Duty of Confidence Survives Death: Bluck v Information Commissioner

Introduction

The case of Bluck v. Information Commissioner and Epsom and St Helier University NHS Trust ([2007] UKIT EA_2006_0090) presents a significant examination of the interplay between the Freedom of Information Act 2000 (FOIA) and the duty of confidentiality, especially concerning information related to a deceased individual. The appellant, Pauline Bluck, sought access to her late daughter Karen Davies' medical records, which had previously been concealed by the Trust following an admission of inadequate care and a subsequent settlement. The crux of the dispute centered on whether these records could be disclosed under FOIA or were protected by confidentiality obligations that extend beyond Karen Davies' death.

Summary of the Judgment

The United Kingdom Information Tribunal, presided over by Deputy Chairman Chris Ryan and lay members Rosalind Tatam and Michael Hake, upheld the Information Commissioner's Decision Notice dated 23 October 2006, thereby dismissing Pauline Bluck's appeal. The Tribunal concluded that the medical records in question fell under FOIA section 41 (breach of confidence) and were exempt from disclosure. Crucially, the Tribunal determined that the duty of confidence associated with Karen Davies' medical information survived her death, allowing her personal representatives to enforce confidentiality even posthumously. Additionally, while the Tribunal briefly addressed sections 42 and 44 of FOIA, these were deemed unnecessary to resolve directly as the section 41 exemption sufficiently addressed the appellant's request.

Analysis

Precedents Cited

The judgment extensively referenced several key cases that shaped the Tribunal's decision:

Coco v A N Clark (Engineers) Limited [1968]: Established the three elements required for a breach of confidence action—quality of confidence, obligation of confidence, and unauthorized use.
Attorney General v Guardian Newspapers [1990]: Defined the duty of confidence arising when information is received in circumstances imposing confidentiality.
Ash v McKennitt [2006]: Highlighted the relationship between Articles 8 and 10 of the European Convention on Human Rights and the tort of breach of confidence, emphasizing the protection of private information.
Morison v Moat (1851): Demonstrated that the duty of confidence can be enforceable by personal representatives posthumously.
Plon v France [2004]: Affirmed the survival of confidentiality rights after death, allowing personal representatives to take action.

These cases collectively underscored the robust nature of confidentiality obligations, particularly regarding private and sensitive information, and their capacity to persist beyond an individual's lifetime.

Legal Reasoning

The Tribunal's legal reasoning centered on the interpretation of FOIA sections 41, 40, and 44, alongside the principles derived from relevant case law and the European Convention on Human Rights (ECHR). Key points include:

Section 41 (Breach of Confidence): The Tribunal affirmed that the medical records were exempt under section 41, as their disclosure would breach the established duty of confidence, which the Tribunal conclusively held survives the individual's death.
Survival of Duty Post-Mortem: Drawing on both common law precedents and ECHR principles, particularly Article 8, the Tribunal determined that confidentiality obligations do not terminate upon death. This ensures that personal representatives can uphold and enforce the confidentiality of the deceased's private information.
Balancing Public Interest: While the appellant argued significant public interest in disclosure to promote accountability and transparency in healthcare, the Tribunal found that the public interest in maintaining confidentiality to preserve trust in medical establishments outweighed such considerations in this case.
Article 8 Considerations: The Tribunal integrated ECHR Article 8 into its analysis, recognizing the right to privacy and the necessity of balancing it against freedom of expression under Article 10.

Furthermore, the Tribunal dismissed alternative defenses related to the lack of detriment, the alleged loss of confidence quality, and the enforceability of confidentiality rights by personal representatives, reinforcing the primary conclusion under section 41.

Impact

This judgment carries substantial implications for the administration of the FOIA and the confidentiality of personal information, particularly relating to deceased individuals:

Clarification of Confidentiality After Death: The ruling definitively establishes that the duty of confidentiality can survive death, empowering personal representatives to act against unauthorized disclosures.
Reinforcement of FOIA Exemptions: By upholding section 41, the Tribunal emphasizes the strength and permanence of confidentiality exemptions within FOIA, limiting the scope of public access to sensitive information.
Interaction with Human Rights Law: The judgment exemplifies the integration of ECHR principles into domestic law, particularly how privacy rights influence the interpretation and application of FOIA provisions.
Guidance for Public Authorities: Public bodies must exercise caution and uphold confidentiality obligations, especially concerning sensitive personal data, to maintain public trust and comply with legal standards.

Future cases involving similar disputes will likely reference this judgment, providing a precedent that reinforces the enduring nature of confidentiality duties under FOIA and the compatibility of such duties with human rights obligations.

Complex Concepts Simplified

Freedom of Information Act 2000 (FOIA): A law that allows individuals to request access to information held by public authorities, promoting transparency and accountability.
Section 41 - Breach of Confidence: This section exempts information from disclosure if releasing it would breach a confidence that is actionable by the original provider or another person.
Duty of Confidence: An obligation to protect private information obtained in confidence, ensuring it is not disclosed without authorization.
European Convention on Human Rights (ECHR) Article 8: Protects the right to respect for private and family life, home, and correspondence.
Section 44 - Prohibition on Disclosure: Exempts information if its disclosure is prohibited by law, incompatible with community obligations, or would constitute contempt of court.
Personal Representatives: Individuals authorized to act on behalf of a deceased person, including managing their estate and legal matters.
Public Interest Test: A legal assessment weighing the benefits of disclosure against the necessity of maintaining confidentiality.

Conclusion

The Bluck v Information Commissioner judgment serves as a pivotal reference in understanding the enduring nature of confidentiality obligations within the framework of the Freedom of Information Act 2000. By affirming that the duty of confidence persists beyond an individual's death, the Tribunal reinforces the sanctity of private information and the mechanisms in place to protect it. This decision underscores the delicate balance between transparency and privacy, highlighting the judiciary's role in safeguarding personal information against unwarranted disclosure. For public authorities and legal practitioners alike, this judgment provides clear guidance on handling sensitive information post-mortem, ensuring compliance with both domestic laws and human rights obligations. Ultimately, the decision fortifies the trust essential between individuals and public institutions, a cornerstone of effective and ethical governance.