would be disclosure by way of an identifier.

[i](Webster & Ors v. Governors of the Ridgeway Foundation School [2009] EWHC 1140 (QB))

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