Case 000077. Request for hospital records of deceased relative - whether Hospital was justified in refusing access on the grounds that the requester was not a member of a class specified by Regulations made by the Minister under section 28(6) of the FOI Act.

Case Summary

Facts

The requester sought access to the medical records of his late uncle. Having been told by the Hospital that access to the records of a deceased person should be made either by the deceased's Personal Representative or by a person appointed by the Courts or Statute, the requester said that he was not able to make the request in either capacity. The Hospital refused to release the records on the grounds that such release would breach the right to privacy of the requester's late uncle. Subsequent to the requester's application to the Commissioner, he provided to the Hospital a letter from the sole surviving sister of his late uncle, authorising the release of the records to him.

Decision

Section 28(6) of the FOI Act provides that access may be given to the records of a deceased person where the requester "is a member of a class specified" by regulation. Relevant regulations (Statutory Instrument No. 47 of 1999) were made by the Minister for Finance in February 1999 and provide for the release of the records of a deceased person to one of three categories of requester i.e. a personal representative of the deceased; a person upon whom a function is conferred by law in relation to the deceased or his or her estate; or "the spouse or a next of kin of the individual or such other person or persons as the head considers appropriate having regard to all the circumstances and to any relevant guidelines drawn up and published by the Minister".

The Commissioner noted that the Hospital purported to rely on the FOI Interdepartmental Working Group Guidelines (which were drawn up on the basis of the 1999 Regulations) in telling the requester that the records of a deceased person could only be released to a person belonging to either of the first two categories of requester provided for in the 1999 Regulations. He also noted that the Hospital did not tell the requester that there was a third category which might cover the circumstances of his application. In the light of this, the Hospital was invited to say whether it considered the requester an appropriate person to whom the records may be released and if not, to outline its reasons for that view.

The Hospital said that the requester had been unable to meet any of the conditions set out by it, and that he had indicated he was making his request in his capacity as a member of the public. However, it did not outline whether or not it considered him to be an appropriate person to whom the records might be released under the 1999 Regulations.

The Commissioner noted that the requester's uncle had died in 1992, and that he appeared to have the consent of the remaining surviving sibling of his late uncle to gain access to the records. In the light of these facts, and bearing in mind that the Hospital had not argued against the requester being an "appropriate" person to whom the records may be released, the Commissioner concluded that he was an appropriate person to whom the records may be released and he annulled the Hospital's decision to refuse access to the records.

Date of Decision: 26.06.2001

Our Reference: 000077

26.06.2001

Mr X

Dear Mr X

I refer to your application under the Freedom of Information Act, 1997 (the FOI Act) for a review of the decision of St Vincent's University Hospital (the Hospital) to refuse you access to the medical records of your late uncle, Mr Y. I apologise for the delay which has arisen in dealing with your case. Unfortunately, due to pressure of work and staff shortages, it has not been possible to complete your review until now.

Background

You originally wrote to the Hospital on 12 June 1999 requesting results of blood tests that had been carried out on your late uncle. The Hospital replied that it was not then subject to the provisions of the FOI Act but that, upon receipt of authority from your late uncle's next of kin, it would be willing to provide you with a copy of the test results. In your subsequent FOI request of 7 November 1999 you again requested the results of the blood tests in addition to "all medical records of the above named deceased - including the charts". You also said that you were unable to get permission from the next of kin as the person listed on your late uncle's records as being the next of kin had also died.

In its response of 24 November 1999, the Hospital said that "access to records in respect of deceased persons should be made in the first instance by either the Personal Representative or a person appointed by the Courts or Statute". In your reply of 13 December 1999, you said that you were unable to make the request in either of these capacities but were doing so "as a member of the public". On 4 January 2000, the Hospital refused your request on the basis of preserving your late uncle's right to privacy. This decision was subsequently upheld by the Hospital's internal reviewer on 20 January 2000. Your application to this Office was made on 14 February 2000.

In further correspondence to the Hospital, dated 26 February 2001, you provided a letter from your aunt, Mrs Z, who told the Hospital she was the sole surviving sister of Mr Y and asked the Hospital to release his records to you. I have now decided to conclude my review with a formal decision. In arriving at my decision, I have had regard to correspondence from you, from the Hospital, to the provisions of the FOI Act and to the provisions of Statutory Instrument No. 47 of 1999.

Scope of Review

My review is confined solely to the issue of whether or not the Hospital is justified in refusing you access to the medical records of your late uncle on the basis that they are exempt from release under the FOI Act.

Findings

Section 28(6) of the FOI Act provides that access may be given to the records of a deceased person where the requester "is a member of a class specified" by regulation. Relevant regulations (Statutory Instrument No. 47 of 1999) were made by the Minister for Finance in February 1999. These provides that records of a deceased person may be made available to the following categories of requester:

1. "a personal representative of the deceased acting in due course of administration of his or her estate..."

2. "a person on whom a function is conferred by law in relation to the individual [i.e. the deceased] or his or her estate acting in the course of the performance of such function,"

3. "the spouse or a next of kin of the individual or such other person or persons as the head considers appropriate having regard to all the circumstances and to any relevant guidelines drawn up and published by the Minister".

In arriving at its decision, the Hospital purported to rely on the FOI Interdepartmental Working Group Guidelines, which were drawn up on the basis of the 1999 Regulations, and told you that the records of a deceased person could only be released to a person belonging to either category 1 or 2 above. It did not tell you that there is a third category provided for in the 1999 Regulations which might cover the circumstances of your application. The Guidelines describe this third category as being intended primarily to cover requesters, not covered by categories 1 and 2, who are deemed eligible by the public body in question to pursue access to certain records following such enquiries and consultations as the public body deems necessary.

Ms Moran of my Office wrote to the Hospital on 2 May 2001 pointing out that it had not told you of this third category nor had it invited you to make a case in the light of it. She drew the Hospital's attention to section 6(2) of the FOI Act which requires that all public bodies shall "give reasonable assistance" to a person who is seeking access to a record. Ms Moran asked the Hospital to say whether or not it considered you to be an "appropriate" person to whom your late uncle's medical records might be released; in the event that the Hospital considered you not to be an "appropriate" person, she asked that it outline its reasons for taking this view.

In its response, the Hospital said that your initial request had been made "in the capacity of a relative of the deceased, the response to which requested compliance with Guidance Notes issued under section 28(6) of the Freedom of Information Act, 1997". The Hospital went on to say that you were unable to meet any of the conditions set out by it and that you had indicated that you were making your request as a "member of the public". It went on to say that it was its interpretation of the FOI Act was "that there are no circumstances whatsoever whereby a member of the public has an entitlement to copies of confidential medical records of any living or deceased patient of this or any other hospital". The Hospital failed to address the question of whether or not it considers you an "appropriate" person for the purposes of the 1999 Regulations.

The Hospital appears to hold the view that, because you said you were making your request "as a member of the public", you should be treated in the same manner as would a stranger seeking such records. However, by its failure to bring to your attention the third category of requester as provided by the 1999 Regulations, it effectively put you in such a position and precluded you from putting forward a case as to why your circumstances merited the release of the records.

As matters stand, I consider that the Hospital did not give you "reasonable assistance" by virtue of this omission. Furthermore, in its response to Ms Moran's letter, the Hospital did not demonstrate that its decision to refuse access to your late uncle's medical records was, in all the circumstances, justified. Section 34(12)(b) of the FOI Act provides that the onus is on the Hospital to prove that its refusal of your request is justified. Where the Hospital fails to demonstrate that it was justified in refusing a request, then that refusal "shall be presumed not to have been justified".

Given that the Hospital appears not to have done so, I have given consideration as to whether or not, in the circumstances, you would appear to be an "appropriate" person to whom the records may be released. I note that your uncle died in 1992. I also note that you appear to have the consent of the remaining surviving sibling of your late uncle to gain access to his medical records. Taking these facts into account, and bearing in mind that the Hospital has not argued against your being an "appropriate" person to whom the records should be released, I have formed the opinion that, under these circumstances, you do appear to me to be such an "appropriate" person. Therefore, it seems to me that the appropriate course of action for me to take is to annul the Hospital's decision and direct the release of the records requested, subject to the Hospital's normal procedures for verifying that your aunt's consent is valid.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act, 1997, I hereby annul the decision of the Hospital to refuse you access to the medical records of your late uncle, Mr Y. I direct that the records be released to you, subject to the Hospital's verification of the consent supplied by your aunt, Mrs Z.

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 that decision. Such an appeal must be initiated not later than four weeks from the date of this letter.

Yours sincerely

Information Commissioner