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Has the Law Changed?

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Has the Law Changed?

Postby Martin Jones » Sun Oct 27, 2013 1:15 pm

We recently applied for the Army Records of my wife's Grandfather, but were told we would have to supply a Death Certificate for him before they could be released. As he died as a vagrant we have been unable to track down a Death Certificate, but didn't think we would need one as he was born in 1901 and wold now have been over 100. however the Army Records people say the Government have now changed this 100 year rule to 116 years because people are living longer. Has anyone else heard of this?
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Re: Has the Law Changed?

Postby AdrianB38 » Thu Oct 31, 2013 7:30 pm

Yes, I have heard of it.

My belief is that this is not a matter of law - otherwise the 1911 census would not have been allowed out. It's simply a matter of what each department decides, and the MoD have decided on a longer time period. (In my view, logically.) Bear in mind Harry Patch was 111 when he died, so the MoD had examples of long life in front of them. (Not that Harry Patch's records would have been affected by this rule).
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Re: Has the Law Changed?

Postby junkers » Thu Oct 31, 2013 8:24 pm

I can't believe that this is true as government records (even murder files) are closed for a maximum of 100 years. MOD say (https://www.gov.uk/requests-for-persona ... ce-records) that they will release certain details to people who are not next-of-kin up to 25 years after the death of the individual, but given the individual is over 100 years old then that would not apply. Departments can decide on what to release within the legislation (especially the Freedom of Information Act), but I am sure that the Information Commissioner's Office would not agree unless it has approved by the Ministry of Justice (as successors to the Lord Chancellor) and I am sure they be interested in these cases and they may be able to help/advise. I would suggest that you ask MOD for a copy of the 'Government decision' and this has wider issues for researchers in the run-up to the First World War commemoration next year.
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Re: Has the Law Changed?

Postby junkers » Thu Oct 31, 2013 8:34 pm

I have now found the reference to the 116 years of age in the attached document (http://www.veterans-uk.info/pdfs/servic ... y_pack.pdf) but this seems to me to be unreasonable and I am sure that it would not stand up to inspection. For example Home Guard records (or at least for Durham) are closed for 100 years from the date of birth.
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Re: Has the Law Changed?

Postby AdrianB38 » Thu Oct 31, 2013 9:44 pm

junkers wrote:I have now found the reference to the 116 years of age ... this seems to me to be unreasonable and I am sure that it would not stand up to inspection. For example Home Guard records (or at least for Durham) are closed for 100 years from the date of birth.


Frankly, I think if anyone thought about it, then it's the assumption that anyone born more than 100y ago is dead, that would not stand up to inspection.

The Durham Home Guard limit is 100y for assuming the subject is dead. This is possibly explicable two ways: (1) it's TNA who have those records who are deciding, not the MoD, and the two bodies are at liberty to have different criteria, (2) the impact of the Home Guard data getting out is minimal because the HG data for each person is slim compared to the rest of the Army data.

I don't see any impact on WW1 researchers as the WW1 data has already been released from the MoD.

What I would suggest is controversial about the MoD's stance is this insistence on a further "period of 25 years following the date of death" before it releases the fine detail to non-next-of-kin - it talks somewhere about a duty of care to the dependants. I'd like to see that duty justified - unless it's written down, then surely Freedom of Information must operate - subject to Data Protection for the dependants, of course. Given that the fine detail is things like what battalion someone served in, this seems odd - regiment is OK, battalion is confidential? Huh?
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Re: Has the Law Changed?

Postby junkers » Fri Nov 01, 2013 12:03 am

It is not true that all records from the First World War have been released, my grandfather's service file (born in 1893) is still held by MOD in Glasgow and there are others caught in the 'inter-war' years because they served after 1920. The MOD don't, in my view, have a leg to stand on as all departments (the Security Services do not) work to the same legislation. There are a number of cases where individuals are still alive and their records were closed for 100 years from their date of birth, does that mean we should close the census for 125 years, definitely not!!. The content and amount of records is not covered by the FOI Act or the Data Protection Act, either they are open or not.
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Re: Has the Law Changed?

Postby Guy » Fri Nov 01, 2013 8:57 pm

junkers wrote:I have now found the reference to the 116 years of age in the attached document (http://www.veterans-uk.info/pdfs/servic ... y_pack.pdf) but this seems to me to be unreasonable and I am sure that it would not stand up to inspection. For example Home Guard records (or at least for Durham) are closed for 100 years from the date of birth.


They are trying to use the Data Protection Act 1998 to keep the records closed. "We have a legal obligation regarding confidentiality under the Data Protection Act 1998"

The Data Protection Act 1998 only applies to living people.
The minute the subject dies the Data Protection Act has no effect and the records must be released.
If you have proof of death write to the MoD enclosing a copy of the death certificate and explain that the Data Protection Act no longer applies.
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As we have gained from the past, we owe the future a debt, which we pay by sharing today.
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Re: Has the Law Changed?

Postby AdrianB38 » Sun Nov 03, 2013 11:28 am

If you have proof of death write to the MoD enclosing a copy of the death certificate


Just to be clear about this - the 116 year figure is used only in the absence of a death certificate. So there is no clash between the 116 years and the non-applicability of the DPA.
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