Full case report
Bluck v The Information Commissioner and Epsom & St Helier University NHS Trust
Reference Appeal No. EA/2006/0090
Court Information Tribunal
Judge Ryan (Tribunal Deputy Chairman) and Tatam and Hake (lay members)
Date of Judgment 17 Sep 2007
Freedom of information – Medical records – Access to medical records of deceased by mother – Exemptions from disclosure – Freedom of Information Act 2000, s.41
The mother of a deceased woman sought disclosure under the Freedom of Information Act of her daughter’s medical records from a hospital which had admitted negligence in her treatement and paid compensation to the dead woman’s widower. The hospital refused to disclose without consent from the widower, as the dead woman’s next of kin. The Information Commissioner upheld that decision. The mother appealed to the Information Tribunal.
Were the records exempt from disclosure pursuant to s.41 of the FOIA which gives an absolute exemption to disclosure of information which would constitute an actionable breach of confidence?
The hospital owed a continuing duty of confidence to the dead woman which was actionable by her next of kin after her death. The information was therefore exempt from disclosure and the decision of the Information Commissioner was upheld.
The Information Tribunal found the issue to be free of definitive authority. The answer was found in recent ECHR jurisprudence, particularly the decision of Pion v France  ECHR 200 acknowledging the survival of the late President Mitterand’s privacy rights and the the right of his family to bring an action on his behalf after his death.
Media organisations are used to the risk of libel proceedings ceasing on death. The PCC has also held that the dead may not bring complaints under the provisions of its code which proect intrusions into privacy (Tolkein, Report 62 of 2003). If the Court follows the reasoning of the Information Tribunal in this case they may now have to tread much more carefully in publishing personal information concerning the deceased.
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