Keeping the secrets of the dead? An evaluation of the statutory framework for access to information about deceased persons

Abstract

In England and Wales, the question of access to information about deceased persons is determined under two separate statutes: the Access to Health Records Act 1990 and the Freedom of Information Act 2000. This paper examines the normative and legal issues raised by access to information about the dead and evaluates the statutory framework. It draws on philosophical and legal sources which support the claim that the dead are owed a moral and legal duty of confidence. However, it also shows that this is not an absolute duty and it identifies the public and private justifications which favour the provision of access to information about the dead. It argues that the current statutory framework is excessively restrictive and that it fails to provide an appropriate context within which interests favouring access may be considered. Accordingly, it argues that the law needs to be reformed and that a specific legislative framework dealing with access to information about the dead should be introduced. The paper concludes by setting out some preliminary suggestions regarding the possible form of such a legislative framework.