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The Dead, The Bad and The Expert

Teresa Bastow 19 June 2008. The Dead, The Bad and The Expert. FOI Challenges to Archives. The Dead, The Bad and The Expert. FOI Challenges to Archives Teresa Bastow 19 June 2008. In this presentation. THE DEAD THE BAD. In this presentation. THE EXPERT. The Dead. The Dead.

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The Dead, The Bad and The Expert

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  1. Teresa Bastow 19 June 2008 The Dead, The Bad and The Expert FOI Challenges to Archives

  2. The Dead, The Bad and The Expert FOI Challenges to Archives Teresa Bastow 19 June 2008

  3. In this presentation • THE DEAD • THE BAD

  4. In this presentation • THE EXPERT

  5. The Dead

  6. The Dead • Royal Surrey County Hospital (FS50128269), Dec 2006 • Information relating to late husband’s treatment • Liverpool Women's NHS Foundation Trust (FS50127442), Feb 2007 • Medical report regarding late mother • ICO held that s.21 applied because access could be provided via AHRA 1990 • noted that section 41 and s.44 (HRA) could possibly apply

  7. The Dead • Epsom and St Helier University Hospitals NHS Trust (FS50071069), Oct 2006 • Pauline Bluck V Information Commissioner and Epsom and St Helier University NHS Trust (EA/2006/0090), Sept 2007 • Request for medical records relating to late daughter’s death in the hospital • Hospital admitted liability and paid compensation • Request refused under s.41: personal representative did not allow access

  8. The Dead • Epsom and St Helier University Hospitals NHS Trust (FS50071069), Oct 2006 • ICO held the information was confidential: • Information was obtained from third parties • Medical records have the necessary quality of confidence to sustain an action for breach of confidence • Information was imparted in circumstances which created an obligation of confidence • Can duty of confidence survive death?

  9. The Dead • Epsom and St Helier University Hospitals NHS Trust (FS50071069), Oct 2006 • Can duty of confidence survive death? YES – breach of confidence would affect conscience of defendant • "After reaching this view, it is therefore necessary to establish who would be able to bring the action in the event that the duty of confidence were breached" • Personal representatives i.e. executors or administrators of the estate

  10. The Dead • Epsom and St Helier University Hospitals NHS Trust (FS50071069), Oct 2006 • "Any action would most likely be in the form of an injunction to prevent publication of the information". • S.42 also applied to some of the information: "the balance of the public interest maychange over time. As more time elapses after the conclusion of the litigation, it may become more likely that this section of the information could be disclosed (insofar as it would not breach the duty of confidence owed to the deceased's medical records)."

  11. The Dead • Pauline Bluck V Information Commissioner and Epsom and St Helier University NHS Trust (EA/2006/0090), Sept 2007 • “no need to show detriment, merely to show that there was a breach of the deceased’s persons reasonable expectation of confidence.” • "We conclude that a duty of confidence is capable of surviving the death of the confider and that in the circumstances of this case it does survive."

  12. The Dead • Pauline Bluck V Information Commissioner and Epsom and St Helier University NHS Trust (EA/2006/0090), Sept 2007 • Counsel for the appellant raised the issue of length of time • Counsel for respondent replied • "The confidence would last, as any confidence does, until either the information passed into the public domain or the public interest in its disclosure came to outweigh the public interest in maintaining the confidence". • Only mention of duration …

  13. The Dead • County Durham NHS Primary Care Trust (FS50111780), Feb 2007 • Trafford Metropolitan Borough Council (FS50153179), Nov 2007 • Breach could be brought by personal rep • "The Commissioner was mindful that in some circumstances there may be a public interest in the disclosure of such information, such as instances where there were suspicious circumstances surrounding a person's death - although he considers such circumstances will be rare."

  14. The Dead • Walsall NHS Teaching PCT (FS50163705), Dec 2007 • "X was for many years a patient at … I appreciate that medical records are normally confidential but in view of the length of time since this man's death and the fact that he has no direct descendants I am hopeful that permission to view the records can be granted in this instance." • length of time since death (over 20 years) • length of time since record created • no discernable personal representative

  15. The Dead • Walsall NHS Teaching PCT (FS50163705), Dec 2007 • "In order for information to have the necessary quality of confidence, it must be something worthy of protection that is, it mush be something that is not trivial and not generally known or publicly available by other means." • Some information, including psychiatric reports openly available at The National Archives • The decision … ?

  16. The Dead • Walsall NHS Teaching PCT (FS50163705), Dec 2007 • Duty of confidence attached to medical/health records can survive the death of the person to whom the records relate • Would disclosure constitute an actionable breach? YES • If so, by whom? Public authority does not have to establish this as a matter of fact, but should not lay itself open to legal action.

  17. The Dead • Hertfordshire Partnership NHS Trust (FS50124800), Jun 2008 • "Whilst the Commissioner acknowledges that the information in the Report is not the actual medical records of Ms B and Mr A, he is satisfied that the information in the Report has been drawn from the medical records and from interviews with the relevant health professionals involved in their care, and has been combined into a Report about the circumstances surrounding their deaths. While the information is not in the form of medical records the Commissioner believes that it is of the same sensitivity … as their medical records."

  18. The Dead • When else could duty of confidence survive death?? • 1911 census? • Tax returns? • Medical information collected outside the patient-doctor relationship? • Information reported by a prison officer … ? • When does the duty cease?

  19. The Dead • What we are doing: • Ongoing talks with ICO • Taking this forward with NHS trusts • Await ICO Hindley decision • Approach reached with one POD (psychiatric records) • 100 years from last date of action: OPEN • Patient still living: close s.40 • Patient deceased: open if personal representative is applicant or has given consent

  20. The Dead • Approach reached with POD (psychiatric records) • Patient dead 30 years: refuse under s.41 (no confirm/no deny as eg treatment in mental hospital implies mental illness) • Patient dead 30+ years: • release basic info to anyone • Applicant close family relation: release outside FOI • For medical research (any date) refer to NHS PIAG, as they can give statutory cover for research purposes without patient consent under s.60 of the 2001 Act

  21. The Bad

  22. The Bad • “It is a basic principle that information may not be withheld which has already been in the public domain. Most information used in courts falls into this category. Where it is clear from the file that the information was released in open court, it should be released" - Access to Public Records, Sept 2001

  23. The Bad • Avon & Somerset Constabulary (FS50078588), Feb 2006 • Guardian Newspapers Ltd V information Commissioner and The Chief Constable of Avon and Somerset Police (EA/2006/0017), March 2007 • investigation into trial of Jeremy Thorpe (former liberal leader), ended in June 1979 • Lot of media coverage at the time • S.30 (qualified, 30 year duration) applied

  24. The Bad • Avon & Somerset Constabulary (FS50078588), Feb 2006 • Book published in 1996 • Yorkshire Television programme in 2002 • Files at The National Archives on other criminal investigations opened before 30 year period • Passage of time, exemption due to expire • Decision … ?

  25. The Bad • London Borough of Camden (FS50123489), Feb 2007 • London Borough of Camden V Information Commissioner (EA/2007/0021), Dec 2007 • Camden possesses an electronic database of all the ASBOs issued in the borough, both current and expired and that this contains basic information of names, addresses, terms of the orders and nature of the order. We request a copy of this database to be supplied to us .... All the information in it of course, is in the public domain, because these orders are made in public and indeed, are supposed to be publicly known about. They can be specifically publicised by councils if they wish.’

  26. The Expert

  27. The Expert • Home Office (FS50166599), Feb 2008 • Request for information relating to work permits issued to specific sector employers • Border and Immigration Agency (“BIA”) held records of 1.2 million work permit applications received since 1997 on its “Globe” database. In order to provide the figures specified in the request a new report would need to be built and run and that the degree of “searching and data manipulation required would constitute creating new information.” The Home Office clarified that the time estimated to write and run such a report was “about half a day”.

  28. The Expert

  29. The Expert

  30. The Expert • DEFRA (FS50075607), July 2007 • Jenkins V Information Commissioner and DEFRA (EA/2006/0067), Nov 2007 • "The Tribunal finds the Commissioner’s contentions more persuasive, although the point is not entirely free from doubt. This is partly because of the drafting in Regulation 4 itself, and indeed in the Regulations as a whole which the Tribunal finds could perhaps more clearly have expressed its intentions with regard to the issue under consideration. However, it is perhaps understandable that in the early days of this regime, specific attention was perhaps not afforded to the addressing of this issue, namely whether an allowable cost can be counted in respect of extracting exempt material."

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