In an important judgment the FTT (Information Rights) has held that the Ministry of Defence is not entitled to rely on the s.41 FOIA exemption to refuse to disclose medical and health related information to the family of members of deceased members of the UK armed forces.
The appellant, Jane O’Connor, requested disclosure under FOIA of blood test and other medical records held by MoD relating to her deceased father, Squadron Leader Terry Gledhill.
Terry had served as an RAF pilot whose duties included flying, without protection, into the nuclear mushroom cloud created by the UK’s first nuclear bomb tests (Operation Grapple) to collect readings recording the level of radiation created by the nuclear blast.
MoD subsequently conducted medical tests on Terry and the other servicemen who worked on the Operation Grapple nuclear test programme, but the results of the tests were not disclosed or shared with the men.
Many family members of member of the UK armed forces who were involved in the UK nuclear test programme have experienced difficulty in obtaining health records relating to their, now often deceased, parents, with MoD variously denying that records are held or deploying a range of legal arguments to resist disclosure.
Jane requested disclosure of the records of blood and other tests performed by MoD on Terry in the months and years following Operation Grapple.
The MoD refused to provide the medical records, arguing that it was entitled to refuse to do so under s. 41 FOIA because disclosing the medical records in circumstances would amount to an ‘actionable breach of confidence’.
In essence, MoD argued that notwithstanding that disclosure was being requested by Terry’s child, and executor, it was entitled to refuse to disclose the documents on the basis that doing so would expose it to a legal claim in breach of confidence.
Jane appealed, arguing that: (i) the MoD’s interpretation of s. 41 FOIA was incorrect, because the s. 41 exemption could not be relied on when the children of a deceased person, who were also the executors of their parent’s estate expressly consented to and waived any claim in respect of the requested disclosure, and (ii) in any event, in the circumstances the public interest favoured disclosure of the information, such that MoD would have a public interest defence to any theoretical claim of breach of confidence.
In an important judgment, the FTT (Judge Buckley) has upheld Jane’s appeal.
The FTT’s judgment provides important guidance on the scope of application of s. 41 FOIA in relation to confidential information relating to deceased persons.
Subject to any appeal by MoD, the judgment also provides a potential route by which the children of deceased members of the UK armed forces who served on Operation Grapple or the UK’s Nuclear Testing programme more broadly may now be able to access the medical and health information relating to their parent that is held by the MoD.
Joseph Barrett of 11KBW appeared successfully as sole counsel for the Appellant, Ms O’Connor.
A copy of the judgment can be found here.
Press coverage on the litigation can be seen here.
