Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Appeal No.  GIA/5678/2014 

ADMINISTRATIVE APPEALS CHAMBER

Before: Upper Tribunal Judge K Markus QC

DECISION

The appeal is dismissed.

REASONS FOR DECISION

1.    The Appellant’s mother had died at a care home on 25 January 2013. The Appellant had been unaware that her mother had been placed in the home or that she was dying.  On 8 October 2013 the Appellant requested that Norfolk County Council (NCC) provide her with records relating to care provided to her mother at the care home.  NCC refused the request under section 41 Freedom of Information Act 2000 (FOIA).  NCC considered whether it could provide the information outside the FOIA regime, but decided that it could not because of the confidential nature of the information. 

2.    The Appellant complained to the Information Commissioner.  The Commissioner decided that the requested information was exempt from disclosure under section 41 FOIA.  The Appellant appealed to the First-tier Tribunal (FTT) which dismissed her appeal. The Appellant appealed to the Upper Tribunal.

3.    I gave permission to appeal and directed an oral hearing.  The hearing took place before me in London on 7 October 2015. The Appellant chose not to attend. She sent a number of written submissions.  The Information Commissioner provided a skeleton argument and was represented at the hearing by Mr R Paines (Counsel).   I am very grateful to Mr Paines for the thoroughness with which he has addressed the issues in this appeal. I considered rule 38 of the Tribunal Procedure (Upper Tribunal) Rules 2008.  The Appellant was notified of the hearing and had chosen not to attend.  I am able to determine the appeal on the basis of the evidence, the Appellant’s written submissions and the skeleton argument and oral submissions of Mr Paines.  Therefore I decided to proceed with the hearing in the Appellant’s absence.

4.    The Appellant had suggested that this appeal should be considered by a High Court Judge. There is no proper basis for doing so. 

The First-tier Tribunal’s decision

5.    Section 41 provides:

“(1) Information is exempt information if—

(a) it was obtained by the public authority from any other person (including another public authority), and

(b) the disclosure of the information to the public (otherwise than under this Act) by the public authority holding it would constitute a breach of confidence actionable by that or any other person.

(2) The duty to confirm or deny does not arise if, or to the extent that, the confirmation or denial that would have to be given to comply with section 1(1)(a) would (apart from this Act) constitute an actionable breach of confidence.”

6.    The FTT decided that paragraph (1)(a) applied.  As to (b) the information was confidential to the Appellant’s mother and she would have been able to bring an action to stop its publication during her lifetime. Applying Webber v Information Commissioner GIA/4090/2012 the position was no different because she was dead, even if there was no personal representative.  There was no overriding public interest which would constitute a defence to such an action. Therefore the information was exempt under section 41.

The appeal to the Upper Tribunal

7.    I gave the Appellant permission to appeal because it was arguable that, although the Appellant had not expressly mentioned Article 8, the reasons advanced by her for requesting the information engaged Article 8 and the FTT had not addressed that.  The Appellant said that as next of kin of her mother she had what the FTT Judge described as “her legitimate and understandable desire to see the records”. She had not been given the chance to say goodbye to her mother and she needed to know what had happened in the last weeks of her mother’s life.  She believed that her mother would not have objected to disclosure of the information because her mother believed in sharing information with relatives in order to have knowledge of genetic health issues, and the Appellant wanted to know whether there was any genetic health risk to herself, in particular in respect of dementia. I also considered that it was arguable that the FTT should have addressed the possibility of disclosing some, even if not all, of the information. 

8.    The Commissioner’s submissions in response are comprehensive and clear. I refer to them within my analysis which follows.

Analysis

Section 41(1)(b) FOIA

9.    Section 41 FOIA requires the FTT to consider hypothetically whether, if the information was disclosed to the world, the person making disclosure would be vulnerable to a claim for breach of confidence. A breach of confidence is not actionable if the public interest in disclosure exceeds the public interest in maintaining the confidence. The Commissioner addressed this in detail in the Decision Notice. The FTT noted that no overriding public interest in disclosure had been suggested by way of defence to an action in this case.

10. So far, there is no issue in this appeal. The issue raised by the first ground of appeal is whether, if Article 8 applies, it would enhance a public interest defence to a claim for breach of confidence such that a different decision might have been reached by the FTT. 

11. Before turning to Article 8 I summarise briefly the common law test for breach of confidence, that being the applicable standard under section 41(1)(b).  The information in question must have the necessary quality of confidence, it must have been received or imparted to another in circumstances importing an obligation of confidence, and it must be just in all the circumstances that the person is precluded from disclosing it to others.  See Coco v AN Clark (Engineers) Ltd [1968] PSR 415 at 419, and Attorney General v Guardian Newspapers Ltd (No 2) [1990] a AC 109 at 281. It is established that information about a person’s health and treatment is private and confidential: Campbell v MGN [2004] 2 AC 457 at [145].  Disclosure of confidential information is not justified merely because the information is a matter of public interest.  The public interest in disclosure must be sufficiently important to override the duty to respect confidentiality. See the summary of the test in Toulson and Phipps, “Confidentiality” (3^rd edition) at 6-075.  

12. The scope of the public interest defence has been expanded by the Human Rights Act 1998, which introduces a test of proportionality between competing Convention rights.  While the case law as to breach of confidence involving Convention rights has mainly involved claims by individuals to restrain publication of private information and so a balance between Article 8 and Article 10 rights, in principle the same approach should apply where the balance is to be struck between competing Article 8 rights. The approach has been described in Re S [2005] 1 AC 593 at [17] as requiring “an intense focus on the comparative importance of the specific rights being claimed in the individual case”.

13. I now turn to relevant case law under section 41(1)(b).  In Bluck v Information Commissioner EA/2006/0090 the appellant made a FOIA request for information concerning the treatment in hospital of her deceased daughter.  The Information Tribunal emphasised the very great importance of respecting confidentiality in medical information, that a duty of confidence survives a person’s death and that breach of the duty would be actionable by the deceased’s personal representatives.  That decision was referred to with approval by Foskett J in Lewis v Secretary of State for Health [2008] EWHC 2196 (QB) in concluding that the duty of confidence is capable of surviving a person’s death. In Webber v Information Commissioner [2013] UKUT 648 (AAC) the appellant sought information regarding the medical treatment of her deceased son.  The Upper Tribunal confirmed the FTT’s decision that, although considerable weight should be given to the public interest in close family members of the deceased having as much information as possible about the deceased’s circumstances before and at the time of his or her death, the public interest in protecting treatment information carried much greater weight particularly taking into account that the hypothetical claim for the purpose of section 41 FOIA would involve release of information to the public rather than to an individual.

The application of Article 8 in this case

14. Mr Paines had not been able to find any authority for the proposition that Article 8 could confer a right on the Appellant to medical or social care information about her deceased mother. Strasbourg case law clearly establishes that Article 8 applies to protect confidential medical information (see, for instance Z v Finland  (1985) 25 EHRR 371 at paragraph 95).  However there is no Strasbourg authority for a right under Article 8 to obtain confidential information relating to a deceased family member.  Indeed, Mr Paines was unable to find authority for a general right under Article 8 to obtain any information about another person.. There is authority that Article 8 is engaged in a variety of other circumstances relating to a deceased person: the disposal of the remains of a child, whether a mother had the right to change the family name on the tombstone of her stillborn child, delay in returning the body of the applicant’s child following an autopsy, and whether a mother should be able to carry out her religious duties on the grave of her child: see Marcic v Croatia (2015) 60 EHRR 2 and the authorities cited at paragraph 59. None of these involve imparting confidential information about the deceased person.  In Gaskin  v UK (1990) 12 EHRR 36 the Strasbourg Court recognised a right under Article 8 to one’s own personal information (in that case, records taken while the applicant was in local authority care). The Court declined to express an opinion on whether general rights of access to personal data and information may be derived from Article 8 (paragraph 37). The nearest which Strasbourg authority comes to establishing the right contended for by the Appellant in this appeal is TP and KM v UK (2002) 34 EHRR 2 which concerned the removal of a child from her mother as a result of suspected abuse where the mother had not been informed of the evidence of abuse on which the local authority relied.  The Court held that it was essential that a parent facing care proceedings could obtain such information, as long as it did not place the child at risk. That case is far removed from the circumstances of the present case and does not establish a wider principle as to access to information about third parties.  The right to obtain information in that case arose from the applicant’s right to be afforded a fair and adequate opportunity to participate in decision-making relating to the removal of her child from her, and this plainly engaged Article 8 rights (see paragraph 58).

15. Mr Paines urges me to refrain from going beyond the scope of existing Strasbourg case law to recognise an Article 8 right of access to personal information relating to another individual in this context.  In R (Al-Skeini) v Secretary of State for Defence and others [2008] 1 AC 153, relying on what Lord Bingham and Lord Brown said in R (Ullah) v Special Adjudicator) [2004] 2 AC 434 at [20], Baroness Hale said that the role of the domestic courts in interpreting the Convention “is to keep in step with Strasbourg, neither lagging behind nor leaping ahead ...”  Here, as the above brief survey of Strasbourg authority shows, to allow the appeal on Article 8 grounds would extend the right beyond anything established by the European Court.  I am not aware of any domestic authority in which our courts have been prepared to extend Article 8 further. It would not be appropriate for me to do so in this appeal.

16. However, even if Article 8 is engaged, it does not in the circumstances of this case enhance the public interest so as to override the duty of confidentiality.  I am not aware of any domestic authority to support such a proposition. Domestic case law, some of which I have referred to above, consistently emphasises not only the individual interest in maintaining confidentiality in medical information but also the public interest in such confidentiality being respected. Article 8 reinforces the interest in the confidentiality of such information, such that it endures after the death of the person to whom it relates. The social care records which the Appellant requests relate to her mother’s care and treatment in her last days. The records will include medical information and other private information which is similar in character to medical records and attracts the same public interest in protecting their confidential nature.  As the courts and tribunals have frequently observed, the law must provide sufficient protection of sensitive personal data so as to ensure that individuals feel confident in disclosing such information to their doctors and carers without fear that it will be disclosed without their consent.

17. The appellant’s personal interest in obtaining that information cannot override that powerful public interest. Her inherently private interest in the information carries little weight when one takes into account that disclosure under FOIA is to the world not only to the Appellant.

18. Apart from the Appellant’s understandable personal wish to know what happened to her mother, the Appellant says that her mother would have agreed to disclosure and also that the Appellant wishes to know if there is any genetic issue that affects her.  As to the former, it may be that her mother would have shared information about her care and treatment with the Appellant had they been in touch but her mother would have been in control of what was shared. It is not possible to know that her mother would have shared all the information which is in the care records.  There is no reason to suppose that she would have been willing to share the information more widely. As to the latter, the Appellant has not explained what substance there is to her concern, and there is no reason to suppose that the records would shed light on this issue. There is no basis for finding that the Appellant’s interest in obtaining that information generates a public interest which gets anywhere close to overriding her mother’s confidentiality rights. 

Selective disclosure

19. In the light of my conclusions as to Article 8, I do not need to linger on this ground.  All of the Appellant’s mother’s social care records were confidential. As the Commissioner said, the records concern “sensitive information regarding the medical and other care received from the care services shortly before the individual’s death”.

20. Neither the Commissioner nor the FTT was provided with the disputed information and so neither of them could have considered the possibility of selective disclosure for themselves. No argument appears to have been raised before the Commissioner or in the FTT about differentiation of the material and there was no reason for either of them to have thought that there might be any such issue, and so there was no error in the FTT considering the information request as a whole.

Conclusion

21. For the above reasons this appeal is dismissed.

Signed on the original Kate Markus QC

on 9 November 2015 Judge of the Upper Tribunal