Case 99189

Request for access to medical records - whether direct release might be prejudicial to the physical or mental health, well-being or emotional condition of the requester - section 28(3).

Case Summary

Facts

The requester sought access to his medical records from a Health Board. The Board refused the request on the grounds that section 28(3) applied to all of the records, in that direct release of the records to the requester might be prejudicial to his physical or mental health, well-being or emotional condition. Pursuant to section 28(4), the Board offered to make the records available to a health professional nominated by the requester. The requester did not accept this.

Decision

The Commissioner considered that the records in this case should be considered as a single composite record, in view of the fact that all the records at issue were medical records and were necessarily interlinked. He said that the test, in deciding whether section 28(3) had been correctly invoked by the Board, was whether release of release of the records in question "might" be considered to be prejudicial to the requester's "physical or mental health, well-being or emotional condition." The Commissioner also said that he considered that there should be evidence of a real and tangible possibility of harm being caused to the general health, welfare and good of the requester as a result of direct access to the records in question. He noted that the Board had the explicit advice of four separate psychiatrists that release of the records to the requester might well be prejudicial to his health and welfare; he considered that it would be fair to say that the views expressed by the psychiatrists went well beyond the standard of proof implicit in the use of the word "might". The Commissioner concluded that the Board was justified in deciding to refuse the requester direct access to the records in question.

In support of his case for direct access to the records, the requester claimed that a number of the exceptions to section 28, i.e. sections 28(2)(e), 28(2)(c), 28(2)(a), 28(5)(a) and 28(5)(b), were applicable to the records but the Commissioner did not accept the requester's arguments.

Date of Decision: 12.12.2000

Our Reference: 99189

12.12.2000

Mr X

Dear Mr X

I refer to your application under the Freedom of Information (FOI) Act for a review of the decision of [a] Health Board concerning your request for your medical records. Your original request to the Health Board was dated 31 December 1998. Please accept my apologies for the delay which has arisen in dealing with your application to my Office.

I have now completed my review of the Health Board's decision. In carrying out that review, I have had regard both to your submissions (including that made when you met with my staff on 28 October 1999) and to the submissions of the Health Board. I have also taken account of the actual records in your case which were provided to my Office for inspection.

Background

As you know, the Health Board refused your request in full. You were advised that access to your personal medical records could be given to a health professional nominated by you but this was not acceptable to you. The initial decision was maintained by the Health Board in its internal review decision of 6 April 1999.

I note that Ms. Patricia Doyle of my Office wrote to you on 27 October 2000 setting out her preliminary views on your case. I note also that you replied to Ms. Doyle's letter on 13 November 2000 and outlined the reasons why you disagree with the analysis and tentative conclusions set out by Ms. Doyle. The specific points raised in your letter of 13 November 2000 are dealt with later in this letter.

Scope of Review

My review is concerned solely with the question of whether the Health Board's decision to refuse your request for access to your medical records is in accordance with the provisions of the FOI Act.

Findings

The Health Board's decision to refuse your FOI request was on the basis that section 28(3) of the FOI Act applied to all of the records. The Health Board's decision letters do not cite section 28(3) but it is clear that this was the basis for its decision. In addition, the Health Board contended that some of the information contained in certain records related to third parties and was exempt from release on that basis. In its submission to my Office, the Health Board expanded on the reasons why it felt that certain third party information is exempt. However, as the Health Board has relied on section 28(3) in relation to all of the records requested by you, this is the primary issue to be addressed in my review.

Ms. Doyle has already dealt with the relevance of section 28(3), and sent you a copy of the section, in her letter of 27 October 2000. The subsection provides that disclosure of medical records may be refused if

"in the opinion of the head concerned, disclosure of the information concerned to the requester might be prejudicial to his or her physical or mental health, well-being or emotional condition."

Section 28(4) provides that, where the public body refuses access on these grounds, and where the requester so requests, access to the records will be given to a relevant health professional, specified by the requester. I note that the Health Board refused you access to your medical records and offered access to a health professional specified by you. I also note that you indicated that this form of access is not acceptable to you.

Given the Health Board decision that section 28(3) applies to all of your medical records, it is necessary to take a view as to whether your records should be considered on an individual record by record basis or, alternatively, whether they should be considered as a single composite record. In this instance I have taken the view that the latter approach is the correct one. All of the records at issue are medical records and are necessarily interlinked. In any event, I understand from you that your interest is in having access to all of the records rather than just some of the records.

In deciding whether section 28(3) has been correctly invoked by the Health Board, it is necessary to consider the evidence which it has submitted to me on the matter. The test in this context is whether release of the records in question "might" be considered to be prejudicial to your "physical or mental health, well-being or emotional condition." The Health Board had the explicit advice of four separate psychiatrists that the release of the records to you might well be prejudicial to your health and welfare. Indeed, it would be fair to say that, in general, the views expressed by the psychiatrists went well beyond the standard of proof implicit in the use of the word "might".

In her letter to you of 27 October, Ms. Doyle cited a decision of the Queensland Information Commissioner in explaining the approach to interpreting section 28(3). You say that you do not accept the relevance of the Australian case in relation to your own. I must point out that the Queensland Commissioner's case which was cited is not, in any sense, being used by my Office as a binding precedent to decide your case. I have, in a number of my decisions, looked to the decisions of the Queensland Information Commissioner and, indeed those of other Information Commissioners, where these give useful insight in interpreting the Irish FOI Act. The Queensland FOI Act contains a section [section 44(3)] which is comparable to section 28(3) of the Irish Act. I am of the opinion that the following thoughts, expressed in the decision "S" and the Medical Board of Queensland (Decision No 94028) are useful in considering the approach to be taken in applying section 28(3) to your medical records. The test is posed in terms of the following question:

"If the information were disclosed direct to the applicant is there a real and tangible possibility as distinct from a fanciful, remote or far-fetched possibility of prejudice to the physical or mental health or well-being of the applicant? This is what the words "might be prejudicial" mean. Well-being has a wide import and a phrase "physical or mental health or well-being" indicates that a broad approach is to be taken. The general health, welfare and good of the person is to be considered."

I consider therefore, that in a case where section 28(3) is relied upon to refuse direct access to a record, there must be evidence to support the opinion that there is a a real and tangible possibility of harm being caused to the general health, welfare and good of the requester as a result of direct access to the record in question. I have given careful consideration to the evidence presented in this regard by the Health Board and my assessment of that evidence is that I consider that the Health Board is correct in deciding to refuse you direct access to the records you have requested.

My decision that section 28(3) is being correctly applied to all of the records makes it unnecessary to consider the application of other provisions cited by the Health Board to refuse you access to some of the records. As I noted earlier, the Health Board cited other provisions of the Act, in addition to section 28(3), in refusing access to certain records.

I turn now to a consideration of the arguments raised by you in support of your case for direct access to the records. You have suggested that direct disclosure of the medical records to you is necessary under section 28(2)(e) of the Act, that is, that "disclosure is necessary in order to avoid a serious and imminent danger to the life or health of an individual." You have not presented clear evidence to indicate that the failure to release the records directly to you has resulted, or will result, in a serious and imminent danger to your life or health. At the same time, I am persuaded by the evidence submitted by the Health Board that there a real possibility of prejudice to your physical or mental health or well-being if you are given unmediated access to the records in question. I do not accept, therefore, that section 28(2)(e) is applicable in your case.

You have also contended that your medical records should be released to you under the provisions of section 28(2)(c) of the Act. I do not accept this to be the case. In my opinion your medical records do not contain "information of the same kind....in respect of individuals generally...[which] is available to the general public". Your medical records are unique and I consider that the evidence presented to me in relation to them would not warrant my classifying them as information of a kind which is available to the general public.

I accept that section 28(2)(a) is applicable to the records in question. However, you will see from a reading of this section that it is subject to subsection (3) which, as set out above, I believe to be applicable to the records in question.

You also contended that section 28(5)(a) and 28(5)(b) are applicable in your case. However, these subsections are only relevant where a request for records is refused under section 28(1), which is not the case here.

In your letter to me of 13 November 2000, you also raised questions in relation to the nature of the records held by the Health Board. I cannot give you the information you seek as I am bound by section 43(3) of the Act which provides that I must take all reasonable precautions to prevent the disclosure of information contained in an exempt record including information as to whether a record exists or does not exist. As I am deciding that the records in question are exempt records under section 28(3) of the Act, it follows that I cannot release information about them to you.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act, 1997 I hereby affirm the decision of the Health Board in relation to your request of 31 December 1998

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than four weeks from the date of this letter.

Yours sincerely

Information Commissioner