Jane O’Connor v The Information Commissioner & Anor

The Commissioner submits that the duty of confidence continues to be owed to the deceased and does not pass on to the executor upon death. The Commissioner notes that the executor or personal representative could bring a claim for breach of confidence, but this is not the same as stating the duty of confidence is automatically applied to them upon the death of the relevant person. The original confider would not have been entitled to the information under FOIA because of section 40(1) FOIA.

The duty of confidence is an absolute exemption and the Commissioner submits that due to the personal nature of such information (medical records), it is not even necessary to establish whether the confider would suffer a detriment as a result of disclosure.

The Commissioner submits that the fact her father stated, when he was alive, for the records to be investigated, is irrelevant as the Commissioner is applying the law as it stands now, not in the past.

It is submitted that the application of section 41 cannot be overridden because the AHRA process is not available to the Appellant.

The Commissioner submits that this ground does not overturn or weaken any of the strands of section 41 nor the Commissioner’s conclusions.

The second respondent submits that the elements of the test for an actionable duty of confidentiality claim are clearly made out in the context of medical records. It is reasonable to suppose that patients with medical records created before the introduction of AHRA had an understanding and expectation that their sensitive medical information would be kept confidential even after their death.

It is submitted that the Appellant has not identified sufficient countervailing public interest factors to displace the starting point of the assumption that confidentiality should be maintained.

The second respondent submits that the fact that the appellant’s father wanted enquires to be made in respect of concerns about the health impact of his military service is not the same as electing to have his medical information disclosed to the world.

Insofar as any detriment element continues to apply, it may be sufficient detriment to the confider that information is to be disclosed to persons whom he would prefer not to know of it. In the case of FOIA, this is the world at large.

The second respondent submits that the duty of confidence is not owed to the appellant, because it is not an item of property but a question of conscience. An executor does not inherit the ability to waive the duty of confidence. The MoD notes that the will identifies two executors.

The second respondent submits that the suggestion that the MOD are using the section 41 exemption to avoid disclosing unhelpful or embarrassing information, this is not a valid ground for appeal but, in any event, is not accurate and is speculative.

The second respondent adopts the arguments made in the Commissioner’s response.

Section 41 provides, so far as relevant:

“S 41 – Information provided in confidence

(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.”

The starting point for assessing whether there is an actionable breach of confidence is the three-fold test in Coco v AN Clark (Engineers) Ltd [1969] RPC 41, read in the light of the developing case law on privacy:

The common law of confidence has developed in the light of Articles 8 and 10 of the European Convention on Human Rights to provide, in effect, that the misuse of ‘private’ information can also give rise to an actionable breach of confidence. If an individual objectively has a reasonable expectation of privacy in relation to the information, it may amount to an actionable breach of confidence if the balancing exercise between article 8 and article 10 rights comes down in favour of article 8.

Section 41 is an absolute exemption, but a public interest defence is available to a breach of confidence claim. Accordingly there is an inbuilt balancing of the public interest in determining whether or not there is an actionable breach of confidence. The burden is on the person seeking disclosure to show that the public interest justifies interference with the right to confidence.

The Tribunal’s remit is governed by section 58 FOIA. This requires the Tribunal to consider whether the decision made by the Commissioner is in accordance with the law or, where the Commissioner’s decision involved exercising discretion, whether he should have exercised it differently. The Tribunal may receive evidence that was not before the Commissioner and may make different findings of fact from the Commissioner.

The issues for the tribunal determine are:

We read an open and a closed bundle.

The closed bundle consists of the withheld information. The tribunal was satisfied that it was necessary to withhold the information in the closed bundle under rule 14.

We read witness statements and heard oral evidence from Brigadier Duncan Robertson Wilson, Medical Director to the Surgeon General, UK Defence Medical Services.

For the reasons given in the hearing, we permitted the appellant to rely on additional witness statements from the appellant herself and her sister, Rosemary Nicholson.

We held a closed session. The following gist of the session was provided to the appellant in the hearing:

“1.

The Panel asked Brigadier Wilson (‘BW’) whether the urine and blood test results in the Closed Bundle were unusual and/or consistent with exposure to radiation. BW’s evidence was that:

a)

Dosimeter readings are not held on the medical file but would show levels of exposure

b)

Urine tests looked for signs of gross kidney abnormality. Could not see anything unusual in those urine tests

c)

There were 7 blood tests in 1957-1958. Not an expert on radiation exposure but would say there is some evidence consistent with radiation exposure—lowered white blood cell counts. Any inferences on cause and effect would need more expert input. However, the blood counts were back to normal in tests done subsequently in the 1960’s.

d)

The three significant blood test results have already been released within a list provided by the Atomic Weapons Establishment (on the Daily Mirror website)

2.

The Panel asked BW to clarify which/how many blood test results in the Closed Bundle have been released via the above list. BW said that:

a)

There appears to be one blood test result which was not in the above list, and another blood test result which may be on the list (unclear due to manuscript amendment in medical record). Therefore either 5 or 6 of the blood tests in 1957-1958 are on the list released.

b)

The test (s) in the medical records but not on the AWE list probably relate to routine crewman checks.

c)

Asked by MOD counsel about medical records in 1957-1958 (which were not urine/blood samples), BW said that:

d)

From his review, no information or records consistent with radiation-related problems. Mostly routine aircrew medicals, he was mostly fit and well.”

We read a skeleton argument from the second respondent and heard and took account of oral submissions from both parties.

Mr Barrett submits that where information has been provided by a third party, the operative question under section 41 is whether disclosure up to the date of the request would give rise to an actionable breach of confidence. The appellant submits that the purpose of the provision is very simple. It is to ensure that a public body is not put in a position by being required to disclose information under FOIA where it is going to be sued for a breach of confidence.

Mr Barrett submits that the critical factor in this appeal is that the only legal person with any right to bring a claim for breach of confidence are the co-executors of the deceased’s estate.

Mr. Barrett submits that an obligation of confidence is owed under 2 causes of action, in contract and in equity (conscience), but under either cause of action it is a legal obligation and the corollary of the legal obligation on the authority is that there is a right holder. While the appellant’s father was alive, he was the right holder. Under implied contract or equity (conscience) he had a right that was exercisable against the MoD. When he died, his right, in so far as it can persist beyond death was transferred into his estate. The only persons who can exercise rights in respect of the estate are the appellant and her sister as co-executors.

Mr. Barrett submits that where both of those persons confirm that they wish disclosure to be made and have confirmed unequivocally that they waive any potential claim for breach of confidence in respect of such disclosure, then disclosure would not give rise to any actionable breach of confidence.

Mr. Barrett illustrated this by using the following example. If the MoD acquired information relating to B in circumstance that give rise to an obligation of confidence, if B subsequently requested that the MoD disclosure the information under FOIA and made it unequivocally clear that he would not bring a claim for breach of confidence, there would be no question that the MoD could refuse to provide the information under section 41. Mr. Barrett submits that there is no difference of legal principle or substance between that position and the position in this appeal.

In relation to the public interest, Mr. Barrett submitted that in deciding what weight to be given to maintaining any obligation of confidence it is highly relevant that the executors who could exercise the relevant legal right have requested disclosure and expressly waived the right to bring legal action.

Mr. Barrett submitted that release of the information could not undermine the future confidence of members of the armed forces in sharing information when dealing with MoD medical personnel, because all information going forward is subject, in any event, under the AHRA to a right of access by the personal representative of the deceased in any event, who are then unrestricted in the use they wish to make of that information including publication.

Mr. Barret submitted that there was a public interest in disclosure because tens of thousands of members of the armed forces are affected and hundreds or thousands of their children are now in the position where their parents are deceased and there is no legal route to obtain information about their parent’s health other than under FOIA. The interests of those individuals and the interests of transparency are an important consideration.

In response to questions from the tribunal, Mr. Barrett submitted that the fact that the executors have not seen the requested records does not undermine the effectiveness of their consent to publication absent any issues of legal capacity.

Mr. Barrett submitted that there was a clear and substantive distinction between this appeal and the decision of the Upper Tribunal in Webber v Information Commissioner and another [2013] UKUT 648 (AAC). In Webber the appellant was not the personal representative or the executor and there was no evidence available from those who would or might exercise the right to bring an action for breach of confidence.

The second respondent submits that the AHRA does not apply. In the 1950s the appellant’s father would not have expected blood test data to be disclosed.

The Will of the appellant’s late father shows that the appellant and her sister were appointed as executors. There is no evidence as the other executor’s position. The appellant’s own preference does not remove the risk of legal action.

Section 41 does not contain a ‘carve out’ of information requested by legal representatives/executors. The Freedom of Information (Scotland) Act 2002 contains an absolute exemption for a deceased person’s medical records.

In Bluck v IC and Epsom & St Helier University NHS Trust (17 September 2007), the basis of the duty of confidence is treated by the information rights tribunal not as a matter of inherited property but as lying “in conscience” (paragraph 23), with a focus on preventing “unconscionable behaviour that would undermine confidence in the secrecy of medical consultations” (paragraph 26). Where FOIA disclosure amounts to disclosure ‘to the world’, the interest in preventing such ‘unconscionable behaviour’ (not by the appellant but by third parties) remains even when an executor has requested the information to be provided.

The appellant has not inherited her father’s right to access his records under data protection, and he could not have made a FOIA request for this own personal data.

The annotated news article does not show that her father elected to have his medical information disclosed to the world. The appellant’s late father’s wish for enquiries to be made in the generic sense does not take the appellant’s case further.

In the specific circumstances of this case, some blood test documents were erroneously disclosed to the Appellant following a subject access request to the Atomic Weapons Establishment (paragraph 22 of BG WS). However, a release in this manner is not synonymous to the information being in the public domain.

The MOD attaches great importance to the confidential nature of the relationship between patients and Service medical practitioners and, as medical records relating to a deceased service person contain information which the patient would have expected to remain confidential, the MOD would not wish to undermine that relationship.

The Appellant has not identified sufficient countervailing public interest factors to displace the starting point of the assumption that confidentiality should be maintained. Insofar as the Appellant suggested that information is being sought as a means to consider/bring a civil claim, alternative mechanisms exist in the civil courts for applying for such disclosure (to the applicant only, not to the world at large).

The appellant’s assertions underpinning her final ground of appeal are purely speculative. In any event, BG at paragraph 18 of his statement refutes the suggestion of an improper motivation and explains steps already taken to provide information about the impact of nuclear testing.

Mr. Ustych confirmed that the MoD understood the scope of the request to include full medical records for 1957 and 1958 and the blood and urine tests before and after that period.

In relation to the implications of having evidence from both co-executors, Mr. Ustych did not fundamentally disagree with Mr. Barrett’s analysis of how an action for breach of confidence works i.e. that there has to be someone who has standing to bring a claim and that when the individual in question dies those who have standing are the executors/personal representative. Mr. Ustych submitted that the difference between them related to the effect of the Webber case.

Mr. Ustych submitted that the statement of the Upper Tribunal in Webberat paragraph 44 was a statement of principle and not tied to the facts of the case:

“43.

Mr Barrett returned to his argument before me. He first made the point that the actionability was to be established at the time of the application. I have no issue with that. He then argued that the plain and ordinary meaning of section 41 was that it only applied if a public authority could establish that disclosure of the information would expose the authority to a successful claim for breach of confidence.

44.

Miss John submitted that this was too narrow an approach to section 41(1)(b) both as to the time frame and as to the test of actionability. I agree. I also consider that the argument for the appellant focuses too narrowly on the particular circumstances of the appellant's own application. The test must be applied generally to any information that comes within the potential scope of the provision, so for example it must apply equally to any release of any information within the scope of the section about any deceased person by any public authority.”

Mr. Ustych submitted that the Upper Tribunal in Webber was saying that it was not about whether anybody was going to sue the public authority, but that the tribunal had to take a step back and effectively assess the nature of the information and if it would, if disclosed, trigger a section 41 breach of confidence claim, rather than focussing on the specific legal situation vis-à-vis any executors or similar.

Mr. Ustych submitted that the first-tier tribunal decision in Armstrong v Information Commissioner and Nottinghamshire NHS Trust[2015] WL 4874768 was, although not binding, a helpful illustration of how Webber was interpreted by that tribunal. The tribunal in that case considered itself bound by certain points of principle set out by the Upper Tribunal, which it set out at paragraph 12 as follows:

Mr. Ustych submitted that this accorded with Webber’s ‘slightly more abstract’ way of looking at a breach of confidence claim.

Mr. Ustych noted that the tribunal did go on to consider the evidence of consent by family members and submitted that an important point is the question of the date at which the evidence of consent is to be considered. In Armstrong the tribunal had evidence that the executors consented at the date of the hearing but stated, at paragraphs 26 and 30:

“The difficulty facing the Appellant is that we are required by FOIA section 57, read in conjunction with section 50, to consider, not whether the requested information should be disclosed today, but whether the Information Commissioner was right to decide that the Council had dealt with the request in accordance with the statute. The issue must therefore be assessed as at the date of the refusal. And at that stage the Trust did not have the consent of the deceased's children and no one had been appointed as his personal representative.

…

30.

We conclude that, as at the date of the Trust's rejection of the information request, it cannot be said that the Trust would have had a defence to a claim for breach of confidence based on the consent of all those who might have been a position to object to disclosure.”

Mr. Ustych submitted that the appellant’s request made no reference to her being an executor and that was not information available when the decision was made on 1 July 2021. The mention in the request for an internal review that the appellant as his next of kin had a legal right to access his records post-dates the refusal and is not a reference to being executor. It is only when the complaint is made to the Commissioner on 14 December 2022 that there is is a reference to the status of executor. When the will was provided the MoD flagged up the point about there being no consent from the co-executor and that was only provided yesterday.

Mr. Ustych submitted that, as per Armstrong, that means that at the relevant point of time for the purposes of this appeal the MoD would not have had a defence to a claim for breach of confidence based on the consent of all those who might have been in a position to object to its disclosure.

Although in Armstrongthe tribunalultimately concluded that there was a public interest defence so section 41 did not apply, Mr. Ustych submitted that the tribunal had evidence before it as to the executor’s stance at the date of the request and this tribunal does not have that evidence in this appeal.

In response to questions from the Judge Mr. Ustych accepted that the evidence given by the appellant and her sister did not suggest that their view has changed in any way since the request was made, but said that his primary submission was that in accordance with Webberthe tribunal is not looking at the level of individual detail. The tribunal is looking at the nature of the information and the consequences of their disclosure.

In relation to the public interest and expectations of confidentiality, Mr. Ustcyh submitted that the expectation in relation to medical records created before the AHRA was that confidentiality would be preserved and there is a public interest in confidentiality which goes beyond any harm to the individual person and their family. The military’s ability to provide care to service personnel depends on that relationship being preserved. This might be diminished by disclosure in circumstances that go outside the scope of the AHRA, which might result in individuals losing confidence in the confidential relationship.

It is accepted that there is a significant public interest in this issue at least in the sense that it is a matter of public discussion and concern. It is accepted that what the appellant’s late father thought is impactful, but in spite of that concern he did not submit a subject access request.

Mr. Ustych submitted that the withheld information can be divided into categories. First, the blood test results, most of which have been published because they appear in the list published by the Daily Mirror. There are one or two that have not been dicsclosed. Second, a large body of medical records.

Mr. Ustych submits that the identified public interest in disclosure will apply to a greater extent to the blood tests than to the other medical records. Further there is strong privacy element to the remainder of the records which might contain information that is embarrassing or highly personal. Brigadier Wilson’s evidence was that the vast majority of the medical records did not contain anything relevant to the identified public interest.

Mr. Ustych submitted that unlike in a normal FOIA appeal the starting point in relation to section 41 is the presumption that confidences will be maintained.

Mr. Barrett submitted that whilst the relevant date was the date of the response to the request, the tribunal could take account of all facts and matters at that date, and it is not confined to those that were known to the public authority at the time.

Mr. Barrett submitted that an important distinction between this appeal and Webber is that the appellant in Webber could have been appointed as personal representative and used the AHRA to obtain the information, which caused the Upper Tribunal a degree of frustration because their view was that was the proper route. The decision is dealing with those particular facts and the analysis in paragraphs 44-47 must be seen in that light. Mr. Barrett submitted that the Upper Tribunal is not saying, and could not be saying, that section 41 would apply in circumstances where the parties with the related legal right have specifically waived or disclaimed any claim.

In relation to the public interest balance, Mr. Barrett submitted that Brigadier Wilson’s personal expectations of confidentiality are not relevant and that the fact that no subject access request was made by the appellant’s father while he was alive is not relevant. It cannot be assumed that he was aware of the right to do so.

Although it appeared during the course of the hearing that there might be some dispute as to the scope of the request, Mr. Ustych helpfully clarified the MoD’s understanding of the scope of the request in his reply.

Looking at the request objectively, in the light of the surrounding circumstances, and in the light of the clarification provided by the claimant, we find that the request is for the full medical records from 1957 and 1958 and any blood and urine tests from before and after that period. That is the information in the closed bundle.

We must decide whether there was an actionable breach of confidence at the date of the response to the request. That is the relevant date. We are not limited to considering matters that were known to the MoD and it is permissible to have regard to later- occurring matters if they cast light on the circumstances at the reference date.

The tribunal has been provided with evidence from the deceased’s executors which was not available to the MoD at the time. On the basis of that evidence two things are clear:

There is no evidence to suggest that the views of the executors have changed since the relevant date. In our view that is highly unlikely. The tribunal takes the view that this evidence casts light on their views at the relevant date. On the basis of the evidence before us today, we find that at the relevant time in July 2022:

We know that the executors had not yet expressly waived their legal rights to pursue a claim for breach of confidence at the relevant date, and the fact that they have done so recently does not alter that for the purposes of this appeal.

In determining this question we apply the three-fold test in Coco v AN Clark (Engineers) Ltd [1969] RPC 41, read in the light of the developing case law on privacy:

We accept that the first and second limbs are satisfied.

We agree with Mr. Bartlett that, on more straightforward facts, if the tribunal had evidence before it that the person who had provided information to a public authority in confidence consented to disclosure to the world, and there was no-one else who was entitled to maintain a claim of confidentiality, the public authority would not be able to rely on section 41 in relation to a FOIA request.

We take the view that this would be the case even if the evidence which showed that person consented only emerged during the tribunal hearing, and was not known the public authority at the time, as long at the tribunal was satisfied that the consent was present at the relevant date.

The tribunal agrees with the following statement in Coppel, ‘Information Rights’, volume 1, 34-009 in relation to consultation with those whose rights of confidentiality would be breached by disclosure:

“If the persons consulted consent to disclosure, and no other person is entitled to maintain any claim to confidentiality with regard to the information in question, then the public authority will be released from any obligation of confidence that it would otherwise have had, and it will not be able to rely on the exemption to resist disclosure.”

Further we note the following passage from Toulson and Phipps on Confidentiality (4^th Ed.) at paragraph 5-052: “A person cannot be in breach of a duty of confidence to another by disclosure of information or material to which the other consents.” (Footnote: ²)

The First-tier Tribunal in Armstrongcategorised consent as a ‘defence’ to a claim for breach of confidence, but it might be also be categorised as a failure to satisfy limb three of the Cocotest. That is because disclosure would not be an ‘unauthorised’ use, where the person in question consents to disclosure.

The fact that consent would defeat a claim for breach of confidence can be tested by considering the approach a Judge might take in an action for breach of confidence, if the evidence showed that the claimant had consented to disclosure at the relevant time.

The position is complicated in this appeal by the fact that the appellant’s father is deceased. Whilst the appellant’s father was alive, the MoD owed him an obligation of confidence, in contract and in equity (conscience). He was the person who could have consented to disclosure. We find that when he died, the duty and the correlative right, whether in contract or equity, was transferred to his estate.

The Upper Tribunal in Webberassumed, without deciding, that an executor or personal representative could bring an action for breach of confidentiality.

The tribunal notes the following passages from Toulson and Phipps on Confidentiality (4^th ed):

“Privilege may survive in favour of a deceased's estate and it is hard to see why a court should not recognise the survival of an obligation of confidentiality. The period for which any duty of confidentiality could reasonably be expected to continue would depend on many circumstances, including the nature of the relationship, the nature of the information and any harm which might be caused to the deceased's estate or, possibly, those whom the deceased would reasonably have wished to protect, as well as any grounds for justifying disclosure.” (para 6-025)

“Equity may impose a duty of confidentiality towards another after the death of the original confider. The question is not one of property (whether a cause of action owned by the deceased has been assigned) but of conscience.

It is open to the courts to regard divulgence by a doctor of information supplied in confidence by a patient who has since died as being unconscionable as well as unprofessional. If so, there is no reason in principle why equity should not regard the doctor as owing a duty of confidence to the deceased's estate, consonant with the maxim that equity will not suffer a wrong to be without a remedy.” (paragraph 10-061)

The tribunal notes that paragraph 10-061 expressly recognises that the duty of confidence would be owed by the doctor to the deceased’s estate. We agree with that. We do not agree with the Commissioner’s position, set out at paragraph 22 of the grounds of appeal that the duty is not owed to the estate.

Further, in the tribunal’s view, just as an executor or personal representative have the power to waive privilege after an individual’s death (Footnote: ³), in our view an executor or personal representative has the power to consent to or to authorise disclosure of confidential information.

In our view, this is sufficient to allow the appeal. Both executors consented to disclosure at the relevant time. There is therefore no actionable breach of confidence and section 41 is not engaged.

Both parties addressed us on the effect of Webber. The Upper Tribunal in that appeal was considering the question of whether the First-tier Tribunal was correct to decide that the application of section 41 could not be avoided on the ground that there was no personal representative.

We agree with the tribunal in Armstrong that the following principles were set out in Webber:

We do not consider that Webber prevents a tribunal from reaching the conclusion that there is no actionable duty of confidence where there is evidence that those who to whom the duty of confidence is owed consent to disclosure.

For those reasons we conclude that there was no actionable breach of confidence at the relevant time. We do not need to go on to consider the public interest balance.