Public Health Funerals, Heir Hunters and Freedom of Information

 

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.

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FOI Requests From Heir Hunters

The poor quality of the British daytime television schedule means that one who is off sick or “working” from home, often has a choice between BBC Parliament, School for Stars and Heir Hunters. (Yes dear reader, I have done our research!) The latter is a BBC programme focusing on attempts by Probate researchers to find missing or unknown heirs, entitled to deceased persons’ estates.

In the 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. Thus finding missing heirs is quite a lucrative business as some of these companies require beneficiaries to enter into an agreement to share up to 40% of the inheritance.

What the BBC programme does not tell the viewer is that Probate researchers (also known as heir searchers and forensic genealogists) often use the Freedom of Information Act 2000 (FOI) to request information to help them trace missing beneficiaries. Over the last few years many councils have seen a substantial increase in the number of these requests. These relate to deaths in the local area where the deceased is believed to have died intestate and with no known next of kin. Councils may have this information because the deceased was in the care of the council or had a public health funeral. The researchers often asks for the deceased’s name, date of birth, date of death, last known address and the estimated value of the estate.

How to deal with such requests? It may be that the requested information has already been passed on to the Government as required by law. In England and Wales, the Bona Vacantia Division (BVD) of the Treasury Solicitor’s Department is responsible for dealing with bona vacantia assetsexcept in the Duchy of Lancaster or the Duchy of Cornwall. 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, date, marital status, place of birth and local authority informant. Sometimes other details will be given (if known) such as spouses 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 often and they will rely on FOI requests to councils to try and fill in the blanks and trace missing relatives before their rivals. Many councils have chosen to put a lot of the information on their website; Redbridge, Northampton, Knowsley to name a few. This then allows them to claim the exemption under section 21 of FOI i.e. that the information is reasonably accessible by other means. Often though the researchers want more than the basic information, which is published by the councils online (see later).

Of course where the requested information has been passed on to the BVD (or is about to be passed on) 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.

Section can only be claimed if the precise information, which is the subject of the FOI request, is going to be published by BVD. In a Commissioner decision from 2007 involving the Rent Service (TRS), the complainant requested to be advised as to the then current figures for local reference rents in a specified area in the UK. TRS declined to release the information relying on section 22 stating that the figures would be contained in an annual valuation report to be published at a later date and that the public interest in maintaining the exemption outweighed the public interest in disclosing the information. The Commissioner found that section 22 did not apply as the figures requested would not be published in the valuation report.

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. Indeed BVD have themselves claimed this exemption to withhold the value of the estates they have processed arguing that “disclosure of the exempt information could help enable the commission of fraud”. It is difficult to understand how disclosing the value of a person’s estate would directly lead to a criminal offence being committed. Surely more than a general statement is required in the refusal notice? The Information Commissioner’s Guidance on section 31 states:

“The public authority must be able to demonstrate a causal link between the disclosure and the harm claimed.”

However a 2012 decision of the Information Commissioner seems to lend support for use of section 31 in such cases. The complainant requested details of people for whom Westminster City Council had arranged “paupers” funerals in the last ten years. The Commissioner agreed with the council that section 31 applied and it was not in the public interest to disclose the information.

The Council argued the release of personal details of a deceased individual with no known relatives, and no will, may make the assets of that person vulnerable. It explained that 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. The Commissioner also placed weight on the fact that Westminster is one of the London boroughs with the most reported identity fraud cases.

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.

I have not come across a First Tier Tribunal decision on “Heir Hunter requests” and so the exemptions, especially section 31, have yet to be comprehensively explored. For now, it seems that councils can use the range of exceptions discussed above to reduce the burden of FOI requests from probate researchers. Some information should of course be provided to satisfy the nation’s appetite for “quality day time television!”

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What is “information” under FOI?

Section 1 of the Freedom of Information 2000 (FOI) contains the general right of access to information held by public authorities. But what exactly is “information”? Section 84 defines information as “information recorded in any form.” This includes information held on paper, computer, video, audiotapes as well as that contained in manuscript notes. FOI does not give access to information that is known to the public authority but is not available in some recorded form (see Ingle v Information Commissioner (EA/2007/0023) ).

Mere marks made on documents are also information according to an Information Tribunal decision from 2009 (O Connell v the Information Commissioner and Crown Prosecution Service (EA/2009/0010)). Here the Tribunal considered access to manuscript notes made by a defence barrister, during a criminal trial, on his client’s typed police interview record. The Information Commissioner’s view was that some of the notes, which consisted of asterisks and underlining of words on a document, were not information for the purposes of FOI.

The Tribunal rejected this submission. In its view, however tenuous and potentially misleading the material sought may be, it still constituted information; even if it was only information to the effect that certain marks had been made on certain sheets of paper held by the public authority. The Tribunal did however rule that the requested information was sensitive personal data, disclosure of which would breach the Data Protection Principles. Consequently it was exempt under section 40(2) being third party personal data.

It is an oft-repeated phrase that FOI provides a right of access to information rather than documents. However, a request for a copy of a document will generally be a valid request for all of the information contained within that document (including visual format, design, layout etc). In considering whether the public authority has complied with the request, the question is whether all of the information recorded in the document has been provided. It will not be sufficient to rephrase the document or provide an outline or summary of its contents unless the applicant has specifically expressed a preference for a digest or summary under section 11(1)(c).

In April 2013 the First Tier Tribunal (Information Rights), ruled that images of MPs’ expense claim receipts was information to which the FOI applied (IPSA v Information Commissioner (EA/2012/0242)). The background to the request was that, following the MPs’ expenses scandal, the then newly-formed Independent Parliamentary Standards Authority (IPSA), decided that it would not routinely publish images of the receipts submitted to IPSA by MPs in support of their expenses claims.  Only text transcribed from the submitted receipts would be published.

A journalist made an FOI request for the actual receipts submitted by a number of MPs. The question arose as to whether images of those receipts held by IPSA contained “information” within the meaning of section 1 of FOI, which was not captured by the transcription process favoured by IPSA. The Tribunal concluded that the definition of information (in this case) included logos, letterheads, handwriting, manuscript comments, and even the layout and style of the requested documents. These were not disclosed to the requestor as a result of providing a transcription, rather than a copy, of the relevant receipts.

The Upper Tribunal’s appeal decision in this case, has now put the matter beyond doubt. In Independent Parliamentary Standards Authority v IC & Leapman [2014] UKUT 33 (AAC) Judge Williams dismissed the appeal by IPSA. At Paragraph 22 of the judgement he said:

“It is to me also trite to note that the wording on a typical receipt or invoice is only part of what a recipient sees when looking at it. Typically there will be verbal and numerical content to be read and understood, but there will also be visual content to be seen, rather than read, but which may also require to be understood for the recipient to have appreciated the whole of the experience, if I may term it that, communicated by the receipt or invoice.”

In the judge’s view information is more than just the words and figures on a piece of paper. Sometimes the nature of the request will mean that the only way to convey all the information on a document is to disclose the original or at least a copy. He gave the example of Land Registry plans, drawings and photographic evidence of a particular building.

In coming to his decision the judge took note of the Scottish Court of Session decision in Glasgow CC v SIC [2009] CSIH 73 under the Freedom of Information (Scotland) Act 2002 (FOISA). As a general point of principle, the Commissioner and the Tribunal is not bound by Court of Session decisions on FOISA, although they may be considered persuasive where the terms of FOISA mirror the terms of FOI. In the Scottish case the applicant specifically wanted the public authority to provide copies of the documents, although he acknowledged that the same information was available elsewhere. The Court confirmed that FOISA entitles requesters to the information within a document, rather than a copy of the document itself. To the extent that this request was specifically for copies of the documents over and above the information they contained, it was invalid. The Court rejected an argument that the copy documents were “information” distinct from the information contained within them.

The Court stated at paragraph 45 of the judgment:

“Where the request does not describe the information requested… but refers to a document which may contain the relevant information, it may nonetheless be reasonably clear in the circumstances that it is the information recorded in the document that is relevant.”

However paragraph 48 should be noted:

“The difference between the original and a copy… does not consist in any difference between the information recorded in each document: that information, if the copy is true and accurate, will be identical.” (my emphasis)

In the IPSA case, the judge ruled that transcriptions of the requested receipts would not be “true and accurate”, as they would not contain all the same information as on the originals e.g. logos, style, layout etc.

If you want to know more on the Scottish case, read the briefing note published by the Scottish Information Commissioner. The basic principles (and these apply equally to FOI requests) are:

• The Freedom of Information (Scotland) Act 2002 (FOISA) provides a right of access to information and not a right of access to copies of specific documents.
• Authorities should not automatically refuse requests for copies of documents, as long as it is reasonably clear from the request that it is the information recorded in the document that the applicant wants.
• Requesting a document (e.g. a report, a minute or a contract) is a commonplace way to describe information. Where it is reasonably clear that a request is for the information contained in a document, the authority should respond to the request as one properly made under FOISA.
• If a request is for a document, but it is not reasonably clear what information is being requested, the authority should contact the applicant to seek clarification.

These are interesting decisions especially for those public authorities who often insist, when refusing to supply actual documents (such as minutes of meetings) that FOI is about access to information not documents. Sometimes the requestor is interested in the document, which contains the requested information, as it will give a further insight into its background and the thoughts/observations of the producers/subjects of the document.

Finally to quote one of our FOI trainers (Philip Bradshaw):

“Much will also in practice depend on the wording of the request. Contrast “How much did you spend on pencils?” with “Can I have a copy of your pencil invoices”. You can clearly provide in permanent form all the recorded information within scope of the first request without copies, but not perhaps for the second.”

Ibrahim Hasan will be discussing this and other recent FOI decisions in the FOI Update workshops which are delivered in online sessions as well as face to face.

Freedom of Information Caselaw Roundup

The Freedom of Information Act 2000 (FOI) applies to information held by a public authority or held on its behalf by another person (Section 3(2)). What of information about people working for a public authority but who are legally employed by a third party?

This question arose recently in an appeal to the First Tier Tribunal (Information Rights) (FTT). In Hackett v Information Commissioner (EA/2012/0265), the  (ULT), an education charity running 21 Academy schools, was asked for, amongst other things, details of senior staff members’ pay, pension contributions, other remuneration and expenses.  The request was refused on the basis that the information was not held by ULT, but by the United Church School Trust (UCST) who employed the staff and who, as a non-publicly funded charity, is not subject to FOI.

The appellant argued that the corporate structure of ULT and UCST was an accounting process set up to avoid disclosure of the requested information which was about the spending of public money. In addition he submitted that both companies were subsidiaries of the United Church Schools Company and as such were, in effect, both part of one company.

The FTT upheld the decision of the Information Commissioner that the information was not held by ULT, but by UCST, and so not subject to FOI.  It took account of the fact that the corporate structure had been urged on ULT by the Department for Education, the two charities had maintained a complete corporate separation and that the service agreement between ULT and UCST expressly referred to the senior staff being employed by UCST. Could this decision mean that more public bodies will adopt innovative structures to avoid public scrutiny of their finances?

The section 40 exemption applies to personal data disclosure of which would breach one of the Data Protection Principles. This usually involves considering whether disclosure would be fair and lawful under Principle 1. Not all personal data will be exempt from disclosure. Sometimes there is a legitimate interest in the public knowing some personal data.

In Innes v Information Commissioner (EA/2013/0044) the FTT ruled that the reasons for a head teacher’s long-term sickness absence from his school did not have to be disclosed as they constituted personal data, but whether the head teacher was being paid a salary during his absence should be disclosed. As head teacher, the individual in question occupied a senior position of responsibility at the school. He was no longer performing an active function at the school and whether or not he was being paid from public funds during the period of absence and inactivity is a legitimate matter of public interest and one which outweighs his right to privacy.

Personal Data under section 40 has the same meaning as in Section 1 of the Data Protection Act i.e. it has to be information, which relates to a living identifiable individual. The requested information does not always have to include a name. Even job title information can be personal data according to the FTT decision in London Borough of Barnet v Information Commissioner and another (EA/2012/0261). Here the requestor wanted the job titles of council employees who had attended a meeting at a solicitor’s firm in respect of a major council outsourcing project. Referring to a Supreme Court decision (South Lanarkshire Council v The Scottish Information Commissioner [2013] UKSC 55), the FTT ruled that disclosing details of a job title held by more than one local authority official could constitute processing personal data if there was a chance of those individuals being identified. The test was whether the subjects could be identified, not just by an ordinary member of the public but, by a “motivated intruder” (including the requestor himself with all the other information at his disposal).

Continuing on the same theme, in Yiannis Voyias v Information Commissioner (EA/2013/0003), the FTT held that the London Borough of Camden was correct to refuse to disclose the number of hours its employees worked and how much overtime they were paid. It was satisfied that disclosure of this information would lead to the identification of individuals and would be unfair. Therefore section 40 applied.

Personal data in Building Regulations applications held by councils is not exempt under section 40 just because it relates to another person’s property. In James Henderson v IC EA/2013/0055), the appellant’s neighbour was carrying out renovations on the other side of their shared wall. This resulted in cracks on his side of the wall, followed by a steel beam coming through the wall. He asked Brentwood Council for details of the works, as a Building Control application had been made to them.

The FTT held that full details of a Building Regulations application was personal data; but disclosing this information would not contravene the First Data Protection Principle. Therefore, the exemption set out in section 40(2) did not apply and the information was ordered to be disclosed. The FTT disagreed with the Commissioner, who held that the data subject would have had a reasonable expectation of privacy in relation to the information. In doing so the FTT took account of the fact that (a) before starting any work the data subject was obliged to make a formal application to the local authority which meant that the property and the work would be subject to inspections by their officers, (b) the property was to be rented out rather than lived in by him; and (c) the work had a direct effect on his neighbour’s property.

The Freedom of Information (Scotland) Act 2002 has a specific exemption to cover a deceased person’s health record. There is no such exemption in the 2000 Act. Sometimes the section 41 exemption (Breach of Confidence) can be claimed.

Two recent Tribunal decisions again emphasise the importance of checking whether the requestor is the deceased’s appointed personal representative. In Webber v IC and Nottinghamshire Healthcare NHS Trust (GIA/4090/2012), the appellant had made an FOI request for information (including hospital records) about the death of her son in 1999. The Commissioner and the FTT upheld the decision to refuse on section 41 grounds. The Upper Tribunal also dismissed the appeal. It ruled that disclosure would entail a Breach of Confidence which was actionable after the patient’s death. The appellant was not the personal representative of the deceased even though she could have applied to become so.

The Upper Tribunal also found that there would not have been a public interest defence to the Breach of Confidence. It gave weight to the fact that some of the information sought would or could come into the public domain or be obtained in another way: a coroners’ inquest, or through an application under the Access to Health Records Act 1990. This allows for requests for access to information to be made by, amongst others, the patients’ personal representative.

When considering disclosure of a deceased person’s information, consideration has to be given to any wishes expressed by the deceased before their death. In Trott and Skinner v Information Commissioner (EA/2012/0195) (March 2013) the appellants requested information relating to the care records of their deceased sister. East Sussex County Council confirmed that it held a relevant care file but refused to disclose it on the basis that it was provided in confidence. The FTT and the Commissioner were satisfied that the section 41 exemption was engaged. The requested information was confidential, disclosure of which would be a Breach of Confidence. Amongst other things it took account of the fact that the deceased was given the opportunity to indicate (in her home care agreement) that she agreed to let the Council “share personal information on care with family members/friends listed below.” She did not sign her agreement or list anybody in the space provided. The Tribunal also heard that on several occasions she was given specific assurances that her information would be kept confidential.

Furthermore the FTT was satisfied that the Breach of Confidence would be actionable. This was despite the fact that the sisters were the next of kin of the deceased. They were not the personal representatives of the deceased though. Neither the council nor the Commissioner had enquired as to who was. On further inquiry by the Tribunal, it was discovered that there was a will and therefore an Executor who has standing to act as the deceased’s personal representative. There was no evidence of consent for disclosure under FOI from this Executor. Therefore section 41 was engaged and there was no public interest defence to the disclosure.

Give your career a boost in 2014 by gaining an internationally recognised qualification in FOI. Keep up to date with all the latest FOI decisions in 2014 by attending our FOI Update workshops.