Beyond the Grave: A glimpse into the privacy interests of the deceased in NSW Coronial Proceedings

The public nature of coronial proceedings, and the broad scope of NSW Coroners to: "act lawfully outside the strictures of privacy legislation",^[1] raises complex issues in relation to how the privacy interests of the deceased should be recognised and managed during the coronial process. This article explores the mechanisms available to protect the privacy interests of the deceased in NSW coronial proceedings under the Coroners Act 2009 (NSW) (Coroners Act), including general obligations, the ability to restrict access to files and the making of non-publication orders.

Introduction

Particularly in the evolving digital era, there has been increasing recognition of the privacy interests of the deceased, namely: "the right of a person to preserve and control what becomes of his or her reputation, dignity, integrity, secrets or memory after death".^[2]

The question of whether the privacy interests of the deceased should be recognised has been described as an "unsettling philosophical argument".^[3] Although, historically, it has been contended that the concept of privacy ceases upon death as "dead people can feel no shame or humiliation",^[4] this approach has been rejected for being inconsistent with inalienable concepts of human dignity, and the "fundamental right to be treated as a person, rather an as a piece of meat on a slab".^[5]

In NSW, the privacy interests of certain deceased receive some protection under the Privacy and Personal Information Protect Act 1998 (NSW) (PPIP Act) and Health Records and Information Privacy Act 2002 (NSW) (HRIP Act), which include information about individuals who have been dead for less than 30 years in the definition of "personal information".^[6]

If the deceased are capable of holding privacy interests, it is arguably difficult to imagine a situation more likely to violate such interests than a coronial inquest. In NSW, Coroners play a vital role in investigating the circumstances surrounding sudden, suspicious, violent, unnatural and unknown deaths.^[7] NSW Coroners also seek to prevent future tragedies by making recommendations regarding systemic issues.^[8] Necessarily, the Coroner's role involves the examination of personal records including autopsy reports, medical files, and other communications, as well as evidence from witnesses that refers to personal information.

The public nature of coronial inquests, as well as the exemption of NSW Coroners from privacy legislation, makes the privacy of the deceased particularly vulnerable to unnecessary intrusion.  To ensure adherence with open justice principles, coronial hearings are generally held openly^[9] and nothing in the PPIP Act or HRIP Act "affects the manner" in which NSW Coroners exercise: "the functions of the coroner as [they] relate to the conduct of inquests and inquiries" under the Coroners Act.^[10] Accordingly, when carrying out coronial functions, NSW Coroners are not bound by the operation of NSW privacy legislation (including in relation to individuals who have died within the last 30 years).^[11]

General obligations

The Coroners Act does not contain any express obligations regarding the privacy interests of the deceased. However, read as a whole, the language of the Coroners Act arguably reflects: "a general understanding and philosophy in the community that the living have obligations to the dead"^[12] and implies that there are circumstances where the privacy interests of the deceased should be recognised.

For example, "regard is to be had to the dignity of the deceased person"^[13] during post-mortems, specific powers are provided to Coroners in circumstances of suspected self-inflicted deaths in acknowledgement of the "stigma" associated with "a finding of suicide",^[14] and there are references to the impact of coronial proceedings on relatives.^[15] While this language does not specifically refer to "privacy", arguably, they form part of the subset of concepts relating to the privacy interests of the deceased which, as set out above, have been described as encompassing: "reputation, dignity, integrity, secrets or memory ".^[16]

Although, as will be explored below, there are mechanisms that allow NSW Coroners to protect personal information via the withholding of files and making of non-publication orders, the Coroners Act may benefit from an express, overarching requirement to recognise the privacy interests of the deceased more generally. Such an obligation exists in Victoria by virtue of section 8(e) of the Coroners Act 2008 (Vic). Section 8(e) requires Coroners, when exercising all functions, to: "have regard, as far as possible in the circumstances, to… [the] need to 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". This ensures that the privacy concerns of deceased persons are better protected at all junctions of the coronial process.

Access to coronial files

Requests are regularly received during coronial proceedings to access coronial files,^[17] which commonly contain large amounts of "inherently distressing" material about the deceased, such as graphic detail regarding cause of death and explicit photographs.^[18] In NSW, before granting access to coronial files the Coroner must be "satisfied that it is appropriate" to grant access.^[19] This test applies to any access provided to, for example, interested parties, the media and/or the general public.^[20] Therefore, the Coroner is able to restrict access to the coronial file to protect the privacy interests of the deceased.

When considering whether to give access to coronial files, NSW Coroners must have regard to a list of factors which includes the principle of open justice referred to above, the impact on the relatives of the deceased, the connection of the person requesting access to the proceedings, the reason access is sought, and any other matter considered relevant.^[21] As NSW coronial guidance emphasises that: "Coroners must… be very sensitive… to the potential for gross breaches of privacy if access to coronial files and records is not carefully controlled", it may be accepted that the privacy interests of the deceased are capable of being a "relevant factor" weighing against access.^[22]

However, the release of coronial files "raises a number of complex problems for coroners".^[23] Firstly, there is no express requirement that the privacy interests of the deceased be considered during this process. This differs to the requirements in other jurisdictions such as in Victoria and Queensland, where personal privacy is a statutory factor to be taken into account when considering the release of coronial files.^[24]

Secondly, there is no statutory obligation in NSW on Coroners to proactively identify personal material about the deceased within coronial files and records to determine how they should be managed and protected. This is problematic in circumstances where, as a matter of procedural fairness, coronial files are usually forwarded to interested parties, but resource constraints may make more than redacting anything than obviously sensitive information very difficult.^[25] Additionally, it may be challenging for those assisting the Coroner to identify and redact potentially sensitive personal information without knowledge of the deceased.

Without a positive statutory obligation imposed on NSW Coroners to have regard to the privacy interests of the deceased, or otherwise identify personal material when granting access to coronial files, that information may be more vulnerable to disclosure than otherwise would be the case. This is particularly the case in circumstances where the deceased has no "relatives" capable of being "impacted" by the release of files, or there is no third party available to advocate against the release of personal material. As a result, the personal information of the deceased may become subject to distressing media or public scrutiny. This is unnecessary as, often, certain personal information in the coronial file (being in investigative form), will not be central to the issues being investigated by the Coroner.^[26]

Non-publication orders

NSW Coroners have broad powers to prohibit or restrict the publication of any report or matter regarding a suspected self-inflicted death, including the de-identification of the deceased.^[27] Under section 74 of the Coroners Act, Coroners may also protect the privacy interests of deceased individuals more generally by making orders prohibiting the publication of evidence if the "public interest" in withholding material outweighs the principles of open justice.

However, the statutory test under section 74 does not expressly encompass considerations of the privacy interests of the deceased. This is in contrast to other jurisdictions such as Victoria which, as set out above, requires privacy interests to be considered when exercising all coronial functions. Additionally, in the Northern Territory Coroners "must" issue non-publication orders 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".^[28] Notably, in New Zealand, Coroners "may" prohibit the publication of evidence "if satisfied that it is in the interests of justice, decency, public order, or personal privacy to do so" (emphasis added), on the basis that: "intensely private information is not disclosed in cases of natural death and so should not be easily accessible in coronial cases".^[29]

In any event, although the term "public interest" is undefined, the language and provisions of the Coroners Act (as set out above) imply^[30] that there may be circumstances in which the privacy interests of the deceased should be protected. On one reading, the provisions of the Coroners Act appear to have a focus on protecting privacy during post-mortem examinations (and reports) and in cases of suspected suicide. However, arguably, if the public interest did not encompass the deceased's 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 the family of someone into whose death an inquest was held due to the suspicious nature of the circumstances in which the death occurred."^[31]

However, the circumstances in which a non-publication order will be justified must be "wholly exceptional or special".^[32] The "mere desire" of NSW Coroners to: "consider feelings of delicacy or to exclude from publicity details which it would not be desirable to publish should not be enough".^[33] Further, often, the making of such an order will be dependent on an interested party to the proceedings making an application, and bearing the heavy onus of establishing that it is necessary to depart from the principles of open justice.^[34] In many cases, it may be difficult, or impossible, for deceased persons with no relatives or third parties willing to advocate on their behalf, to make such an application.^[35]

The issues associated with obtaining and justifying an order under section 74 arguably require further consideration. Although media scrutiny is critical to coronial proceedings, as it plays an: "important part in conveying a coroner's public health and safety concerns to the public",^[36] unrestricted publicity may lead to unwarranted intrusions on the privacy interests of the deceased, such as in relation to their reputation and inherent dignity.^[37] It is therefore "important to remember the fundamental duty of fairness. Reputations are often at stake".^[38] This is particularly undesirable where the publication is "unnecessary"^[39], that is, there is no legitimate forensic purpose in the publication of material.

Amendments to the Coroners Act incorporating the privacy interests of the deceased into the "public interest" test, or an overarching requirement to consider such interests, could provide a better compromise to the withholding of personal information that is not sufficiently relevant or material to affect principles of open justice.

Conclusion

The NSW coronial jurisdiction has been described as a "small pocket of… NSW society where a different tension between privacy and disclosure" exists.^[40] This tension has been amplified further by the express consideration of deceased privacy interests in the PPIP Act and HRIP Act, which is not reflected in the Coroners Act.

In order to avoid the unnecessary and distressing disclosure of personal information about the deceased, the Coroners Act may benefit from amendments requiring or permitting the consideration of deceased privacy interests when considering whether to provide access to coronial files and make non-publication orders. Arguably, the most effective way to protect the privacy interests of the deceased in NSW coronial proceedings would be via a provision (such as in Victoria) that creates an overarching positive obligation on the Coroner to consider such interests when exercising coronial functions.

In the absence of any positive statutory obligations as to how the personal information of the deceased should be treated, NSW Coroners need to continue to give careful consideration to whether such interests outweigh the principles of open justice when determining whether to withhold personal information from disclosure or publication. This is particularly so in circumstances where deceased persons are unable to advocate for themselves, and may have no relatives or third parties to do so on their behalf.

On 6 May 2021, a Select Committee of the NSW Legislative Council was established to inquire into and report on the coronial jurisdiction of NSW (Inquiry).^[41] Although the Inquiry has not been explicitly directed to consider issues of privacy, the Terms of Reference provide broad scope to explore: "the law, practice and operation of the Coroner's Court of NSW" and: "whether, having regard to coronial law, practice and operation in other Australian and relevant overseas jurisdictions, any changes to the coronial jurisdiction in New South Wales are desirable or necessary".^[42] Accordingly, the Inquiry provides an opportunity for NSW to consider the adequacy of the protection of the privacy interests of a deceased person under the Coroners Act and whether adopting measures from other jurisdictions, such as Victoria and New Zealand, would assist better protecting the privacy interests of deceased persons.