FOI requests from heir hunters

How should local authorities deal with freedom of information requests from so-called 'heir hunters'? Ibrahim Hasan explains the options.

The poor quality of the British daytime television schedule means that one who is off sick or “working” from home, often has a choice between BBC Parliament, School for Stars and Heir Hunters. (Yes dear reader, I have done our research!) The latter is a BBC programme focusing on attempts by Probate researchers to find missing or unknown heirs, entitled to deceased persons’ estates.

In the UK, intestacy law states that when someone dies with no will or known family, everything they own passes to the Crown as ownerless property (or ‘Bona Vacantia’). This includes their house, money and personal possessions. Thus finding missing heirs is quite a lucrative business as some of these companies require beneficiaries to enter into an agreement to share up to 40% of the inheritance.

What the BBC programme does not tell the viewer is that Probate researchers (also known as heir searchers and forensic genealogists) often use the Freedom of Information Act 2000 (FOI) to request information to help them trace missing beneficiaries. Over the last few years many councils have seen a substantial increase in the number of these requests. These relate to deaths in the local area where the deceased is believed to have died intestate and with no known next of kin. Councils may have this information because the deceased was in the care of the council or had a public health funeral. The researchers often asks for the deceased’s name, date of birth, date of death, last known address and the estimated value of the estate.

How to deal with such requests? It may be that the requested information has already been passed on to the Government as required by law. In England and Wales, the Bona Vacantia Division (BVD) of the Treasury Solicitor’s Department is responsible for dealing with bona vacantia assets except in the Duchy of Lancaster or the Duchy of Cornwall. Every day BVD publishes an Unclaimed Asset List setting out unclaimed estates which have been recently referred, but not yet administered, and historic cases which have not yet been claimed by entitled relatives. Included in the list is the deceased name, area of death, date, marital status, place of birth and local authority informant. Sometimes other details will be given (if known) such as spouse's name, place of marriage and nationality. The list is updated every working day and newly advertised estates appear at the top of the list.

This list is a good starting point for probate researchers but often they will rely on FOI requests to councils to try and fill in the blanks and trace missing relatives before their rivals. Many councils have chosen to put a lot of the information on their website; Redbridge, Northampton, Knowsley to name a few. This then allows them to claim the exemption under section 21 of FOI i.e. that the information is reasonably accessible by other means. Often though the researchers want more than the basic information, which is published by the councils online (see later).

Of course where the requested information has been passed on to the BVD (or is about to be passed on) and it will appear on the published BVD list, it is open to the council to claim the exemption under section 22 (information intended for future publication). It does not matter that the council will not be publishing the information itself as long as there is a settled intention to publish it on the part of another (in this case the BVD). Section 22 is a qualified exemption and so subject to the public interest test.

Section 22 can only be claimed if the precise information, which is the subject of the FOI request, is going to be published by BVD. In a Commissioner decision from 2007 involving the Rent Service (TRS), the complainant requested to be advised as to the then current figures for local reference rents in a specified area in the UK. TRS declined to release the information, relying on section 22 stating that the figures would be contained in an annual valuation report to be published at a later date and that the public interest in maintaining the exemption outweighed the public interest in disclosing the information. The Commissioner found that section 22 did not apply as the figures requested would not be published in the valuation report.

Where the information requested by probate researchers is not published, many councils have claimed the exemption in section 31 arguing that disclosure would prejudice the prevention of crime. Indeed BVD have themselves claimed this exemption to withhold the value of the estates they have processed arguing that “disclosure of the exempt information could help enable the commission of fraud”. It is difficult to understand how disclosing the value of a person’s estate would directly lead to a criminal offence being committed. Surely more than a general statement is required in the refusal notice? The Information Commissioner’s Guidance on section 31 states:

“The public authority must be able to demonstrate a causal link between the disclosure and the harm claimed.”

However a 2012 decision of the Information Commissioner seems to lend support for use of section 31 in such cases. The complainant requested details of people for whom Westminster City Council had arranged “paupers” funerals in the last ten years. The Commissioner agreed with the council that section 31 applied and it was not in the public interest to disclose the information.

The council argued the release of personal details of a deceased individual with no known relatives, and no Will, may make the assets of that person vulnerable. It explained that the assets of the deceased need to be secured and disclosure of the information may lead to the commission of offences (e.g. arson, identity theft etc.) and cause loss to the unsecured estates. The Commissioner also placed weight on the fact that Westminster is one of the London boroughs with the most reported identity fraud cases.

Some councils have argued that section 41 (Breach of Confidence) may apply to some of the information requested about the deceased. This can only be the case if the information has come from another party and is highly confidential. Section 41 is unlikely to apply to most requests from probate researchers. For a detailed discussion on access to information about the deceased under FOI, read my article and blog post.

I have not come across a First Tier Tribunal decision on “Heir Hunter requests” and so the exemptions, especially section 31, have yet to be comprehensively explored. For now, it seems that councils can use the range of exceptions discussed above to reduce the burden of FOI requests from probate researchers. Some information should of course be provided to satisfy the nation’s appetite for “quality day time television!”

Ibrahim Hasan is a solicitor and director of Act Now Training. This article first appeared in the Act Now Blog.