Access to Public Information, Privacy, Data Protection and Retention
Mail and Guardian Media Ltd v. Chipu N.O.
Closed Mixed Outcome
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The European Court of Human Rights found that the failure to maintain an effective and accessible procedure for accessing medical records in the United Kingdom military was a violation of the right to receive information in terms of the right to a private life. After a former solider began suffering health problems he sought access to records to determine whether the tests for chemical weapons he had undergone during his period in the army impacted on his current health issues. Following repeated denials and piecemeal disclosure by the Ministry of Defence the former solider approached the Court. Although the Court declined to find an infringement of the right to freedom of expression, as that right does not impose a positive obligation on States to “disseminate information of its own motion”, it did hold that the failure to disclose the information had a sufficient impact on the former soldier’s ability to understand the causes of his health conditions and that his right to a private and family life was infringed.
From 1953 until April 1968, Thomas Michael Roche was a member of the British Army. He was involved in the research into chemical substances at the Chemical and Biological Defence Establishment at the Porton Down barracks in England. In 1962 and 1963, Roche underwent tests with toxic chemicals at Porton Down, the purpose of which was to ascertain the effects of chemical weapons. Before and after testing, Roche was subjected to various medical studies to assess his physical condition and a medical file was created containing his reaction to the chemical gases, including any adverse reactions.
From the 1980s Roche began to experience physical ailments associated with his lungs and blood pressure. Once these problems worsened, he began to suspect possible harm from the toxic chemicals to which he was exposed and he requested the medical records held at Porton Down so that his doctor could rule out any link between his medical condition and the chemical tests he underwent. In November 1989, he went on hunger strike outside the Porton Down barracks and brought the issue to the attention of Members of Parliament. In November 1989, Roche received an unsatisfactory response as the British Government limited itself to sending a reply to his doctor under a seal of confidentiality and containing incomplete information. Roche could therefore only obtain from the doctor the clarification that there did not appear to be a link between the chemical tests and his state of health. In response to parliamentary questions put to the Minister of Defence, the Chief Executive of Porton Down “confirmed the well-established policy of the MOD [Minister of Defence] of releasing service medical records to a veteran’s doctor on a ‘medical in confidence’ basis” [para. 26]. In response to Roche’s repeated attempts to obtain more detailed medical records, the MOD restated its policy of only releasing information “to doctors to allow proper diagnosis and ‘would be released, if necessary’” [para. 28]. The MOD maintained that there had been no evidence of adverse health effects following the testing at Porton Down.
In June 1991, Roche applied for a war pension based on the health problems he suffered because of his participation in the chemical tests. In January 1992, his application was rejected due to a lack of evidence to prove the actual cause of his ailments. Roche’s lawyers wrote to the MOD, threatening to bring legal proceedings against the department for negligence, assault, and breach of duty.
In January 1996 Roche first approached the European Court of Human Rights but adjourned the process to try again to order the release of his medical records by lodging a legal challenge in the Pensions Appeal Tribunal (PAT) in January and November 1998. Rule 6 of the PAT Rules governs the disclosure of information, and states that an applicant before the PAT can apply to the President of the tribunal for the disclosure of a document he believes to be relevant to the case and the President can direct the relevant government department to disclose the document if she or he “considers that the document or part is likely to be relevant to any issue to be determined on the appeal”. The Rule does empower the relevant Government Minister to refuse to disclose the document if “it would be contrary to the public interest for the whole or part of the document to which the direction relates to be disclosed publicly” or security reasons prevent the disclosure.
On February 1, 2001, the President of the PAT ordered the MOD to disclose “scheduled documents” as they “were likely to be relevant to the issues to be determined in the appeal” [para. 52]. Given the delay in the MOD’s disclosure following the 2001 PAT order, an appeal was scheduled for October 3 2002, but on October 2, 2002, the MOD disclosed seven documents which had previously been non-disclosable but maintained that two further documents sought by Roche could not be disclosed. In the appeal judgment “[t]he PAT also found ‘disquieting’ the ‘difficulties’ experienced by the applicant in obtaining the records which were produced to the PAT” [para. 63]. The PAT held that, regardless of not being able to establish the physical harm suffered by Roche due to the chemical tests, Roche did indeed face unnecessary obstacles in gaining access to his medical records, which the PAT itself had to request to be released.
Roche then appealed to the High Court, which allowed the case to be sent back to the PAT for review, and additional documents were provided by the Government in 2005. However, Roche’s pension claims were not satisfactorily fulfilled, and he continued to seek access to his medical documents.
Roche again approached the European Court of Human Rights and, after the Third Section relinquished jurisdiction in favour of the Grand Chamber, the case was heard before the Grand Chamber on October 20, 2004. He argued that his rights under Articles 8 and 10 of the European Convention on Human Rights had been infringed.
Article 10(1) states “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.” Subsection 2 provides some limitations: “The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary”.
Article 8 states that “[e]veryone has the right to respect for his private and family life, his home and his correspondence.”
The Court delivered a unanimous judgment. The central issue before the Court was whether the UK Government’s refusal to provide timely and complete information to Roche of his medical records constituted an infringement of Articles 8 and 10 of the Convention.
Roche argued that “his access to information to allay his fears about the tests was sufficiently linked to his private and family life to raise an issue under Article 8” [para. 139]. He submitted that he had a right to information in terms of Article 8 which would enable him to understand the risks posed by the chemical testing he had undergone. Roche argued that the information initially given to his doctor was insufficient as he had only had access to it five years after his doctor received it because of its status as “medical in confidence”, and that although he had received more information in 1997 and 1998 this was only following significant effort on his behalf. He described the release of information as “incomplete and drip-feed disclosure” [para. 145]. Roche submitted that the Government’s failure to maintain medical records for him constituted a violation of the positive obligations the State has to give effect to Article 8. Roche maintained that the Government’s reliance on the “medical in confidence” category to refuse access in his case did not meet the legitimate aim of “the interests of health professionals compiling medical records and, consequently, the interests of patients” as only the scientists at Porton Down gained from the lack of disclosure [para. 147].
The Government maintained that the process to access medical records did give effect to “the positive obligation under Article 8 to provide an effective and accessible procedure” and that the right to deny disclosure on national security or public interest grounds was consistent with Article 8 [para. 149].
The Court noted that the uncertainty to which Roche was subjected as to the extent to which the chemical experiments influenced his health “could reasonably be accepted to have caused him substantial anxiety and stress”, [para. 161] and that this meant that the difficulties he had in accessing his record “was sufficiently closely linked to his private life within the meaning of Article 8 as to raise an issue under that provision” [para. 155]. With reference to the cases of Gaskin v. the United Kingdom (judgment of 7 July 1989, Series A no. 160), Guerra and Others v. Italy (judgment of 19 February 1998, Reports 1998-I) and McGinley and Egan v. the United Kingdom (judgment of 9 June 1998, Reports 1998-III), the Court noted that in determining whether the State had a positive obligation it had to have “regard to the fair balance that has to be struck between the general interest of the community and the competing interests of the individual concerned” [para. 157]. It held that, in the present case, there was a positive obligation to create an “effective and accessible procedure” [para. 162].
The Court distinguished the present case from the McGinley and Egan case on the grounds that – although that case had held that the Rule 6 procedure fulfilled the State’s positive obligation – in the present case Roche had had to utilize procedures parallel to the Rule 6 process and that the Rule 6 procedure was inherently linked to litigation which therefore precluded individuals in Roche’s position who were not, solely, using litigation as a way to access their records.
The Court noted that the Government possessed information that could have promptly determined the links between Roche’s illness and the experiments in which he participated, yet as late as 2005 the Government was still providing information only at the PAT’s request. The Court stated that the Government had not submitted “any pressing reason for withholding the above-noted information although they commented on the vagaries of locating old records” [para. 161].
The Court held that the piecemeal disclosure of information through Roche’s attempts to use medical and political channels did not “constitute the kind of structured disclosure process envisaged by Article 8” [para. 166]. The Court noted that the files were not adequately safeguarded, and therefore the information was scattered, which contributed to the fact that Roche received only part of the information and in a slow manner. However, it stressed that this does not compensate for the government’s failure to fulfil its positive obligation because “it is equally the case that the absence of any obligation [or the unwillingness to assume] to disclose and inform facilitates this dispersal of records and undermines an individual’s right to obtain the relevant and appropriate disclosure” [para. 166].
Accordingly, the Court held that there had been a violation of Article 8.
The Court addressed the right to free expression, in particular, the right to access to information, under the threshold of Article 8 of the Convention and not under Article 10. It referred to the cases of Leander v. Sweden Series A no. 116, Gaskin and Guerra and emphasized that the freedom to receive information “prohibits a Government from restricting a person from receiving information that others wish or may be willing to impart to him and that that freedom ‘cannot be construed as imposing on a State, in circumstances such as those of the present case, positive obligations to … disseminate information of its own motion’” [para. 172].
Accordingly, the Court held that there was no direct interference with Article 10.
The Court awarded Roche EUR 8,000 for non-pecuniary damage.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
While the ECtHR noted the government’s failure to store and provide the applicant’s personal information in a timely manner, this was done in light of Article 8 of the Convention which refers to the right to respect for private and family life. In this regard, the ECtHR decided not to analyze the case under Article 10 of the Convention, on the understanding that the facts in the case were largely limited to violations within the scope of the applicant’s private life. With this approach, the Court limited the scope of Article 10 of the Convention which ensures prompt and adequate access to information held by public bodies or institutions. On the contrary, in this decision, the Court declined to recognize the right of the applicant to receive his medical information under Article 10.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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