UK Tribunal Allows Disclosure of Deceased's Medical Records Despite Claims of Breach of Confidence

Citation: [2024] UKFTT 153 (GRC)
Judgment on

Introduction

In the matter Jane O’Connor v The Information Commissioner & Anor, the UK First-tier Tribunal (General Regulatory Chamber) considered the application of Section 41 of the Freedom of Information Act 2000 (FOIA) concerning information provided in confidence. The Tribunal examined whether the Ministry of Defence (MoD) was entitled to withhold medical records of the appellant’s late father, under the assertion that their release would constitute a breach of confidence actionable by the deceased’s estate.

Key Facts

Operation Grapple, conducted by the UK on Christmas Island in 1957-1958, involved the testing of hydrogen bombs. The appellant’s late father, a member of 76 Squadron’s ‘cloud sampling contingent’, flew through the atomic clouds post-detonation to collect radioactivity data. The appellant requested her father’s medical records under FOIA, as she believed her late father’s illnesses were linked to his exposure. The MoD withheld the information citing Section 41 FOIA.

The appellant, together with her sister and co-executor of their father’s estate, sought the release of the medical records. They submitted formal waivers stating they would not pursue a claim for breach of confidence upon disclosure of the information.

The Tribunal’s analysis centered on several legal principles:

  1. Coco v AN Clark (Engineers) Ltd [1969] RPC 41 Test: The three-part test used in assessing whether there was an actionable breach of confidence, examining the quality of confidence, circumstances of imparting, and the presence of an unauthorised use detrimental to the party who communicated the information.

  2. Duty of Confidence: The Tribunal recognized that a duty of confidence could be owed to a deceased person’s estate (as discussed in Toulson and Phipps on Confidentiality).

  3. Executor’s Power to Waive Confidentiality: The Tribunal opined that an executor or personal representative has the power to waive confidentiality or authorize the disclosure of the deceased’s confidential information, similar to their power to waive privilege.

  4. Information in the Public Domain: According to Section 41 FOIA and principles established in Webber v Information Commissioner and another [2013] UKUT 648 (AAC), disclosure in response to a FOIA request equates to placing the information in the public domain.

  5. Consent as a Criterion: Highlighted by Coppel in ‘Information Rights’ and affirmed in Tournier v National Provincial and Union Bank [1924] 1 K.B. 461, consent to disclosure by a party entitled to confidentiality negates the possibility of an actionable breach of confidence.

Outcomes

The Tribunal allowed the appellant’s appeal, finding no actionable breach of confidence because:

  • Both executors gave consent for the information’s disclosure at the relevant time.
  • The executors would not have pursued a claim for breach of confidence at the time of the MoD’s response to the FOIA request.
  • The Tribunal established that Section 41 was not engaged, as the condition of an ‘unauthorised use’ was not met due to the executors’ consent to disclosure.

Therefore, the MoD was directed to disclose the withheld information to the appellant.

Conclusion

This case asserts the significance of executor consent in determining the applicability of Section 41 FOIA concerning information purportedly provided in confidence. The decision illustrates the delicate balance between the confidentiality of medical records and the public interest in disclosure. It also clarifies the scope of the executor’s power to waive confidentiality post-mortem, which can impact a public authority’s ability to rely on Section 41 as a ground for withholding information under FOIA. This judgment sets a precedent that could influence future cases involving the release of confidential information of deceased individuals.

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