Request for accounts records and records relating to the Patient's Private Property Account of the requester's aunt who is a long stay patient in a HSE facility - personal information - section 28(1) - whether the person to whom the information relates has consented to its release - section 28(2)(b) - whether release of the information would "benefit the individual" to whom it relates - section 28(5)(b).

Case Summary

Facts

Ms. X made a request under the FOI Act for all records relating to her aunt, who is a long stay patient in a HSE facility. The HSE released a number of records to her and refused access to additional records on the basis that the records concerned did not exist or could no longer be found [section 10(1)(a) of the FOI Act]. In the course of the review by the Information Commissioner, the HSE identified and collated three additional sets of records. The HSE contended that the records identified, which related to the Patient's Private Property Account of the requester's Aunt, were exempt from release under section 28(1) of the FOI Act as they contained personal information of a party other than the requester.

Decision

The Commissioner considered the relevance of section 28(2)(b) and whether the individual to whom the information relates had consented to its release. The HSE had not sought the consent of the requester's aunt to the release of her personal information; and the Commissioner accepted that it was not appropriate that it should do so. However, the HSE had treated the requester as an appropriate next-of-kin for the purposes of giving consent, on behalf of her aunt, for the collection of long-stay charges (including arrears of such charges) from the aunt's Patient's Private Property Account. In these circumstances, it seemed reasonable to conclude that the HSE should treat the requester as a next-of-kin to whom the aunt had consented to the release of her personal information. Accordingly, the Commissioner found that section 28(2)(b) of the FOI Act applied in this case and that this set aside the exemption at section 28(1).

Potential release of personal information is also provided for at section 28(5)(b) of the FOI Act, that is, in a situation where release of the information would "benefit the individual" to whom it relates. In the particular circumstances of this case - where the information at issue concerned the financial affairs of the requester's aunt - the Commissioner considered that the release to the requester of information relating to her aunt would be of benefit to the aunt. In a situation in which the aunt was not in a position to manage her financial affairs, and where the HSE was managing them on her behalf, it would appear to be to her benefit that a next-of-kin would be aware of the financial transactions being made on the aunt's behalf. Accordingly, the Commissioner found that a right of access to the records also arises under section 28(5)(b) of the FOI Act.

The Commissioner varied the decision of the HSE and directed it to provide Ms. X with access to the additional records identified in the course of the review.

Date of Decision: 28.09.2007

Our Reference: 060269

28.09.2007

Ms X

Dear Ms X

I refer to your application under the Freedom of Information (FOI) Acts 1997 and 2003, for a review of the decision of the Health Service Executive - North Western Area (the HSE) in relation to your request, dated 18 April 2006, for "all information contained in the file marked Ms. Y". I have been authorised by the Information Commissioner to conduct this review on her behalf.

Background

The FOI request in question was made in your letter, dated 18 April 2006. As the HSE failed to give a decision within the prescribed time limit, this amounted to a deemed refusal of the request. On 29 June 2006 you applied for an internal review of the HSE's deemed refusal decision. The HSE failed to give an internal review decision within the prescribed time limit and you applied, on 11 August 2006, to this Office for a review of the HSE's deemed refusal of your request. This Office requested the HSE, on 30 August 2006, to examine the matter and to inform this Office of its position or effective "decision" in this case. The HSE wrote to you on 15 December 2006 saying that it was refusing access to certain records which it believes to be exempt under section 28 of the FOI Act. In your telephone conversation, on 18 December 2006, with Mr. David Stone of this Office you indicated that you were not satisfied with the HSE'S response and you wished the review by the Office of the Information Commissioner to proceed.

In carrying out this review, I have had regard to the following matters:

• the correspondence which passed between you and the HSE in relation to this request;
• the HSE's conclusions on the matter
• the application to this Office;
• the contents of records which have been provided to this Office by the HSE for the purposes of this review;
• the correspondence/communications between the parties and this Office, and,
• the provisions of the Freedom of Information Act 1997, as amended by the Freedom of Information [Amendment] Act 2003.

Scope of Review

It is relevant to note that this review is confined to your right of access to records as specified in your original request and which were in existence on the date of your request.

I note that Mr. Desmond O'Neill, Investigator in this Office, wrote to you on 5 February 2007 setting out his understanding of the scope of this review. The HSE initially provided this Office with two files, labelled File A and File B. File A comprises seven letters between the HSE and two firms of solicitors. The file does not relate in any way to Ms. Y. From your letter of 5 January 2007 to this Office, it appears that you are aware that the correspondence refers to a small piece of land. It is my understanding that you have withdrawn this element of your appplication from this review. File B comprises 19 records relating to Ms. Y. The only deletions are the personal information of other patients. I understand that these records have been released to you (with the appropriate deletions) by the HSE and that you do not wish the Commissioner to review this portion of your application for a review.

In his letter, dated 5 February 2007, Mr. O'Neill proposed that the scope of the review would be confined to the decision of the HSE as it relates to those records, not previously released to you, namely:

• accounts records;
• records relating to the Patient's Private Property Account of Ms. Y, and
• statistical headings 11 to 25 as mentioned on the record referred to as "Particulars re patients admitted".

As you have not made any objection, I take it that you accept this approach.

In the course of the review, following correspondence with this Office, the HSE identified and collated three additional sets of records which were provided to this Office for the purposes of this review. Details of these records are set out in the Appendix accompanying this decision letter. As you will see, some of these records are outside the scope of this review as they were created after the date of your request. The issue in this review is whether or not the HSE is correct in refusing you access to those records created before the date of your request, and as set out in the Appendix, on the basis that they are exempt from release under the provisions of the FOI Act.

Findings

Preliminary Matters

Before dealing with the exemptions claimed by the HSE I should explain that while the Commissioner is required by section 34(10) of the FOI Act to give reasons for her decisions, this is subject to the requirement of section 43 that she take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. The Commissioner also has to refrain from disclosing information which an interested party contends is contained in an exempt record so as to preserve that party's right of further appeal to the High Court. These constraints mean that I can give only a limited description of the records at issue.

It is also relevant to mention that, in accordance with section 8(4)(a) of the FOI Act, in making her decision the Information Commissioner is precluded from taking into account "any reason that the requester gives for the request". Furthermore, in making my findings, I have had regard to the provisions of section 34(12)(b) of the FOI 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 on the HSE the onus of showing, to the satisfaction of the Commissioner, that the decision to refuse access to the records at issue in this case is justified under the provisions of the FOI Act.

Whether Further Records Exist: Section 10(1)(a)

The HSE maintains that, other than those records identified in the Appendix to this decision, no other records of relevance to your request can be found at this time. This is essentially a claim for exemption under section 10(1)(a) of the FOI Act. Section 10(1)(a) provides as follows:

"(1) A head to whom a request under section 7 is made may refuse to grant the request if - (a) the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken."

The issue which must be addressed in this part of the review is whether the HSE's decision to refuse access to records - other than those identified in the Appendix - is justified. The Information Commissioner considers that her role in this type of case - where a public body has decided that the records requested cannot be found or do not exist - is one of reviewing the decision of the public body and deciding whether that decision was justified. This means that, as in any other review, she must have regard to the evidence available to the decision maker and the reasoning used by him or her in arriving at the decision. The Information Commissioner's role is to decide whether the decision maker has had regard to all the relevant evidence and if so, whether he or she was justified in coming to his/her decision in the case.

Following contact from this Office, the HSE provided details of the searches made to locate all the records relating to your Aunt. I do not intend to set out in detail the efforts made by the HSE to locate additional records but I am satisfied with the accounts of the searches supplied to this Office. It is the HSE's position that any additional records sought by you either do not exist or cannot now be found. Having reviewed the steps taken by the HSE to locate the records which you seek, I now consider that all reasonable steps have been taken to ascertain the whereabouts of such records. Accordingly, while fully acknowledging the importance to you of the records requested, I am satisfied that it is reasonable to conclude, in the light of the efforts made to locate them, that, regrettably, no further records can be found. I find, therefore, that the HSE's decision to refuse your request for records - additional to those identified in the Appendix - is justified by reference to section 10(1)(a) of the FOI Act.

Section 28

The Board contends that the records identified in the Appendix are exempt from release under section 28(1) of the FOI Act. Section 28(1) of the FOI Act provides:

" Subject to the provisions of this section, a head shall refuse to grant a request under section 7 if, in the opinion of the head, access to the record concerned would involve the disclosure of personal information ...".

In the circumstances of this review, it is not necessary to probe the extent to which personal information is contained in the records. I accept (and have seen from my examination of the records in question) that the records at issue in this case do disclose personal information about your aunt.

The FOI Act provides strong protection for personal information where it is sought by a person other than the person to whom the information relates. Such information is normally exempt from release under section 28(1) of the FOI Act. There is a limited number of exceptions to this provision of the FOI Act. One exception is where the person to whom the information relates has consented to its release, as provided for at section 28(2)(b) of the FOI Act. I note that the HSE has not asked your aunt if she consents to the release to you of her personal information; and I accept that it may not be appropriate that it should do so. However, I note that the HSE has treated you as an appropriate next-of-kin for the purposes of giving consent, on behalf of your aunt, for the collection of long-stay charges (including arrears of such charges) from her Patient's Private Property Account. In these circumstances, it seems reasonable to conclude that the HSE should treat you as a next-of-kin to whom Ms. Y has consented to the release of her personal information. Accordingly, I find that section 28(2)(b) of the FOI Act applies in this case and that this sets aside the exemption at section 28(1).

Potential release of such information is also provided for at section 28(5)(b) of the FOI Act, in a situation where release of the information would "benefit the individual" to whom it relates. I can see in the particular circumstances of this case - where much of the information now at issue concerns your aunt's financial affairs - that the release to you of information relating to your aunt would be of benefit to her. In a situation in which, as I understand it, she is not in a position to manage her financial affairs and where the HSE is managing them on her behalf, it would appear to be to her benefit that a next-of-kin would be aware of the financial transactions being made on your aunt's behalf. Accordingly, I find that a right of access to the records also arises under section 28(5)(b) of the FOI Act.

Other issues

While it forms no part of my binding decision, I can tell you that the HSE has satisfied me with its explanation in relation to: statistical headings 11 to 25 as mentioned on the record referred to as "Particulars re patients admitted".

The HSE says that the reference to items 11 to 25 on the admission form is a reference to a pro-forma admission form which also comprises a list of diagnoses, numbered 11 to 25. This attachment was not included in the file and therefore has not actually been omitted as it never formed part of Ms. Y's file.

In relation to:

^{The entries in the nursing notes during 1987 which refer to "goes to bank" and "got money from bank for cigs".}

The HSE says that enquiries with the key staff involved have established that prior to the year 2000 (when your aunt became eligible for the state non-contributory old age pension) Ms. Y would have had no means of support and, accordingly, would have been paid a small amount of pocket money from the then Health Board's destitutes' fund. This would not have formed part of her Patient's Private Property Account but would have been disbursed on request/when considered appropriate by "visiting the bank" (i.e. by an administrator in the hospital).

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act, 1997 (as amended), I hereby vary the decision of the HSE and I direct the HSE to release certain of the additional records as set out in the Appendix, accompanying this decision and which forms part of it.

Appeal Rights

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 eight weeks from the date of this letter.

Yours sincerely

Fintan Butler
Senior Investigator