Details of the Request
Thank you for your reply to my Freedom of Information request [FOI 4512]. Given that the Trust has chosen to engage exemptions (as defined by the Freedom of Information Act) I am assuming that Trust holds relevant information within the outlined time frame (if I am wrong about that then please correct me). You have chosen to engage the section 21 and 41 exemptions. I would like to request a review of this decision for a number of reasons. In the first instance we need to decipher precisely what information is covered by section 21 (information reasonably accessible by other means) and section 41 (information passed in confidence). This is because the section 21 exemption cannot be applied to the same information at the same time as any other FOI part II exemption, as this would present a contradiction. You cannot for example claim that information is both ‘reasonably accessible’ and ‘held in confidence’ at the same time, as the same information cannot be simultaneously classed as ‘confidential’ and ‘accessible’. There is a very well defined principle that if information is publicly accessible in some way, then it will not carry the necessary quality of confidence needed to engage section 21.
You have claimed that the information is ‘reasonably accessible’ to me via two sources, the first of which being the Government Legal Departments (GLD) Bona Vacantia list. I am willing to be reasonable and accept that any information which is currently published there would probably be covered by section 21 of the freedom of information act (although not section 41). If all of the relevant data is already published there then please let me know and I will go and look it up (and that can conclude this review) if however there are still cases pending publication, then these are not currently accessible by other means and would not engage the section 21 exemption. Arguably there might be a case for a section 22 exemption to cover these instances, however this would be subject to a public interest test and given that there is no guarantee that a case which has been referred to the GLD will actually be published it is debatable whether the criteria of the exemption have been met. However as the Trust has not engaged the section 22 exemption in this instance, I shall speculate no further.
You have also claimed that the information is available on death certificates, and you are quite right that these are regarded as public documents, and they would provide the deceased’s name, dates of birth/death, last known address, and place of death (i.e. in your Trust) amongst other things. However I would not define this information as ‘reasonably accessible’ to me, or at least not with regard to any information which is pending publication on the Bona Vacantia list, as without having at the very least a name and a date of death in the first instance, you cannot order a death certificate. It is true I could use information already published on the Bona Vacantia list to order some death certificates, but as I outlined above I accept this information is already ‘reasonably accessible’ to me and do not require its disclosure.
This then brings me onto the section 41 exemption, and given that it cannot be applied to any information covered by section 21 I can only think that it would apply to any bona vacantia cases pending publication (either ones which the Trust plans to refer to the GLD or has already referred but have not appeared on the GLD list yet). While (as outlined above) information which is already publicly available cannot engage the section 41 exemption, there is a question mark as to whether information which is likely to be published in the near future would be caught by section 41. You have already yourself admitted that much of the information is already published on death certificates, and given that most of what I have asked for will likely appear on the public bona Vacantia list in due course so I seems unlikely to me it would carry the necessary quality of confidence (I don’t really see the need).
Just to be sure I recently lodged an enquiry with the ICO. They stated that while information about deceased persons would usually be covered by an exemption, they said it may not be a section 41 if the information is likely to be published in the future (they said a public body may wish to rely on a section 22 although this would have to be taken on a case by case basis and would be subject to a public interest test).
On this basis I would like to request an appeal for my request
Details of the Response
You asked the Trust to review its response to FOI 4512 dated 23rd December 2015 in which the Trust engaged section 41 of the Freedom of Information Act to withhold information which was given to the Trust in confidence.
The withheld information related to deceased patients whom the Trust had referred to the Government Legal Department’s Bona Vacantia Division – specifically their name, last known address, date of birth, date of death, date of funeral and date of referral. The Trust recognises that the patients provided their name, last known address, date of birth (and any other personal details) under a common law duty of confidence which applies to all its patients and is accepted to continue after death.
However, upon review, and with reference to the ICO decision notice reference FS50584671, the Trust accepts that the patients’ date of death, date of funeral, and date of referral may not be covered under section 41 of the FOIA as these details could not have been provided by the patient and therefore only partially engages the section 41 exemption.
In order for us to release the deceased patients’ date of death, date of funeral, and date of referral, please confirm the timeframe that you require.