Public Health Funerals, Heir Hunters and Freedom of Information

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Local authorities are seeing a substantial increase in the number of Freedom of Information (FOI) requests from heir tracing companies for information about those who have had public health funerals. Recent appeal decisions from the Information Commissioner’s Office (ICO) may help to stem the tide.

UK intestacy law states that when someone dies with no will or known family, everything they own passes to the Crown as ownerless property (or ‘Bona Vacantia’). This includes their house, money and personal possessions. Companies who find missing heirs are in a very lucrative business (watch “Heir Hunters” on the BBC). Some require beneficiaries to enter into an agreement to share up to 40% of their inheritance.

In England and Wales, the Bona Vacantia Division (BVD) of the Treasury Solicitor’s Department is responsible for dealing with bona vacantia assets. Everyday BVD publishes an Unclaimed Asset List setting out unclaimed estates which have been recently referred, but not yet administered, and historic cases which have not yet been claimed by entitled relatives. Included in the list is the deceased name, area of death, marital status, place of birth and local authority informant. Sometimes other details will be given (if known) such as spouse’s name, place of marriage and nationality. The list is updated every working day and newly advertised estates appear at the top of the list.

This list is a good starting point for probate researchers but the competition to trace beneficiaries is very fierce and often a number of companies will be trying to trace the same person. That is why such companies often make FOI requests to councils to try and get hold of the information before any of it is passed on to the BVD to publish. If they can identify deceased individuals who may have left a substantial estate, they will have a head start (in tracing the beneficiaries) against their rivals who will not yet be privy to such information.

Many councils have chosen to put a lot of this information on their website; Redbridge, Northampton, Knowsley to name a few. This then allows them to claim the exemption under section 21 of FOI (information is reasonably accessible by other means). Often though the researchers want more than the basic information, which is published by councils.

Of course, where the requested information has been disclosed to the BVD (or is about to be disclosed) and it will appear on the published BVD list, it is open to the council to claim the exemption under section 22 (information intended for future publication). It does not matter that the council will not be publishing the information itself as long as there is a settled intention to publish it on the part of another (in this case the BVD). Section 22 is a qualified exemption and so subject to the public interest test.

Where the information requested by probate researchers is not published, many councils have claimed the exemption in section 31 arguing that disclosure would prejudice the prevention of crime. Some recent ICO appeal decisions lend support to this approach. In a decision involving Barnsley Metropolitan Borough Council (FS50586033) the complainant requested, amongst other things, details of deceased people who had had public health funerals (including names, last known address, date of birth, date of death, date of funeral, and whether the case has been/will be/or even might be referred to the Treasury Solicitor).

The ICO agreed with the council that section 31 applied and it was not in the public interest to disclose the information. Release of personal details of a deceased individual with no known relatives, and no will, may make the assets of that person vulnerable. The assets of the deceased need to be secured and disclosure of the information may lead to the commission of offences (e.g. arson, identity theft etc.) and cause loss to the unsecured estates. In terms of the public interest the Commissioner states (paragraph 38):

“The Commissioner recognises that there is an inherently strong public interest in avoiding likely prejudice to the prevention of crime. The crime in this case would be likely to include a diverse range from anti-social behaviour, criminal damage, arson, organised groups stripping empty properties to identity fraud and the crimes that can be committed using false documents. The Commissioner accepts that tackling issues like these would involve significant public expense and believes it is in the public interest to protect property and to ensure that public resources are used efficiently. He also accepts that there is a strong public interest in avoiding personal distress to the direct victims of the crime and, in the case of crime related to empty properties, to those in the wider neighbourhood who may be affected.”

Similar decisions were made in complaints involving Birmingham City Council (FS50584670) and the London Borough of Bexley FS50583220. I have still not come across a First Tier Tribunal decision on such requests and so the exemptions, especially section 31, have yet to be comprehensively explored.

Some councils have argued that section 41 (Breach of Confidence) may apply to some of the information requested about the deceased. This can only be the case if the information has come from another party and is highly confidential. Section 41 is unlikely to apply to most requests from probate researchers. For a detailed discussion on access to information about the deceased under FOI, read my article and blog post.

Give your career a boost in 2016 by gaining an internationally recognised qualification in FOI. Keep up to date with all the latest FOI decisions by attending our live webinars and FOI workshops.

Monitoring Staff Use of Social Networks: The Human Rights Implications

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According to a recent FOI request made by BBC Radio 5 live, last year there was a rise in the number of UK council staff suspended after being accused of breaking social media rules. Many employers, both in the public and the private sector, now monitor staff use of social media within the office environment. The possibilities are endless but care must be taken not to overstep the legal limits.

All employers have to respect their employees’ right to privacy under Article 8 of the European Convention on Human Rights (ECHR).  This means that any surveillance or monitoring must be carried out in a manner that is in accordance with the law and is necessary and proportionate (see Copland v UK (3rd April 2007 ECHR))

A January 2016 judgment of the European Court of Human Rights show that a careful balancing exercise needs to be undertaken when applying the law (Barbulescu v Romania (application 61496/08). In this case, the employer had asked employees such as the applicant to set up Yahoo! messenger accounts for work purposes. Its policies clearly prohibited the use of such work accounts for personal matters. The employer suspected the applicant of misusing his account, so it monitored his messages for a period during July 2007 without his knowledge.

The employer accused the applicant of using his messenger account for personal purposes; he denied this until he was presented with a 45-page printout of his messages with various people, some of which were of an intimate nature. The employer had also accessed his private messenger account (though it did not make use of the contents).

The applicant was sacked for breach of company policy. When he challenged his dismissal before the courts, his employer relied on the print out of his messages as evidence. He argued that, in accessing and using those personal messages, the employer had breached his right to privacy under Article 8 ECHR.

The Court accepted the applicant’s privacy rights were engaged in this case. However the employer’s monitoring was limited in scope and proportionate. It is reasonable for an employer to verify that employees are completing their professional tasks during working hours. Key considerations were:

  • The emails at the centre of the debate had been sent via a Yahoo Messenger account that was created, at the employer’s request, for the specific purpose of responding to client enquiries.
  • The employee’s personal communications came to light only as a result of the employer accessing communications that were expected to contain only business related materials and had therefore been accessed legitimately.
  • The employer operated a clear internal policy prohibiting employees from using the internet for personal and non-business related reasons.
  • The case highlights the need for companies to have a clear internet and electronic communications policy and the importance of such a policy being communicated to employees.

When monitoring employees, the employer will inevitably be gathering personal data about employees and so consideration also has to be given to the provisions of the Data Protection Act 1998 (DPA). The Information Commissioner’s Office’s (ICO) Employment Practices Code, includes a section on surveillance of employees at work. In December 2014, Caerphilly County Borough Council signed an undertaking after an ICO investigation found that the Council’s surveillance of an employee, suspected of fraudulently claiming to be sick, had breached the DPA.

Compliance with the DPA will also help demonstrate that the surveillance is human rights compliant since protection of individuals’ privacy is a cornerstone of the DPA. Of course the data protection angle will bite harder when the new EU Data Protection Regulation comes into force in 2018. Failure to comply could lead to a fine of up to 20 million Euros or 4% of global annual turnover.

Act Now has a range of workshops relating to surveillance and monitoring both within and outside the workplace. Our products include a RIPA polices and procedures toolkit and e-learning modules.

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