Access to a deceased person’s records
If you wish to access information about a deceased person who has been under the care of the Council, please put your request in writing. It will be processed under the Freedom of Information Act 2000; Data Protection legislation only applies to living individuals. This does not mean that there is an automatic right of access to the deceased's personal information as some exemptions may be applied.
Consideration of requests about the deceased
The main elements that will be considered when dealing with requests for information about the deceased are as follows:
- Is the information requested already publicly available?
- Is the requester the personal representative (the person who is entitled to administer the estate of the deceased person under the law relating to wills and probate? This will be by virtue of either a grant of probate (if the deceased person left a will) or letter of administration (if they died intestate; ie. died without having made a will) of the deceased.
- Is the information requested special category (as defined by the GDPR)?
- Was the information being requested originally provided in confidence?
- Does the information requested contain personal data relating to any third parties (such as carers, relatives, social care staff or social workers and healthcare staff)?
Circumstances under which records may be released
We will only release the records of deceased individuals in the following circumstances:
- The request has been made by the deceased person's 'personal representative' (also known as the executor or administrator of their estate)
- The request has been made by an individual who held a Health & Welfare Lasting Power of Attorney for the deceased person when they were alive
- The request has been made by an individual who held a Financial Affairs Lasting Power of Attorney for the deceased person when they were alive (although they would only be entitled to information about paying their bills, collecting their benefits, or selling their home)
- The request has been made by an individual who was a Personal Welfare Deputy for the deceased person when they were alive, providing the request does not go against any decision made by an attorney acting under a Lasting Power of Attorney
- The request has been made by an individual who has proof that they have a claim arising from the deceased individual's death
- The information requested is already known to be in the public domain; we will attempt to signpost the requester to the information where possible
- There is sufficient evidence to support the assumption that the deceased individual would have given their consent to the release of their personal information if they were still alive
Some or all of the following FOIA exemptions may be applicable.
Section 21 FOIA Information accessible to the applicant by other means
If the personal information requested is already in the public domain, for example, where an open session at a court or inquest has been held, this would not need to be disclosed under the FOIA. Although there is a presumption that the majority of personal information in social care records is confidential, some may already have been made public, for example the cause of death is included on the death certificate which is a public document.
Section 40 FOIA Personal Information
The deceased's personal information may contain the personal information of another person(s), known as a "third party". As stated above a third party may include carers, relatives, social care staff or social workers and healthcare staff. If the deceased's records do contain another's personal information the exemption in section 40 could be applied.
Section 41 FOIA Information provided in confidence
In most cases the personal information being requested will relate to sensitive personal information about the deceased, especially where it is contained within a social care or health record. In accordance with guidance from the Information Commissioner's Office and case decisions from the First-Tier Information Rights Tribunal, due to the very personal and sensitive nature of these records, it is likely that they continue to be subject to a duty of confidence after the individual's death.
It is generally assumed that this personal information would have been provided in confidence and as such, the exemption within section 41 may apply. We must show that it did not create the information and that it had been obtained from another person. This will usually be met for social care records as these are concerned with the welfare and care of an individual. It is very likely that the information will have been obtained from the individual themselves, or the professionals involved in their care.
If we believe that disclosure of the deceased's personal information would be likely to give rise to an actionable breach of confidence then the exemption can be applied. The Information Commissioner's Office has case precedent that establishes that the duty of confidence continues after death and that this can be transferred to the personal representative. Whether a personal representative exists or is known to the Council, is irrelevant, what is important is the ability to establish in principle that a personal representative might exist who could take legal action against any breach of confidence.
Medical or Health Records will only be available through the Access to Health Records Act 1990 and you will be required to contact the deceased's GP or the relevant health professionals involved in the deceased's care.
Section 115 of the Crime and Disorder Act 1998 permits data to be disclosed to the Police, Probation Service, Health and Local Authorities, for the purpose of reducing and preventing crime and disorder.
The common law Duty of Confidence means that the Council owes a duty of confidence to service users and others from whom it obtains personal information for the discharge of its statutory functions.
How to Access the data
To help us find and retrieve information for you, please state exactly what information you require, and provide the following details of the deceased:
- date of birth
- date of death
- last known address of deceased
This information is necessary to help us confirm if we hold records relating to the deceased and locate them for you.
Before we are able to release records about a deceased person, we will need confirmation that the individual is in fact deceased, such as
- grant of probate
- death certificate.
Proof of entitlement – one of the following
- Grant of probate and certified copy of the last will & testament or
- Letters of administration – if the deceased died intestate (died without having made a will).
We need to identify that you are the personal representative of the deceased person, and that you are entitled to information about them.
Please supply us with one form of identification for yourself, showing your name and current address. Acceptable examples of identification are:
- drivers licence
- bank statement
- utility bill
If you have any queries in relation to this, please contact firstname.lastname@example.org for advice.