Privacy and the dead

The latest iappANZ Member Bulletin, edited by Nicole Stephensen, includes an article by me on that lively topic. I was prompted to have a look at the issue in Australia by "Keeping the secrets of the dead" in Legal Studies 2010 (The Society of Legal Scholars, Blackwell Publishing, no link available) by Mary Donnelly and Maeve McDonagh of University College Cork in which they examine the situation in England and Wales. Maeve is well known here as a result of a couple of university stints, and the article includes some Australian references.

The Australian Law Reform Commission detailed how our privacy laws are a mess in this and other areas, but the Federal Government rejected recommendations, citing constitutional issues, that would have been a start to applying appropriate statutory principles to the handling of information about a deceased person. As at least part of the constituency (the living are also affected) is rarely heard, few appear to be lamenting the absence of discussion and debate, or the missed opportunity to act. While no set of laws can cover every eventuality in such a complex area, there is a case for uniform and consistent principles in Federal and state laws regarding the handling of information about a deceased individual whether held by public or private sector bodies. The article shows we are a long way from this point. With the Federal Government ducking, despite suggestions from the ALRC on how to address the constitutional issue if one exists, the mess is unlikely to be attended any time soon.The text of the article (around 1500 words) follows.

Privacy and the dead

Perhaps for obvious reasons we don’t hear much about the privacy interests of the dead. Privacy law is a mixed bag when it comes to statutory rules for handling the personal information of a deceased individual. Freedom of information laws also give rise to uncertainties regarding the rights of the living to access information about persons dead for up to 30 years.

When presented with the opportunity to start to address this question on a principled basis and to encourage national uniformity in the law, the Commonwealth Government ducked. Constitutional difficulties were cited for not proceeding with amendments to the Privacy Act to extend relevant principles to the handling of personal information about a dead person. No one seems to have noticed much. Or lamented the passing.

The case for reform

The Commonwealth Privacy Act defines personal information as information about a living individual, except Part VIA which provides a separate regime for the collection, use and disclosure of personal information in the event of a declared emergency, including information about a dead person.

The Government in announcing the phase one response to the Australian Law Reform Commission report rejected three recommendations proposing extension of the law to personal information of an individual dead for up to 30 years.

ALRC 108, For Your Information, acknowledged that a deceased individual may ‘feel no shame or humiliation’, but argued public policy reasons in proposing a new part of the act to regulate the use and disclosure of the personal information of a deceased person, with principles to apply to access by third parties, data quality, and data security.

The report said protection provided by the Privacy Act was analogous to the protection provided by legal duties of confidentiality. Unlike the right to sue for defamation, such rights should survive death, although the lapse of time and overriding other considerations would apply in certain circumstances.

The Commission argued that the statutory protections recommended would ensure that living individuals would be confident in providing personal information, including sensitive information, in the knowledge that it will not be disclosed in inappropriate circumstances after they die; that living relatives and others would be protected from distress caused by the inappropriate handling of a deceased individual’s personal information; and that family members and others would have clearer rights of access to such information where this was reasonable in the circumstances.

Constitutional issues

The Government response acknowledged there were arguments for and against the proposals but cited “significant constitutional limitations” on Commonwealth power to legislate as the reason for rejecting the recommendations.

The Privacy Act was passed on the basis of the Parliament’s power to make laws with respect to external affairs. The Preamble states the legislation was intended to implement Australia’s obligations relating to privacy under the International Covenant on Civil and Political Rights as well as the OECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Data.

While these instruments do not expressly apply to deceased individuals, the ALRC said it was arguable that the provisions recommended would fall within the rights protected by Article 17 of the ICCPR, that such rights, as matters of international concern, came within the external affairs power, or that they relate to the rights of living individuals or are incidental to those rights. To avoid uncertainty the Commission however suggested it would be preferable to seek a referral of power from the states.

Patchwork privacy laws

With the Commonwealth deciding to drop the ball straight away, the issue of privacy and the dead seems out of contention as part of planned future attempts to pursue uniform national privacy principles.

Information about the dead will continue to subject to the existing laws, or subject to none at all. Such information is outside the scope of the Privacy Act that applies to Commonwealth agencies and big business; covered by some but not all state privacy laws that in the main apply to state government agencies; and in the hands of agencies at all levels of government, but not the private sector, subject to freedom of information laws.

Although the Privacy Act does not apply, the Privacy Commissioner’s plain English guidance to government agencies is “to respect the sensitivities of family members when using or disclosing information about deceased individuals.”

Despite the gap in the law, agencies for the most part appear to act appropriately. Centrelink and Veterans Affairs are no doubt highly experienced in this area and incidents like leaving a computer disc in the Qantas lounge containing details of how the body of Australia's first soldier killed in Iraq was misplaced are, fortunately, rare.

The Commissioner does not offer published guidance to private sector bodies. Those not covered by the act or who enjoy exemptions such as media organisations engaged in journalism can in effect write their own rules, although banks, insurance companies and others who deal with these issues routinely seem to have well developed protocols.

At the state level, NSW privacy and Victorian health privacy legislation covers information about individuals who have been dead for not more than 30 years. The Northern Territory Information Act, which combines privacy, freedom of information and archives provisions, covers personal information within the first five years after an individual dies. Tasmanian privacy legislation extends protection to the personal information of individuals who have been dead for not more than 25 years. ACT health privacy legislation covers deceased individuals without imposing any time restrictions. Queensland’s Information Privacy Act and the South Australian Information Privacy Principles only apply to information of a living person. South Australia and Western Australia are yet to enact privacy legislation.

FOI issues

Beyond privacy laws, the Commonwealth FOI Act and the state equivalents provide avenues for third parties to apply for access to information about a deceased individual held by a government agency. A decision on disclosure usually involves consideration of whether release of personal information would be unreasonable, or on balance, in the public interest.

Even a spouse seeking access may still need a convincing case. The Queensland Information Commissioner decided that disclosure to the wife of a deceased husband of some but not all medical records (those that would assist her to brief a specialist to give an opinion about the cancer suffered by him) would, on balance, be in the public interest, as it would assist her to pursue legal proceedings in respect of loss consequent upon her husband's death, or to evaluate whether a legal proceeding was available, or worth pursuing.

FOI laws require an agency to take practicable steps to consult the deceased’s personal legal representative, next of kin or another family member prior to disclosure of personal information, and to give weight to any opinion expressed by the third party in reaching a decision.

The words “closest living relative” mean "nearest of kin" or "nearest in blood relation". See, Antill-Pockley v Perpetual Trustee Co Ltd [1974] HCA 52 per Gibbs J (at [6]).

Where siblings differed concerning access to information about their deceased mother the Western Australian Information Commissioner decided the eldest qualified as the closest living relative.

Where parents are separated and in the absence of court orders relating to parental responsibility or statutory prescription, both parents may qualify as the closest living relative of a deceased child.

On occasion, complex and opposing interests must be considered.

The NSW Administrative Decisions Tribunal decided important public interests justified disclosure to the mother of a deceased child, information (with identifying particulars deleted) held by the Police in statements about the child's death provided for coronial proceedings that never proceeded. The decision to grant access was despite the objections of the three people who made statements, including the father/ex husband who was looking after the child when she died, and arguments from the Police that the statements had been obtained on the basis of confidentiality.

Early FOI legislation stipulates that the interest or motive of the applicant in seeking access is generally an irrelevant consideration and not to be taken into account in reaching a decision to grant access. The Commonwealth act operates on the basis that disclosure to an applicant is disclosure to the world.

Recent reforms in some jurisdictions recognise any special interest in access that an applicant may be able to demonstrate. The NSW Government Information (Public Access) Act 2009 (section 55) allows the applicant’s identity and relationship with any other person, motives for making the access application, or any other factors particular to the applicant, to the extent known to the decision maker, to be taken into account in reaching a decision.

While welcome, such a change is a long way short of what is needed. No set of laws can cover every eventuality in such a complex area but there is a case for uniform and consistent principles regarding the handling of information about a deceased individual, whether held by public or private sector bodies.

And a ghost may be heard...

The ALRC recommendations proposed a step in the right direction. It’s a pity that the opportunity has passed without fanfare or fuss… unless distant voices are heard by the Senate Finance and Public Administration Committee which will be looking at proposed privacy reform legislation well into 2011.

Peter Timmins is a Sydney based lawyer and consultant who writes the Open and Shut blog - www.foi-privacy.blogspot.com