Case 000453. Access to records in the possession of the requester's former GMS General Practitioner - whether release of the records could reasonably be expected to have a serious adverse effect on the Board's performance of any its functions relating to management - section 21(1)(b) - whether direct disclosure of the records to the requester might be prejudicial to his physical or mental health, well-being or emotional condition - section 28(3)

Case Summary

Facts

The requester sought access to his medical records, which were in the possession of Dr Y, the requester's former GMS General Practitioner. The Board initially had difficulty retrieving the records from Dr Y, but finally obtained possession of the records and gave the requester partial access to them. The Board claimed that full release of the records would undermine the working relationship between GMS General Practitioners and the Board. It claimed that, where a GMS doctor has objections to release of such records, release under FOI could jeopardise working relationships and lead to less information being recorded in future. This, it claimed, would have a deleterious effect on the delivery by the Board of its services.

Decision

The Commissioner noted that, although Dr Y had concerns over the release of the records, at least two other medical practitioners had not objected to the release of their records in relation to the requester, and neither Dr Y nor the Board furnished any concrete evidence to suggest their concerns were well founded. He also accepted that the possible future modification by doctors, of their recording of information, would constitute an adverse effect but no evidence was presented to support the view that it was reasonable to expect such an outcome. He found that section 21(1)(b) did not apply to the records.

The Commissioner also found that the evidence supplied to him, in support of the view that the information in the records should not be directly released to the requester, fell short of supporting the view that direct access to the records might result in a real and tangible possibility of prejudice to the physical or mental health, well being or emotional condition of the requester. He found that section 28(3) did not apply and directed the release of the records.

Date of Decision: 14.01.2002

Our Reference: 000453

14.01.2002

Mr X

Dear Mr X,

I refer to your application under the Freedom of Information (FOI) Act for a review of the decision of the South Western Area Health Board (the Board) to refuse you access to records relating to you and which were in the possession of Dr. Y, your former GMS (medical card) General Practitioner. Your original request to the Board was made on 11 April 2000. Please accept my apologies for the delay which has arisen in dealing with your application.

Background

In refusing to grant you access to the records requested, the Board said that it did not physically hold the records; rather, they were then held in Dr. Y's surgery. It went on to state that, in accordance with the provisions of section 6(9) of the FOI Act, it was endeavouring to access these records but, as they had not been provided, it was left with no option other than to refuse to grant you access. You applied to me for a review of this decision on 1 October 2000.

Since then, following contact by my Office with Dr. Y, the Board acquired the records and provided my Office with a copy of them. The Board is willing to give you access to the records but has reservations in relation to a small portion of the doctor's notes and has expressed the opinion that these portions should not be released to you.

Ms. Doyle of my Office wrote to advise you of this on 4 September 2001 and I am taking your response (by telephone) and your letters to both the Board and to my Office into account in reaching my decision on the matter. I am also taking into account the Board's submissions, contacts by my Office with Dr. Y, the details of the records in question and the terms of the FOI Act generally.

Scope of Review

The matter on which I must decide in this case is whether or not the Board was justified, in accordance with the provisions of the FOI Act, in its decision to refuse to grant you access to the records requested. That decision was set out in Mr. Pat Bennett's letter to you of 8 September 2000. I must also decide on whether the records, or any portion of them, are exempt from release under the terms of the FOI Act.

Findings

At the time the Board made its decision in relation to your request, it did not, as a matter of fact, have possession of the records at issue. Attempts to acquire the records had failed. As the records have since that time come into the possession of the Board, I intend to annul the decision of the Board to refuse to release them. I cannot, however, make a new decision on whether or not the records should be released without first considering whether they, or any portion of them, are exempt from release under the terms of the FOI Act.

Given that the records constitute personal information relating to yourself, and do not contain personal information relating to anybody else, there is a strong likelihood that such records will be released to you. In fact the Board accepts that, with the exception of two small extracts, the records should be released to you. As I find I agree with the Board's position in relation to the records which it accepts should be released, this decision need only focus on those extracts which the Board argues should be exempt from release. I am required by section 43(3) of the FOI Act to take all reasonable precautions in the course of a review to prevent the disclosure of information contained in an exempt record. Accordingly, at this stage I am not free to describe the contents of the extracts which the Board argues constitute exempt records. However, I am required to consider the validity of the arguments put forward by the Board in support of its position.

The Board argues that two separate exemptions apply in relation to the portion of the records in question: section 21(1)(b) and section 23(1)(c).

Section 21(1)(b) allows a head, subject to consideration of the public interest, to refuse to grant a request if access to the record concerned could, in the opinion of the head, reasonably be expected to -

"have a significant, adverse effect on the performance by the body of any of its functions relating to management (including industrial relations and management of its staff) ..."

I consider that in order to apply this exemption it is necessary (1) to identify the potential harm to the functions, covered by the exemption, which might arise from disclosure and (2) having identified that harm, consider the reasonableness of any expectation that the harm will occur.

In invoking this exemption, the Board claims that release of the extracts in question - which Dr. Y argues should not be released - would have a 'serious adverse effect' on the Board's performance of its functions in relation to the delivery of services. In particular, it argues it would undermine the working relationship between General Practitioners employed in the General Medical Service and the Board. It argues that release of records, in a case where a GMS doctor has objections to release, could jeopardise working relationships; this, in turn, could lead to less information being recorded in future because GMS doctors might opt to record less information rather than run the risk of having that information disclosed under the FOI Act. This, according to the Board, would have a deleterious effect on the delivery of services as the "recording of accurate, quality patient data is essential in both determining the appropriate treatment programmes for patients and in alerting health professionals of potential risks in certain patient management".

I accept that Dr. Y has expressed concerns about the release of certain parts of the medical record. He has presented no concrete evidence in support of his opinions, despite contact from my Office and sufficient time and opportunity to do so. I note that at least two other medical practitioners have not objected to release of their records in relation to you. In these circumstances, while I acknowledge that Dr. Y has concerns in relation to the matter, no concrete evidence has been furnished, either by Dr. Y or by the Board, to suggest that these concerns are well-founded.

I have considered whether, even in circumstances where a doctor's concerns relating to release of records are not well-founded, it may still be the case (as the Board argues) that release of such records would cause medical doctors to modify their recording of information rather than run the risk of disclosure. I accept that, were it to occur, this would constitute an adverse effect. Again, no evidence has been presented to support the view that it is reasonable to expect that such an outcome would occur. There is no basis, therefore, on which I could find that an adverse effect of the kind envisaged by the Board might reasonably be expected to occur.

In summary, I do not accept that release of the records in this case could reasonably be expected to have the adverse effects claimed. Accordingly, I find that section 21(1)(b) of the FOI Act is not applicable in this case.

The Health Board also claimed that the extracts at issue could be considered exempt from release under section 23(1)(c) of the FOI Act. Ms. Doyle of my Office wrote both to the Board and to Dr. Y on 4 September 2001 and expressed the opinion that this is not an appropriate exemption in this case. I agree with this opinion and the reasoning outlined in Ms. Doyle's letters and I do not propose to repeat the details here. Ms. Doyle, in the same letters, expressed the opinion that an exemption which might be applicable, were appropriate evidence to be presented, would be that contained in section 28(3) of the Act.

Section 28(3) 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, access to the records shall be offered via a health professional, having expertise in relation to the subject matter of the records and who has been specified by the requester. The intention of this section would appear to be to ensure that information in records which might possibly be upsetting may be given with the assistance of a health professional of the requester's choosing.

However, section 28(3) will only apply if there is sufficient evidence presented in support of the opinion that 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." As Ms. Doyle explained in her letters of 4 September 2001, 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 physical or mental health, well-being or emotional condition of the requester as a result of direct access to the record in question. She suggested, and I agree with her assessment, that the evidence available to me falls short of supporting the view that access to the records might result in a real and tangible possibility of prejudice. As no further evidence has been presented to support the application of section 28(3) in this case, I find that it does not apply to the records at issue.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act, I have decided to annul the decision of the Board and I hereby make a new decision as follows: I direct that access be granted to all of the records comprising Dr. Y's medical file in relation to you

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