Case 031001. Request for access to records dealing with the birth (in 1906) of the requester's late father and information relating to her grandmother at the time of the birth - whether release would involve a breach of confidentiality - section 26(1)(a) - whether release would involve disclosure of personal information about a deceased person - section 28(1) - whether a right of access arose under regulations made by the Minister under section 28(6) of the FOI Act (i.e. S.I. 47 of 1999)

Case Summary

Facts

The requester in this case was attempting to gather information about her deceased father (born 1906) and his family. The father spent much of his childhood in an institution and not a lot was known about his background. Ms. X applied to the National Maternity Hospital, Holles Street, where he was born, for information on whether her father had siblings and regarding the age of her grandmother when her father was born. The Hospital refused her any information on the grounds of privacy (s. 28) and confidentiality (s. 26). The Hospital upheld this decision following internal review. At no stage did the Hospital advert to the specific provisions in the FOI Act governing the release of records relating to deceased persons (section 28(6)) nor did it deal with the public interest provisions in section 26 and section 28 which must always be considered where section 26(1)(a) or section 28(1) are invoked as the basis for refusing an FOI request. .

Decision

In the course of the review, the public interest provisions and the provision at section 28(6) were drawn to the Hospital's attention. While the Hospital made a submission in general terms it did not address the application of the provisions of 28(6) nor the public interest provisions in section 26 and section 28. The Hospital also contended that the record was exempt from release on the basis of the provisions of section 21 and refused to release the record (only one relevant record existed) to Ms X.

Having regard to SI 47 of 1999, made by the Minister for Finance under section 28(6) of the FOI Act, the Commissioner considered whether a right of access arose to the requester under the third category of requester specified in the regulations i.e. was she such a person to whom it was considered "appropriate" to release the records. The Commissioner referred to the Guidance Notes issued by the Minister and their suggestions as to factors that a public body should consider in deciding whether release of such records is appropriate in the circumstances. For example, a balance must be struck between protecting the rights to privacy of the deceased and the right of the requester to gain access to the records. The nature of the records should be considered, as well as the wishes of the deceased, if known, in relation to the release of his or her records.

The Commissioner did not agree with the Hospital's contentions.The Commissioner identified a number of circumstances which she believed were reasonable to take into account in this particular case. Having regard to these circumstances, she found that the requester should be regarded as a next of kin to whom it was appropriate, "having regard to all the circumstances and to any relevant guidelines drawn up and published by the Minister" to release the medical records of the late Mr Y. The Commissioner also commented that there may be cases where, due to circumstances prevailing, a requester who is a close next of kin may not be regarded as a person to whom it was appropriate, "having regard to all the circumstances and to any relevant guidelines drawn up and published by the Minister" to release the medical records of a deceased person.

Date of Decision: 05.02.2004

Our Reference: 031001

05.02.2004

Ms. X

Dear Ms. X

I refer to your application under the Freedom of Information (FOI) Acts for a review of the decision of the National Maternity Hospital (the Hospital) on your FOI request of 9 July 2003. The Hospital's reference FOI/272/03 refers.

Background

In your FOI request of 9 July 2003 you sought access to information regarding "the age of my grandmother B Y (nee Z) and if my father C Y had any siblings". The Hospital, in its initial decision on 8 August 2003, refused access to the record on the grounds that the record was exempt under sections 26 and 28 of the FOI Act. You sought, on 19 August 2003, an internal review of the Hospital's initial decision. The Hospital's internal review decision issued on 15 September 2003 and affirmed the initial decision; it clarified that the refusal was justified by reference to section 28(1) and section 26(1)(a) of the FOI Act. On 23 September 2003 you applied to my Office for a review of the Hospital's decision. In its submission dated 24 October 2003 the Hospital said that access was refused on the basis of sections 21, 26(1)(a) and 28(1) of the FOI Act. The Hospital also adverts to the fact that the individuals to whom the record relates are all now deceased. In its final submission to this Office, dated 27 January 2004, the Hospital again contends that the record is exempt under section 28(1) of the FOI Act.

In reviewing this case, I have had regard to the following matters:

• the correspondence which passed between you and the Hospital in relation to the request;
• the Hospital's conclusions on the matter;
• the application to this Office;
• the contents of the record in question (a copy of which has been provided to this Office by the Hospital for the purposes of this review);
• the correspondence between the Hospital and this Office, and,
• the provisions of the FOI Act generally.

All references in this decision to the "FOI Act" are to be taken as references to the Freedom of Information Act, 1997 as amended by the Freedom of Information (Amendment) Act, 2003.

Scope of Review

The sole issue which requires to be decided in this review is whether or not the Hospital is correct in deciding not to grant access to the record in question on the basis that it is exempt from release under the provisions of the FOI Act.

Findings

Preliminary Matters

Before dealing with the exemptions claimed by the Hospital, I should point out that neither the original decision maker, nor the decision maker at internal review stage, dealt with the specific provisions governing the release of records relating to deceased persons [section 28(6) of the FOI Act]. Neither did they deal with the public interest provisions in section 26 and section 28 which must always be considered where section 26(1)(a) or section 28(1) are invoked as the basis for refusing an FOI request. I regard this as a significant omission and a serious defect in the decision making process in this particular case. Given that requests for personal information are likely to constitute a major proportion of the overall number of FOI requests received by the Hospital, one would expect that the Hospital would by now be fully conversant with these fundamental provisions in the FOI Act. I take the view that requesters - who cannot be expected to have a detailed knowledge of what is a complex and technical piece of legislation - are entitled to expect that FOI decisions will reflect comprehensively the relevant provisions of the Act in a way which will allow the requester take a fully informed view on the decision. Regrettably, this did not happen in this case. Indeed when the section 26 and 28 provisions, mentioned above, were drawn to the Hospital's attention in the course of this review, it made a submission in general terms but not in relation to the application of these provisions in your case.

I should also draw attention to section 34(12)(b) of the Act which provides that, in a review, "a decision to refuse to grant a request under section 7 shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified."

This places the onus on the Hospital of showing, to my satisfaction, that the decision to refuse access to the record at issue in this case is justified under the provisions of the FOI Act.

According to the Hospital, the only record of relevance to your request is an extract from the Delivery Ward Register which deals with the birth of your father. Based on previous experience of dealing with the Hospital, and given that your father was born in 1906, I see no reason to believe that the Hospital holds additional records of relevance.

I deal below with each of the provisions claimed as providing a basis for exempting the record in question.

Section 21

Section 21 of the FOI Act provides:
"(1) A head may refuse to grant a request under section 7 if access to the record concerned could, in the opinion of the head, reasonably be expected to-(a) prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of a public body or the procedures or methods employed for the conduct thereof,(b) have a significant, adverse effect on the performance by a public body of any of its functions relating to management (including industrial relations and management of its staff) or(c) disclose positions taken, or to be taken, or plans, procedures, criteria or instructions used or followed, or to be used or followed, for the purpose of any negotiations carried on or being, or to be carried on by or on behalf of the Government or a public body(2) Subsection (1) shall not apply in relation to a case in which in the opinion of the head concerned, the public interest would, on balance, be better served by granting than by refusing to grant the request under section 7 concerned. "

In arriving at a decision to claim a section 21 exemption, a decision maker must, firstly, identify the potential harm to the functions covered by the exemption that might arise from disclosure and, having identified that harm, consider the reasonableness of any expectation that the harm will occur. The test of whether the expectation is reasonable is not concerned with the question of probabilities or possibilities. It is concerned simply with whether or not the decision maker's expectation is reasonable.

The Hospital says that it believes that release of the record would be damaging to its ability to collect medical histories from its patients in the future. I take this to be an identification of the potential harm to the functions covered by the section 21 exemption. However, the Hospital has said nothing at all to support the view that it is reasonable to conclude, in relation to this case, that this harm will occur. Given the age and content of the record concerned, given the status of the requester, given that the Oireachtas envisages that personal information of deceased persons will be released in certain circumstances (including to a family member), I can see no basis to support the application of section 21 in this case. Accordingly I find, having regard to the provisions of section 34(12)(b), that the Hospital has not justified its decision to refuse access under section 21 and in these circumstances I find that this exemption does not apply in this case.

Section 26(1)(a)

It is the Hospital's position that the records are exempt under section 26(1)(a) of the FOI Act. Section 26(1)(a) states that:

"Subject to the provisions of this section, a head shall refuse to grant a request under section 7 if-(a) the record concerned contains information given to the public body concerned in confidence and on the understanding that it would be treated by it as confidential (including such information as aforesaid that a person was required by law, or could have been required by the body pursuant to law, to give to the body) and, in the opinion of the head, its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons and it is of importance to the body that such further similar information as aforesaid should continue to be given to the body,....".

Once again, the Hospital has failed to make any substantial argument as to why this particular exemption applies.

In a situation where a public body fails to show to my satisfaction that its refusal of a request is justified, I will not generally look beyond that failure and will direct the release of the records in question. However, where I am aware that the release of records might affect the interests of another party, I will consider whether the records are otherwise exempt; this is notwithstanding the failure of the public body to justify its decision. In this case, and in the light of my finding below in relation to section 28 of the FOI Act, I consider that the interests of any third party have been considered. In any event, even if it were established that the exemption at section 26(1)(a) did apply, it would then be necessary to consider the public interest test provided for at section 26(3) of the FOI Act. Given the age and content of the record and given the status of the requester, any dilution of confidentiality would in these circumstances be minimal; on the other hand, there is an acknowledged public interest in facilitating individuals in acquiring all relevant knowledge on their family background particularly where a requester, or a close family member, has been in the care of the State as a child.

However, in the circumstances of this case it is not necessary for me to look beyond the failure of the Hospital to justify its reliance on section 26(1)(a) of the FOI Act. Accordingly, I find that this particular exemption does not apply.

Section 28 - Personal Information

Section 28(1) of the FOI Act provides that personal information (including that relating to a deceased individual) shall not be disclosed to a third party. This is, potentially, the most appropriate provision to be relied upon by the Hospital in its decision to refuse the request. However, the protection provided by section 28(1) is not absolute and a number of other provisions within section 28 provide, in certain circumstances, for the release of personal information to a third party. One of these provisions is that contained at section 28(5)(a) which provides for the release of personal information on the basis of a public interest test. More specifically, however, section 28(6)(b) of the FOI Act provides for the release of the records of a deceased person where the requester "is a member of a class specified" in regulations made by the Minister for Finance. The Minister has made regulations under section 28(6)(b) in the form of Statutory Instrument No. 47 of 1999, referred to hereafter as "the Regulations".

Statutory Instrument No. 47 of 1999 The Regulations provide that, notwithstanding section 28(1), a request shall (my emphasis) be granted where the individual to whom the records relate is dead and "the requester concerned belongs to one of the following classes of requester:(i) a personal representative of the deceased acting in due course of administration of his or her estate ...(ii) a person on whom a function is conferred by law in relation to the individual or his or her estate acting in the course of the performance of the function, and(iii) 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 this case, it appears you do not fall into either of the categories at (i) or (ii) above nor have you argued that you do. Accordingly, the issue is whether you belong within the category at (iii) above. Category (iii) may be problematic in that, whereas section 28(6) empowers the Minister to prescribe classes of persons to whom the records of a deceased person may be released, in this instance it appears the Minister has prescribed classes of persons by reference to a test of being "appropriate having regard to all the circumstances..." and to guidelines which do not form part of the statutory instrument itself. Whether this is a valid prescription of classes, as envisaged in the primary law, may be open to question.

In any event, I find that you are a next of kin of the deceased and, potentially, belong to a class of requester to whom the record in question may be released. In this respect, I note that you have already supplied the Hospital with birth and baptismal certificates for C Y and your own birth certificate.

In the context of category (iii) above, the Minister for Finance has published"Guidance Notes on Access to records by parents/guardians / Access to records relating to deceased persons prepared under section 28(6) of the Freedom of Information Act, 1997". While there must be some question as to whether these Guidance Notes constitute statutory criteria which are required to be taken into account, they do represent a useful tool in dealing with the difficult issue of what is meant by the term "appropriate in all the circumstances" in sub-paragraph (iii) above.

The Guidance Notes suggest a number of factors which a public body should consider in each case when deciding if release of the records is appropriate in the circumstances. They provide, among other things, that the decision maker must balance the protection for the personal information of the deceased, as set out in section 28(1) of the Act, against the right of the requester to access the records. They also provide that the nature of the records should be considered, i.e. if the records are inherently private and of a very sensitive nature then they are not likely to be released unless there are compelling reasons for doing so. Another consideration identified in the Guidance Notes is whether the wishes of the deceased, in relation to release of his/her personal records, are known. The Guidance Notes suggest that where the deceased has let it be known that he/she would not consent to the release of personal records "there would have to be compelling reasons for overturning the deceased's expressed wishes".

The Hospital failed in its first decision, and subsequently in its internal review decision, to advert to the relevance of section 28(6) and of the Regulations. In its submissions the Hospital made the following general observations:

• that the doctor-patient relationship is inherently private and based on confidence;
• following the death of a patient, it is reasonable to assume that his/her privacy rights will continue to be respected;
• any public perception that medical records may be released to others, following the death of the patient, may inhibit the provision of relevant medical information by patients generally.

In relation to the general points made by the Hospital, as outlined above, it is clear from section 28(6)(b) of the FOI Act that the Oireachtas envisaged that the personal records of deceased persons might be made available to specified classes of persons. It is equally clear that where such records are provided to specified classes of persons, this will be done notwithstanding the underlying protection for the personal information of the deceased, as set out in section 28(1) of the Act, and notwithstanding any duty of confidence which may be owed to the deceased person. The Regulations made under section 28(6)(b) seek to moderate the impact of such breaches of the protection of personal information and of confidence. They do so by attempting to specify the classes of persons, to whom such records may be released, by reference to "all the circumstances and to any relevant guidelines drawn up and published by the Minister". In the ordinary course, and in the present context, one example of a specified class of person is a next of kin. However, the effect of the Regulations appears to be that a next of kin constitutes a specified class of person only where some other unspecified conditions are met. Whereas this is not a particularly satisfactory provision nevertheless, as Information Commissioner, it is my function to seek to apply it as best I can. This requires the striking of some reasonable balance between, on the one hand, the underlying protection of the personal information of the deceased person as well as any duty of confidence owed to the deceased person and, on the other hand, the right of access provided for in the legislation.

There are a number of other relevant circumstances which I believe it is reasonable to take into account. These include the following:

1. the fact that the record in question is almost 100 years old significantly reduces the extent of invasion of privacy which release of the record might entail;
2. the fact that there is no evidence to suggest that neither your late grandmother nor your late father would have objected to the release to you of their personal records; and,
3. the fact that, whereas medical records are generally sensitive records, there is nothing in these particular records of unusual sensitivity and, on the face of it, very little of which you not already aware, at least in general terms.

Taking all of these together, I find the circumstances of this particular case are such that you should be regarded as a next of kin to whom it is appropriate, "having regard to all the circumstances and to any relevant guidelines drawn up and published by the Minister", to release the record in question. I would like to stress that this finding is very much based on the individual circumstances of this case. I should also stress that I accept that there are instances in which, because of the circumstances prevailing, a requester who is a close next of kin may not be regarded as a person to whom it is appropriate, "having regard to all the circumstances and to any relevant guidelines drawn up and published by the Minister", to release the medical records of a deceased person.

Given my finding that you are an appropriate person for the purposes of the Regulations, the exemption contained at section 28(1) does not, therefore, apply. As I have already found that section 21 does not apply and that section 26(1)(a) does not apply, the effect of these findings is that your request should be granted.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act, 1997 as amended, I hereby annul the decision of the National Maternity Hospital to refuse you access to the record in question. I direct instead that the record be released to you in the form of a photocopy.

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 eight weeks from the date of this letter.

Yours sincerely

Emily O'Reilly
Information Commissioner