Generally the Privacy Act doesn’t apply to deceased people. This is because the Privacy Act protects the rights of “individuals”, and section 2 of the Act defines an individual as a “natural person, other than a deceased person”.

In order for our Office to accept a complaint, it needs to come from the affected individual. The dead cannot complain and we cannot accept a complaint on behalf of a deceased relative or partner.

There are variations to that general rule. In some circumstances, if you are the executor or administrator of the estate, you have the right to request your relative’s medical notes as their representative. We deal with a few complaints from surviving relatives who are seeking access to the medical information of a deceased relative or partner.

There are also other laws such as the Official Information Act (for public sector agencies), the Coroners Act, the Births, Deaths, Marriages and Relationships Registration Act, and rule 11 of the Health Information Privacy Code (HIPC) also allow the disclosure of information about deceased people.

Mixed information

But sometimes it will be inappropriate to release the personal information of the dead. This can be further complicated if the information is mixed and contains personal information about the requestor.

A common example is people who are requesting historic information about themselves as a child that may also contain intimate details about their deceased parents. These cases will involve balancing the rights of the person requesting their own information, and the privacy rights of the third parties in the information. The Official Information Act will involve a slightly different approach, including a consideration of the public interest.    

At some point, information becomes historic, so it would probably be ridiculous to refuse requests about genealogy information about, say, 1860s immigrants because of “privacy”.

Withholding grounds

The Privacy Act recognises that there may be occasions when the information about a dead person needs to be withheld under a withholding ground. In particular, if the disclosure would be the unwarranted disclosure of the affairs of another individual, or of a deceased individual.

Some information is inherently sensitive, for example mental or sexual health information. It could be unfair to release such information to those who are just curious and have no good reason to see it. In addition, if known, the wishes of the deceased person will be important to consider, although not necessarily determinative in all cases. 

To be clear, the right of individuals to request information about themselves is strong. The balancing exercise needs to be approached sensibly, thoughtfully, and on a case-by-case basis considering the full context of the request. Just because somebody else is mentioned on a page, does not mean you should withhold the whole page. The passage of time, and the fact the third parties are deceased will usually diminish the privacy interest, and should tilt the balance towards disclosure.

So privacy can extend beyond the grave. It can raise some interesting questions, and these need to be considered in a responsible way.

Image credit: Old pointed tombstone - Creative Commons licence via Pixabay.

complaints, health, Health Information Privacy Code