The Commissioner found that the HSE was not justified in its refusal of access to certain records (which records have since been released in the course of the review); she further found that the FOI Acts did not give her jurisdiction to direct the HSE to make additional copies of records available to the Applicant's sister in circumstances where copies of those records had been previously released to the Applicant's legal representative.

Case Summary

Whether the HSE is justified under the FOI Acts in its decision on the Applicant's request for access to records comprising personal information concerning his treatment in a hospital. Parts of the records were withheld under section 28(1) and access to others was refused on the basis that copies had previously been released to the Applicant's legal representative.

Date of Decision: 02.03.2010

Review Application under the Freedom of Information Acts 1997 & 2003 (FOI Act) to the Information Commissioner.

Background:

This review arises from a request by the Applicant, dated 28 March 2008, to the HSE for access to records concerning his treatment in hospital. His letter stated that the records should be faxed to his sister who lives abroad and sent via registered mail to his solicitor. He gave permission to his solicitor, his sister and his nephew to access all records concerning him and stated that all correspondence should be copied to his representatives. The HSE wrote to the Applicant on 8 May 2008 asking him to provide clarification in relation to "timeframes" as, it said, all of his records had already been released on foot of previous FOI applications. On 22 May 2009, the Applicant's sister notified the HSE that all records from 15 September 2005 were required.

The HSE originally contended that no internal review application had been received (this is a prerequisite for the making of a review application to the Commissioner). However, after protracted correspondence, it informed this Office that, in fact, an internal review request of 26 June 2008 had been received but had been misfiled. When no response was received to the internal review application within the statutory period, the Applicant's sister signed a letter applying to my Office on 21 July 2008 for a review of the "deemed refusal" decision of the HSE. In the meantime, it emerged that a decision on the request had issued from the HSE by letter to the applicant's solicitor on 18 July 2008. This decision granted access to some of the records, refused parts of the records as exempt and said that all other records had already been released to the Applicant's representatives through previous FOI requests, administrative access or otherwise.

There ensued a series of contacts between the applicant's sister and my Office concerning whether or not an internal review application had been made and the issue of the Applicant's consent to his sister's application for review. Eventually, on 5 September 2008, my Office received a letter from the Applicant asking that we correspond with his sister and review the HSE's decision; the case was then accepted for review. My Office asked the HSE to re-examine the request as no internal review decision had been made and to communicate its position to the applicant. On 17 October 2008, the HSE wrote to my Office setting out its position. It said that the Applicant had been given access to his medical files through various access regimes including FOI, administrative access, Mental Health Tribunal and through his legal representative with whom, the HSE said that it had been in contact regarding the request. It expressed the view that there was no requirement to release records to several different representatives or to release records which had already been made available.

I have now completed my review in accordance with section 34(2) of the FOI Act. In conducting this review, I have had regard to the submissions of the Applicant's representatives and the submissions of the HSE as well as the contents of the records and the provisions of the FOI Acts. I consider that the case must now be brought to finality by the issuing of a formal, binding, decision.

Sequence of Investigation and Scope of the Review

In order to clarify the issues in this case, it is necessary to describe in some detail the various stages of the investigation. Not all the exchanges which occurred between the parties have been included in what follows but all relevant material has been considered and dealt with in the review.

In her letter of 7 November 2008, the Applicant's sister drew attention to the fact that on 22 May 2008 she had faxed a response to the HSE's letter of 8 May 2008 clarifying that the Applicant wished to have access to all records created after 15 September 2005. The HSE had claimed that no such clarification had been received. In submissions of 8, 11 and 17 November 2008, the Applicant's sister set out details of records which, according to the HSE schedule, had been refused under sections 12 (by reference to infringement of copyright) and 28 (personal information of persons other than the requester) of the FOI Act or withheld as being outside of the scope of the request or already released under ''administrative access''. She stressed that the drug dispensing records and drug administration records were required.

On 5 February 2009, 18 March and 1 April 2009, Elizabeth Dolan, Senior Investigator of my Office requested copies of certain records from the HSE and put preliminary views to it. Her investigation of the case initially focussed (with the permission of the Applicant's sister) on the records actually withheld by the HSE as opposed to the claims that copies of some records had already been released. She said that she proposed to deal with records created up to 21 May 2008 and considered that refusal of some of the withheld records had not been justified.

Ms Dolan wrote to the Applicant's sister on 19 March 2009 stating that if copies of records had already been given to the Applicant, his solicitor or herself, it would not be recommended that I direct the release of further copies since the FOI Act does not apply to records already available (section 46(2) refers). She said that this Office acknowledges that it is unreasonable to expect public bodies to use resources to make FOI decisions on records which the applicant already has or to have to make several copies of personal records available to various representatives of the same person. She suggested that the Applicant's solicitor might clarify what records he already holds. On 1 April 2009, Ms Dolan wrote to the Applicant's solicitor and asked him to mark on the HSE schedule which records he already has in order to help identify any further records required.

On 8 April 2009, the HSE responded to Ms Dolan's views and agreed that some of the withheld records could be released subject to deletion of personal information of third parties. It said that copies of records held in the Central Mental Hospital had previously been released to a [named] solicitor who had represented the Applicant. On 16 April 2009, the HSE indicated that it was searching for copies of prescriptions required by the Applicant. On 27 April 2009, the HSE forwarded a scheduled copy of drug administration records which it said were omitted in error from records previously released.

On 8 June 2009, the Applicant's solicitor responded to Ms Dolan's letter of 1 April 2009 acknowledging that he had received from the HSE two further sets of records on 27 and 28 May 2009. On 25 June 2009 the solicitor forwarded "a full copy'' of records which he said had previously been released directly to him by the HSE. He also said that as the Applicant's legal representative he would be given access to all Mental Health Tribunal records and "reasonable access" to the clinical file. He agreed with Ms Dolan's view that some records relating to legal hearings would attract legal professional privilege.

On 29 June 2009, Ms Dolan wrote to both the Applicant's solicitor and his sister setting out the position regarding various records released. She acknowledged that Kardex and prescription records for certain dates still appeared to be missing and advised that she was pursuing this with the HSE. On 3 July 2009, Ms Dolan spoke with the Hospital Administrator and clarified that the Kardex of 10 July 2007 (which had been identified by the Applicant's sister as missing and appeared to be of particular importance to her concerns about the drug "C") had been sent to the Applicant's solicitor on 19 December 2007 in volume 4; record 44-45, line K. Ms Dolan immediately asked the solicitor to check his copies.

On 5 July 2009, the Applicant's sister made a detailed submission in which she identified further records and parts of records which she said had not yet been released. On 24 July 2009, the HSE notified Ms Dolan that it had located drug administration records and certain prescriptions which would be released to the applicant's solicitor. It also gave details of where several Kardexes were located within previously released records.

On 13 August 2009, Ms Dolan wrote to the Applicant's sister setting out the latest developments and responding to certain queries which had arisen. Ms Dolan also wrote to the Applicant's solicitor asking him whether he could locate the records which the HSE claimed it had sent to him. On 14 September 2009, a further submission was received from the Applicant's sister in which she reiterated her view that the HSE should have sent the records directly to her by Fax in accordance with the Applicant's wishes. Ms Dolan made several efforts to contact the Applicant's solicitor to clarify the situation but was unable to reach him. Eventually, on 3 November 2009, Ms Dolan discussed the issue of the missing Kardex with the solicitor.

Attempt at Settlement

On 11 November 2009, the Applicant's sister made a submission setting out why she believes that the Kardex had never been in the solicitor's possession and that he had only inspected it during a visit to the hospital. Given the importance placed by the Applicant's sister on the Kardex records in relation to the applicant's welfare, and in an effort to settle the case, Ms Dolan asked the HSE to provide duplicate copies of the Kardex for July 2007 together with certain other Kardexes relating to drugs administered prior to November 2007. On 18 November 2009 the Hospital Administrator provided copies of the records requested and these were forwarded to the Applicant's sister and to his solicitor.

Ms Dolan asked the Applicant's sister on 7 December 2009 if, given that the Kardexes had been supplied, the case could be closed. On 8 December 2009, the Applicant's sister stated that before the file could be closed she wanted to confirm the status of the other "missing" records which the HSE had claimed were sent to the Applicant's solicitor. On 9 December 2009, Ms Dolan wrote to the HSE identifying the remaining records at issue and asking it to confirm whether or not its records showed that these had been previously released.

Remaining Records

Having regard to the above, my review in this case is concerned solely with whether the Applicant is entitled to have access to those of the following records created between 15 September 2005 and 21 May 2008:

Records as marked in submission of 5 July 2009 by applicant's sister on HSE Schedule to include:

• Medical File Volume 3, Clinical notes from 299 onwards;
• Medical File Volume 4 Clinical Notes 1- 502 and 1-24 (remainder of these created after FOI request)
• Non-clinical file Schedule 2; 1- 38 (remainder created before 15 September 2005).

Submissions

.

Findings

Preliminary Matters

It is fair to say that the investigation of this case has been lengthy and has been made more difficult by an apparent absence of trust between the HSE and the Applicant's representatives and between the Applicant's representatives themselves. While this is regrettable, it is not my role to become involved in disputes relating to the Applicant's care and I must confine my review to the question of his right of access to his personal information under the FOI Acts.

I must have regard to section 8(4) of the FOI Act, which states that "Subject to the provisions of this Act, in deciding whether to grant or refuse to grant a request under section 7, (a) any reason that the requester gives for the request, and (b) any belief or opinion of the head as to what are the reasons of the requester for the request, shall be disregarded".

This case is unusual in that the key issue is not whether particular exemptions apply under the FOI Act but whether the HSE is justified in its position that it has already released the remaining records to the Applicant's legal representative.

Section 22(1)(a)

In relation to records withheld by HSE by reference to legal issues, the appropriate section of the Act is section 22(1)(a). I am taking it that the Applicant has accepted Ms Dolan's view that confidential legal correspondence and records emanating from in camera hearings of the Courts or of the Mental Health Tribunal would qualify for exemption. Such exemption arises either under section 22(1)(a) of the FOI Act - which provides a mandatory exemption for records which would be exempt from production in a court on grounds of legal professional privilege - or under section 22(1)(b) on the basis that disclosure would constitute contempt of court. The position is that while this type of record may be available to the Applicant and his legal representatives subject to certain restrictions imposed by the Courts or by the Tribunal, release under FOI can place no such restrictions and must be taken as "release to the world at large". Furthermore, there is no public interest override in relation to the section 22(1) exemptions and I consider that the HSE is justified in its refusal of the small number of records of this type. I note in this regard that the applicant's solicitor stated in a letter to my Office that he would automatically be given access to documents and information concerning his client from the Mental Health Tribunal.

Should HSE have sent copies of the records to the Applicant's sister?

The Applicant's sister takes the view that she is entitled to receive, on her brother's behalf, all of the records held by the HSE. The HSE dealt with the request on the basis that it was appropriate for it to release records to the Applicant's legal representative. Much of the correspondence in this case has been concerned with this dispute between the parties.

It is understandable that the applicant, as a patient in hospital, would have wanted to have a suitable person represent him in the FOI process. However, instead of nominating one such person, his request stated that he gave permission to his solicitor [named], to his sister and to his nephew to access his records. He requested that notification of decision should issue to him with copies to his sister and his solicitor. His request stated that "Information is to be faxed to my sister...; "[solicitor's] contact details are:..."; [nephew's] contact details are:..."

The HSE said that it had been in regular contact with the Applicant's solicitor over a period of time and that access to records had previously been arranged administratively. It stated that it had decided that it was not appropriate to fax or post ''sensitive'' personal records to the applicant's sister who lives abroad. It was considered appropriate, according to the HSE, that the applicant instruct his solicitor in relation to providing copies of records to any other parties.

I have considered this matter and, while it is not necessary to make a formal finding on the issue, I take the view that had the Applicant's sister had been the sole person whom the Applicant authorised to have access to his records, it would have been possible for the HSE to make arrangements for her to receive any records to which the applicant was entitled under the FOI Act and to satisfy itself that the method of transmission of those records to her was secure and appropriate. However, in circumstances where the Applicant had given permission for his records to be released to his legal representative and the HSE has contact details for that person in Dublin, I am satisfied that it acted reasonably in the circumstances in releasing the records to the solicitor.

This is not, in my view, a case in which section 12 of the FOI Act has application in that the issue is not whether a particular form or manner of access can be granted in the sense of whether a copy, a transcript, a disk or an opportunity to inspect can be provided. It is not a case in which the HSE decided that the form or manner of access to the records should be other than in a copy as requested by the Applicant or where circumstances provided for in section 12(2) apply which would allow the public body to release records in a different form.

I agree with Ms Dolan's view that there is no provision in the FOI Acts requiring a public body to make more than one copy of the same records available to several representatives of a requester. I also agree with the HSE's stance that, in terms of the securing of privacy in relation to personal information, it is not generally desirable for a public body to issue several copies of a person's medical records. In circumstances where the FOI request identified a named legal representative, I believe that it was reasonable for the HSE to deal with the request by corresponding with him and for the Applicant's next of kin to make arrangements with the solicitor to fulfil the Applicant's wishes in regard to any further dissemination of the records. In terms of resources and proper administration generally, I consider that it is unreasonable to expect a public body to release more than one copy of records to the same Applicant or his representatives. This is especially so where a large number of records is involved.

Section 46 of the FOI Act provides that the Act does not apply to records which are available by virtue of an enactment or otherwise. This would tend to support the argument that it was not the intention of the legislature that FOI should apply to records to which an Applicant already has access or a right of access.

I should say also as regards records previously released by the HSE ''administratively" or otherwise outside of FOI, that section 6(8) of the FOI Act makes it clear that nothing in the Act shall be construed as restricting a public body from giving access to a record otherwise than under the Act unless this is prohibited by law. My Office clarified with the HSE that the previous administrative access was in the form of copies as opposed to making records available for inspection.

My conclusion is that I have no jurisdiction to direct the HSE to release duplicates of the records to the applicant's sister if such records have already been released to the applicant or to his legal representative.

Have the remaining records been withheld/refused?

I can appreciate the concerns of the Applicant's sister that, in view of its failure to identify and release certain records until the intervention of my Office, there is at least a possibility that the HSE omitted to send all of the scheduled records to the applicant's solicitor. However, I must review the evidence as to whether the records listed above in the scope of the review have already been released to the Applicant's solicitor.

The Applicant's sister's position is that the HSE should have sent the records to her and that my Office should direct it to do so. She alleges that her brother's solicitor ''has a history of withholding information''.

My Office made considerable efforts to establish whether the Applicant's solicitor held copies of the records which the HSE states that it released to him. Although the ''missing'' records were not among the copies which the solicitor forwarded to Ms Dolan on 25 June 2009, at no time in his contacts with Ms Dolan did he rule out the possibility that he had received further records from the HSE. Indeed, he confirmed that the copies he had were received from HSE on 28 July 2008, 27 May 2009 and 28 May 2009 but did not respond further to Ms Dolan's request that he search for the Kardex and other records which, according to the HSE, were released on 19 December 2007.

The HSE position, which it stated in writing to Ms Dolan as recently as 22 December 2009, is that the Volume 3 records from 299 to end of schedule and the Volume 4 records were included in the bundle of records sent by courier to the solicitor on 23 July 2008. A copy of the courier's invoice was furnished. The HSE also said that some records from volume 4 were held pending third party consultation and that these were sent to the solicitor by registered post on 8 August 2008. A copy of the registered post record was furnished. As regards the non-clinical file, the HSE says that these records were released to [named] then legal advisors to the applicant in FOI decisions dated 1 November 2005 and 12 November 2005, copies of which have been provided. Clearly, it would be a matter for the firm of solicitors involved to transfer any records to the Applicant's current legal representative. According to the HSE, the Clinical Notes from 1 May 2008- 21 June 2008 (not all of which fall within the scope of this review) were sent to the Applicant's solicitor on 30 June 2008 by registered post; a copy of the registered post record was provided.

The HSE's position is that it had no reason to withhold records scheduled as being released . I consider also that it is reasonable to expect that, if such a substantial number of the records scheduled were omitted from the bundle sent to the solicitor on 18 July 2008 and on the other dates, this would have been noted either at that time or since and the solicitor would have contacted the HSE about the omission. While I cannot be certain, I conclude on the balance of probability that the HSE did release to the applicant's solicitor the copies of records which it says it sent to him.

Conclusion

While I am anxious that the applicant would have the access to those records to which the FOI entitles him, I am not satisfied for the reasons set out above that I have jurisdiction under the FOI Act to direct the HSE to release further copies of the outstanding records identified by the Applicant's sister to her in circumstances where it is probable that identical records have previously been released to the Applicant's legal representative. I am satisfied that my Office's intervention has resulted in the release of records the refusal of which was not justified. I consider that it would be ultra vires for me to purport to give directions of the kind the Applicant's sister requires.

I consider that, should it transpire that copies of certain records previously released have been mislaid by the Applicant's legal representative, it is a matter for him to secure duplicate copies from the HSE if required.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby vary the decision of the HSE insofar as the additional records released in the course of the review are concerned; I affirm the HSE's decision in relation to the remaining records within the scope of the review.

Right of Appeal

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 a review must be initiated not later than eight weeks from the date of this letter.

Emily O'Reilly

Information Commissioner

02 March 2010