The absolute exemption at section 41 of the Freedom of Information Act extends to information obtained by the public authority the disclosure of which would give to an actionable breach of confidence. Does the obligation of confidence survive the death of the confider? If so, would a breach of that obligation be actionable, even if it is not clear exactly who could bring such an action? These issues arise most notably in the context of medical records. The Upper Tribunal has had something to say on this in two recent decisions.
In Webber v IC and Nottinghamshire Healthcare NHS Trust (GIA/4090/2012), the appellant had made a FOIA request for information (including hospital records) about the death of her son in 1999 when he was compulsorily resident at Rampton hospital. This was refused on section 41 grounds. The Commissioner upheld the refusal, as did the First-Tier Tribunal. In doing so, it somewhat unusually did not see the withheld information for itself, since it had not been asked to by anyone.
Mrs Webber’s appeal to the Upper Tribunal has also been dismissed. Judge Williams considered that the Tribunal could not be faulted for not differentiating between different categories of withheld information (which it obviously could not do, as it had not seen the information): “it is the task of the tribunal to decide the case before it unless it sees reason to investigate further” (paragraph 30).
He also confirmed the well-established principle that what matters under FOIA is information rather than documents: though the records were created by the NHS Trust, the information contained in those records came from the patient. In the section 41 context, “obtained” simply means “come to have”, which can be active or passive (paragraph 38).
Judge Williams confirmed a further touchstone of FOIA, namely that whatever the particular interests of the requester, this “remained an application to put the information into the public domain” (paragraph 37), that being the effect of disclosure under FOIA.
Disclosure would entail a breach of confidence which was actionable after the patient’s death, notwithstanding the argument that, in this case, the only person who could sue would be the personal representative (who was likely to have been the requester: thus it was submitted that she would in effect have been suing herself).
Judge Williams also found that there would not have been a public interest defence to the breach of confidence. Here he gave weight to the fact that some of the information sought would or could come into the public domain or be obtained in another way: a coroners’ inquest, or through an application under the Access to Health Records Act 1990 (now largely supplanted by FOIA, but not as regards deceased persons) which allows for requests for access to information to be made by (inter alia) patients’ personal representatives. Such an application was outside the Upper Tribunal’s jurisdiction but it was “relevant to note that it exists as a specific if limited remedy for some aspects of the application made for the appellant in this case” (see paragraphs 23-24).
In M v IC and Medicines and Health Products Regulatory Authority (GIA/3017/2010), Upper Tribunal Judge Lloyd-Davies allowed the requester’s appeal for information in a report held by the public information concerning a pharmaceutical trial of a drug developed by Pfizer. That information had again been withheld under section 41, with the Commissioner and First-Tier Tribunal agreeing – regardless of whether the participants in the trial were dead or alive at the time of the request.
The appeal was allowed because of a procedural error – the Tribunal had authorised more extensive redactions than were in fact being put to it.
The remitted hearing is to include questions of identifiability of patients in the context of anonymised drug trial data. The line of authorities on statistical information (Common Services Agency, Department of Health) will no doubt be considered.
The decision contained this obiter observation on actionable breaches of confidence in the case of deceased patients:
“where the confidence arises in the context of a patient/healthcare professional relationship, I am minded to conclude that the obiter observations of Mr Justice Foskett in R (Lewis) v Secretary of State for Health  EWHC 2196 (QB) are correct”.
Note: I acted for the Commissioner in the M case; my colleague Joe Barrett acted for the appellant in Webber.
This post originally appeared on the Panopticon Blog and is reproduced with permission and thanks.