Gary
Your e-mail covers some quite complex issues, so this brief response should
not be taken as definitive TNA guidance on the matter (we are working on
that).

TNA advice to places of deposit has generally been that, unless they have the
resources to carry out a careful review of the records concerned, they should
stick with the old '100 year rule' for 'blanket opening' of records. Specific
requests for information in 'closed' records will need to be dealt with in
accordance with FOI Act procedures, and in practice this may itself lead to
piecemeal erosion of the 100 year barrier.

There are various reasons for this cautious approach. As Kath has pointed
out, one is the possible existence of sensitive third-party personal data
relating to living individuals within the records concerned, even if they are not
the primary focus of the record unit.

Another is that most medical records held will have been transferred to places
of deposit under the presumption that they would only be opened to general
blanket access at 100 years from final date on the record unit. If places of
deposit want to change this, on the grounds that no FOI exemptions apply to
the formerly 'closed' records, they will need to consult on the change with the
transferring body, or its successor, in accordance with s.66 of FOIA.

In view of your wish to avoid a quagmire, I will not discuss the s.41 exemption
(actionable breach of confidence) at length. Being based on an area of
common law which is changing rapidly, its application is inevitably a matter of
assessing risk. There are a few solid points which can be made, however. It
should not be used to make access more difficult than before 2005 (the clue is
in the name of the FOI Act!). Since common law reform in 1934, it has been
possible for personal representatives to take action for breach on behalf of the
deceased, but by the same token, it would be difficult to use the exemption if
you know the representative will not take action. At some point, the various
factors on which it rests will come to a point where risks are negligible, but
you will need to be sure this is true of all the relevant records before you
consider ‘blanket opening’. More likely is that there will be opportunities to
open in specific cases or (outside FOI Act) to specific persons.

As Colin has written, the new statutory access regime does offer the
possibility of opening some records for general access earlier than would
previously have been the case, as suggested by your options b and c, but I
suspect that, as a specialist health archivist working within an NHS context,
he is better placed to carry out the necessary review and consultation
process than most places of deposit. While there are clear advantages in
terms of reduced bureaucracy in material being generally open, these have to
be set against the residual risks of inappropriate disclosure. Given current
concerns data security and misuse, it is important that we act responsibly,
and are seen to be doing so.