Freedom of Information Request regarding Deceased Individuals

  1. We are aware that researchers have contacted several Local Authorities and NHS trusts (“the Recipients”) with requests for information under the Freedom of Information Act 2000 (“the Act”). The requests appear to be very similar to each other and several Recipients have approached us for our views. We assume that the Recipients accept that they hold the information (which is the subject of the request) within the meaning of section 3(2) of the Act.
  1. The requests ask for details of cases that Recipients might have passed to the Treasury Solicitor. These relate to deaths in the local area in the last year where the deceased is believed to have died intestate and with no known kin. The researcher asks for the deceased’s name, DOB, DOD, last known address and estimation of estate value.
  1. We understand that the purpose of the Recipients’ consultation with us is to ensure a co-ordinated approach is adopted to answering the requests. Legal advice will obviously need to be sought from the Recipients’ own legal advisers as each Recipient must take the final decision regarding how to respond to the request with respect to the information they hold for the purposes of the Act.
  1. If the request had been directed to the Treasury Solicitor’s Department, we would not disclose the information asked for (and we have concerns about the Recipients doing so) at least until the assets of the estates referred to us had been secured. There is a clear risk that the information could be used in such a way as to cause loss to the unsecured assets of estates of the deceased individuals, for example, by fraud or theft. There is also a continuing risk after the estate has been secured, e.g. of identity theft.
  1. By way of explanation, the Recipients should note that when an estate is referred to the Treasury Solicitor, our normal practice is to establish through a series of enquiries: the value of the estate (and that it is not insolvent) and whether it is indeed bona vacantia. For example, we will write to Banks and Building Societies to freeze accounts, ascertain the estate value and make enquires into the location of the title deeds to any property and the existence of a Will. Revealing details of the assets of an estate before such steps had been taken would provide an opportunity for criminal acts to be committed (e.g. theft, fraud). Similarly, there would be concerns about making the last known address of the deceased public, as the property is likely to be unoccupied and might still contain the deceased’s personal papers and effects. The Treasury Solicitor’s Department would therefore consider relying on s31 (1) (a) of the Act on the basis that disclosure of the information would be likely to prejudice the prevention of crime by enabling or encouraging the commission of offences. The Recipients are strongly urged to consider the applicability of this exemption themselves.
  1. The Treasury Solicitor’s Department would also encourage the Recipients to consider whether disclosing the information in question would be likely to prejudice the effective conduct of public affairs under s36(2)(c) of the Act. We are of the view that to disclose information which may lead to the commission of offences and cause loss to unsecured estates may prejudice our statutory function to collect bona vacantia which has vested in the Crown as a result of people dying intestate with no known kin. We also have concerns that the information may be used in such a way as to impede the Treasury Solicitor’s Department’s investigations into estates which are referred to us. We can envisage situations where, for example, the Treasury Solicitor’s Department and genealogists are making parallel enquiries into estates. This may cause confusion as it could give the impression that individuals are acting on our behalf as enquiry agents. Furthermore if, for example, neighbours of the deceased are approached by numerous parties seeking information relating to the deceased, they may become reluctant to divulge information. This would hinder our investigations to establish whether an estate is bona vacantia and would interfere with the operation of our Department.
  1. The Recipients may wish to consider whether the disclosure of the information would or would be likely to prejudice the commercial interests of any person under s43 of the Act. The information is likely to be of commercial value to genealogists and the Recipients will need to decide whether releasing the information could result in an unfair advantage.
  1. The Recipients may wish to consider whether they hold the information (which is the subject of the request) under a duty of confidence owed to the deceased individuals. S41 of the Act may be engaged if the disclosure of the information would constitute an actionable breach of confidence. The Recipients would need to consider whether a) the information has the necessary quality of confidence b) the information was imparted in circumstances importing an obligation of confidence and c) if there has been an unauthorised use or disclosure of the information. The issue here is whether the information held by the Recipients, that the individuals may have died intestate or without known kin which is not in the public domain, may attract the necessary quality and obligation of confidence. The Recipients will need to take their own legal advice on this point. The issue of confidentiality is not simple and it is for Recipients to consider whether the information has the necessary quality of confidence and whether it was obtained in such a way that gives rise to a duty of confidence.
  1. The Recipients may wish to consider whether some of the information sought under the request is accessible to the researcher elsewhere (s21 of the Act) or is intended for future publication by the Treasury Solicitor’s Department (s22) on as we publish estates valued at £5000+ on this website once our initial enquiries have been completed. However, we do not advertise all estates referred to us on our website and so it may not be possible for Recipients to rely solely on these exemptions. For example, an estate with assets totalling less than £5,000 would not be published or where our initial enquiries locate kin.
  1. In our view, giving the values of estates highlights valuable estates, making them more vulnerable to fraud. So, as an anti-fraud measure, we no longer give the estate values in our adverts or generally in response to FOI requests. This is withheld using s31 (1) (a).
  1. We anticipate that now that we no longer give information about the values of estates, local authorities/NHS Trusts may receive requests for information about the value of estates they have referred to the Treasury Solicitor. In that case, Recipients should consider whether the value can be withheld using the s31 (1) (a) exemption.
  1. If Recipients believe that disclosure of information in response to specific FOI requests they have received may impact on the work of this Department, they should consult with us prior to making the disclosure.

July 2009