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05 Mar 2020

The protection of personal information in coronial proceedings

By Madeleine Butler, Dr Ashley Tsacalos

If personal information is irrelevant or unlikely to impact upon the functions of the Coroner, it should be withheld from disclosure or publication in light of the public interest in protecting personal privacy.

Coroners play a critical role in investigating the circumstances surrounding suspicious, violent, unnatural and unknown deaths.[1] Coroners also seek to prevent future tragedies by identifying systemic issues within institutions and making recommendations.[2] Although coronial findings can be powerful catalysts for change, public and media scrutiny is fundamental in prompting appropriate government responses.[3] Accordingly, principles of open justice are of particular importance to coronial proceedings.[4]

To ensure transparency, coronial proceedings are generally held in public and are exempt from privacy legislation. [5] This often results in privacy concerns for individuals whose personal information may form part of the documents before the Coroner or are to be included in the findings made.

Coronial proceedings have been described as an "intrusion by the State" into the private lives of the deceased's relatives who are "compel[led]… to re-live distressing memories several years after the trauma experienced … in a public forum".[6] According to research, the release or publication of sensitive material can compound the mental distress experienced during what is already an intense and difficult period.[7] Privacy concerns also arise in relation to the details of indirectly involved third parties. As coronial legislation often provides only limited privacy protections, complex issues arise for Coroners when considering whether to grant access to coronial files or prohibit the publication of evidence.

Access to coronial files

Coroners regularly receive requests to access coronial files which contain all of the material obtained during an investigation.[8] The records held are inherently distressing and contain large amounts of personal information. As a matter of procedural fairness, access is generally granted to interested parties[9] subject to factors such as public interest immunity and relevance.[10]

The Coroner's discretion to give media and public access to coronial files is broad and involves a consideration of the following: whether disclosure is "appropriate" or in the "public interest" in light of open justice principles; the impact of disclosure on relatives; the connection of the person requesting access and the reason access is sought.[11]

In Victoria and Queensland, personal privacy is included in a statutory list of factors that must be considered by the Coroner when determining whether public access should be granted.[12] However, no other jurisdiction requires the Coroner to take privacy considerations into account and there is no general obligation or protocol requiring Coroners to identify personal material and determine how it should be managed. Nor are there any further privacy safeguards incorporated into coronial legislation, such as a requirement to provide notices to third parties whose personal information may be released.[13]

Without express privacy protections or protocols for the management of sensitive data, personal information may be vulnerable to inadvertent disclosure by the coroner, particularly in circumstances where it relates to individuals who are either not aware of the potential release of personal information or who are not able to object to its disclosure. As a result, third parties (or the families of deceased third parties) may become subject to unnecessary and distressing media or public scrutiny. This is undesirable as, despite open justice principles, much of the personal information in the coronial file (being in investigative form) will often be irrelevant to the issues for determination and could be removed on that basis.[14]

Non-publication or suppression orders

Coroners may also make orders prohibiting or suppressing the publication of evidence if it is in the "public interest" to do so. The public interest in withholding material taken into evidence must outweigh the principles of open justice.[15]

The public interest is undefined but can be derived by reference to the scope and purpose of statutes.[16] As family sensitivity is mentioned throughout coronial legislation, it may be accepted that there is a public interest in protecting the personal information of the deceased and their relatives in the coronial context.[17] This is supported by the provision, in some jurisdictions, for non-publication orders in inquests involving suicide due to the stigma experienced by families.[18] Arguably, if the public interest did not encompass privacy considerations more generally, there would be "an incongruity between the privacy afforded to the family of a person who had committed suicide as against … someone into whose death an inquest was held due to the suspicious nature of the circumstances…".[19]

The circumstances in which privacy considerations will allow for a departure from open justice principles must be "exceptional" but may arise where media publication is likely to exacerbate pain and suffering and there is no legitimate purpose in publication.[20] However, it is important to note that orders cannot be made merely to prevent embarrassment.[21]

In the Northern Territory and Tasmania, the coroner may restrict evidence on the basis that publication would: "involve the disclosure of details of sensitive personal matters including, where the senior next of kin of the deceased have so requested, the name of the deceased".[22] This has been described as an acceptable compromise to the withholding of personal information that, in most situations, is not sufficiently relevant or material to affect principles of open justice.[23]

Conclusion

Although the principles of open justice are fundamental to coronial proceedings, if invoked too readily, they may result in the unnecessary disclosure of personal material and expose families and third parties to unreasonable distress.[24]

In the absence of express privacy protections and protocols, Coroners are in the position where they need to give careful consideration to whether sensitive material is relevant and/or whether its publication will assist in achieving the investigative and preventative outcomes desired. If personal information is irrelevant or unlikely to impact upon the functions of the Coroner, it should be withheld from disclosure or publication in light of the public interest in protecting personal privacy.



[1] New South Wales, Coroners Bill 2009 (NSW) Second Reading Speech, Legislative Council, 4 June 2009; Coroner's Court of Victoria, Findings of the Inquest into the Death of Luke Geoffrey Batty (28 September 2015).Back to article

[2] Queensland State Coroner, Coroner's Guidelines 2013 (version 2, September 2014); Domaszewicz v State Coroner [2004] VSC 528. Back to article

[3] Queensland State Coroner, Coroner's Guidelines 2013 (version 2, September 2014); Coroner's Court of Victoria, Findings of the Inquest into the Death of Tyler Cassidy (23 November 2011).Back to article

[4] Coroner's Court of Western Australia, "Inquest Hearings in Western Australia" (2019); Coroner's Court of Victoria, Findings of the Inquest into the Death of Tyler Cassidy (23 November 2011); Mirror Newspapers Limited v Waller (1985) 1 NSWLR 1, per Hunt J at 20.Back to article

[5] See, for example, section 13, Health Records and Information Privacy Act 2002 (NSW), and section 6, Privacy and Personal Information Protection Act 1998 (NSW); Mirror Newspapers Limited v Waller (1985) 1 NSWLR 1.Back to article

[6] Coroner's Court of New South Wales, Findings of the Inquest into the Death of Blair Dalton (20 December 2019)Back to article

[7] L Biddle, "Public Hazards or Private Tragedies? An Exploratory Study of the Effect of Coroner’s Procedures on Those Bereaved by Suicide" (2003) Social Science & Medicine 56.Back to article

[8] Judicial Commission of New South Wales, "Local Court Bench Book – Coronial Matters" (2020).Back to article

[9] Persons who, in the opinion of the Coroner, have sufficient interest in the subject-matter of the proceedings and are granted leave to appear. This commonly includes families, medical services and affected government agencies. Back to article

[10] Judicial Commission of New South Wales, "Local Court Bench Book – Coronial Matters" (2020).Back to article

[11] See, for example, section 65, Coroners Act 2009 (NSW), and section 115, Coroners Act 2008 (Vic). Back to article

[12] Under section 8(e) of the Coroners Act 2008 (Vic), the Coroner must balance "the public interest in protecting a living or deceased person’s personal or health information with the public interest in the legitimate use of that information". Similarly, pursuant to section 52 of the Coroners Act 2003 (Qld), the Coroner cannot release a document that "contains information about a living or dead person's personal affairs" unless relevant.Back to article

[13] Victorian Law Reform Commission, "Inquiry into the Review of the Coroner's Act 1985" (14 September 2006).Back to article

[14] See Commissioner of Police Service v Clements [2006] 1 Qd R 210, where Wilson J held at [15] that: "While the Coroners Court is not bound by the rules of evidence, the touchstone of the evidence and submissions it may receive must be relevant to the matters the Coroner is empowered to investigate, the questions on which he or she must make findings and the matters on which he or she may comment".Back to article

[15] See, for example, section 74, Coroners Act 2009 (NSW); section 41, Coroners Act 2003 (Qld); and section 49, Coroners Act 1996 (WA). Back to article

[16] Duncan v Independent Commission Against Corruption [2016] NSWCA 143, per Bathurst CJ at [226].Back to article

[17] Section 8(e), Coroners Act 2008 (Vic); Deputy NSW Ombudsman, "What is the public interest?" (6 September 2016).Back to article

[18] Section 75, Coroners Act 2009 (NSW); Judicial Commission of New South Wales, "Local Court Bench Book – Coronial Matters" (2020).Back to article

[19] See Fardell v The Attorney-General on behalf of the Coroner's Court at North Shore and Auckland [2006] NZHC 133. In this case from the High Court of New Zealand it was determined that privacy interests were capable of being public interest considerations in the context of the publication of evidence in coronial proceedings. Back to article

[20] Victorian Law Reform Commission, "Inquiry into the Review of the Coroner's Act 1985" (14 September 2006); Note also Coroner's Court of Victoria, Findings of the Inquest into the Death of Luke Geoffrey Batty (28 September 2015) where suppression orders made over personal information relating to the names of friends and teammates, specific detail about fatal death, and contact details; Mirror Newspapers Limited v Waller (1985) 1 NSWLR 1 per Hunt at 20.Back to article

[21] Mirror Newspapers Limited v Waller (1985) 1 NSWLR 1, per Hunt J at 20.Back to article

[22] Section 57(1)(c), Coroners Act 1995 (Tas), and section 43(1)(c), Coroners Act 1993 (NT). Back to article

[23] Victorian Law Reform Commission, "Inquiry into the Review of the Coroner's Act 1985" (14 September 2006).Back to article

[24] Legal Aid NSW, "Statutory Review of the Coroners Act 2009: Draft proposals for legislative change Legal Aid NSW Submission to the NSW Department of Justice" (September 2016).Back to article

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.