Section 9(2)(a) OIA did not apply—no meaningful privacy interest in information about an individual deceased for nearly 90 years—information released
A requester asked Capital & Coast District Health Board (the DHB) for information about his great-grandfather, who had died 89 years prior. The DHB withheld the information under section 9(2)(a), and the requester complained to the Ombudsman.
Section 9(2)(a) of the Official Information Act (OIA) provides good reason for withholding (subject to a public interest test), where it is necessary to protect the privacy of natural persons.
The DHB noted that the deceased might have surviving relatives or descendants, and it could not be sure of their wishes regarding disclosure of his health information. It also said that health information can remain sensitive many years after a person’s death, and release may still have an injurious effect on the living.
The Ombudsman considered the Health Information Privacy Code (HIPC), issued under the Privacy Act 1993, which provides guidance on the extent to which health information should be protected in order to safeguard the privacy interests of individuals. The HIPC states that, in respect of the deceased, any privacy interest will be considered to expire 20 years after the individual’s death (see rule 11(6)).
The Ombudsman took this as ‘a clear indication that the privacy interests of deceased people in their health information are, in general, extinguished 20 years after their death’. While a 20-year cut-off might seem arbitrary, the inference is that this length of time is ample to allow for the dissipation of any meaningful privacy interest.
The Ombudsman found that ‘an individual’s privacy interest in their health information is long-extinguished 89 years after their death, regardless of how sensitive that information is’. Where a person’s health files disclose their feelings about a third party, then that third party’s privacy interests may be affected by release, but this seemed unlikely to be a relevant consideration so many years after the information was created and when all the relevant people could safely be assumed to be deceased.
The Ombudsman acknowledged the possibility that relatives may still be hurt by release of such information many years after a person’s death, but said the OIA did not guard against a speculative harm of this nature. He concluded that there was no meaningful privacy interest in the information at issue, and the DHB should not have refused the request. The DHB agreed to release the information and the complaint was resolved.
This case note is published under the authority of the Ombudsmen Rules 1989 opens page in this tab. It sets out an Ombudsman’s view on the facts of a particular case. It should not be taken as establishing any legal precedent that would bind an Ombudsman in future.