The Senior Investigator found that the Hospital's decision to refuse access to the records sought is justified under section 28(1) of the FOI Act and affirmed the decision accordingly.

Case Summary

Whether the Hospital's decision to refuse access to a deceased person's records is justified under the FOI Act and the relevant regulations.

Date of Decision: 02.06.2010

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

Background:

In a request dated 10 March 2009, solicitors, acting on behalf of the Applicant, made a request under FOI seeking access to the medical records of the late Ms. Y, who died at the Hospital in 1999. According to the solicitors, the applicant is the widow or next of kin of the late Mr. X, who was a partner of the late Ms. Y for many years in the 1980s and perhaps up to the early 1990s.

The Hospital refused the request under section 28(1) of the FOI Act, because no written authorisation from Ms. Y's next of kin had been submitted. In a letter dated 2 October 2009, the Applicant's solicitors applied on her behalf to this Office for a review of the Hospital's decision. With the application for review, the Applicant's solicitors submitted a signed statement by Mr. Y, the alleged husband of the late Ms. Y, giving his consent to the Applicant's request for access to the medical records of his late wife. No evidence of Mr. Y's claimed relationship with the late Ms. Y was included, however.

In a letter dated 29 April 2010, Ms. Melanie Campbell, Investigator, advised the Applicant's solicitors of her preliminary view on the matter. She considered that, even assuming that Mr. Y was the husband of the late Ms. Y, the Applicant was not a qualifying relative under the relevant regulations; therefore, there was no statutory or regulatory basis for releasing the late Ms. Y's medical records to her notwithstanding Mr. Y's consent. Alternatively, Ms. Campbell considered that the public interest would not be better served by granting than by refusing the request in light of the circumstances of the case.

In reply, the Applicant's solicitors indicated that they wished for the matter to proceed to decision. Accordingly, with the authority delegated to me by the Commissioner, I have now completed my review in accordance with section 34(2) of the FOI Act, and I have decided to conclude the matter by way of a formal, binding decision.

Conducted in accordance with section 34(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, Office of the Information Commissioner (authorised by the Information Commissioner to conduct this review).

Scope of the Review

My review in this case is concerned solely with the question of whether the Hospital's decision to refuse your request for access to the medical records of the late Ms. Y is justified under the FOI Act and the relevant regulations pertaining to the records of deceased persons. As Ms. Campbell noted in her preliminary view, a review under section 34 of the FOI Act is de novo, which means that it is based on the circumstances and the law as they pertain at the time of the review.

Submissions

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Findings

Section 28(1) provides that a public body shall refuse to grant access to a record where access would involve the disclosure of personal information relating to a third party, including personal information relating to a deceased individual. Section 28(2)(b) states, however, that the personal information exemption does not apply if "any individual to whom the information relates consents, in writing or such other form as may be determined, to its disclosure to the requester". Moreover, pursuant to section 28(6)(b) of the FOI Act, access to records of deceased persons are now governed by the regulations at S.I. No. 387 of 2009, which were issued by the Minister for Finance on 23 September 2009 and have replaced the previous regulations relating to records of deceased persons, S.I. No. 47 of 1999.

In pertinent part, the new regulations state at article 4(1)(b)(iii) that, subject to the other provisions of the FOI Act, a request for access to records of a deceased individual shall be granted to "the spouse or the next of kin of the individual where in the opinion of the head, having regard to all the circumstances and to any relevant guidelines published by the Minister, the public interest, including the public interest in the confidentiality of personal information, would on balance be better served by granting than by refusing the request". Article 3(2) of the regulations, in turn, defines "spouse" to include "(a) a party to a marriage that has been dissolved, being a dissolution that is recognised as valid in the State, or who is living apart from his or her wife or husband pursuant to a deed of separation, and (b) a man or woman who was not married to but cohabited as husband and wife, as the case may be, with the deceased individual".

The Minister also published Guidance Notes for consideration by decision makers in applying the new regulations. The Guidance Notes are the "relevant guidelines" referred to in article 4(1)(b)(iii), and they state that applicants claiming status as the spouse or next of kin of a deceased person are required to produce evidence of the relationship. The Guidance Notes set out examples of appropriate evidence with respect to alleged spouses and partners as follows:

"A. Spouses/former spouses - An affidavit or other acceptable proof showing the marriage certificate and stating the circumstances at the date of death of the deceased i.e. living together in a spousal relationship, separated and the length of the separation, whether legal proceedings for separation/divorce had been instituted. Copies of any separation agreements, court orders, divorce decrees, should be lodged.

B. Partners/former partners - The requester should establish that he or she has lived with and shared the life of the deceased person for a significant period of time. It is suggested that four or more years might be a guideline in this regard. Proof of living with and sharing the life of the deceased should be done by way of affidavit or other acceptable proof setting out such facts as are relied upon in support of his/her claim to be the partner of the deceased. The onus is on the requester to prove the facts on which he or she bases his or her claim. Such proof could include:

• evidence of unequivocal acts of sharing the life of the deceased for a significant period;
• evidence of living with the deceased on a continuous basis as opposed to occasional social visits; and
• evidence of payment of outgoings relating to a shared family home.

Any element of such evidence, considered on its own, may not suffice to establish that the requester was the partner of the deceased. The matter should be decided by the decision maker on consideration, firstly, of all the facts established by the requester and secondly, on consideration of the views of other relevant parties whose views have been obtained through the consultation process referred to [at section 3.2 of the Notes]. The weight to be given to the different facts established and views obtained is a matter for the decision maker and each such case must be dealt with on its merits on a case by case basis."

The Guidance Notes also specify certain factors to be taken into consideration in determining whether the public interest would be better served by granting than by refusing the request, including:

• "Would the release damage the good name and character of the deceased? The effect of release of the records on the good name and character should be considered e.g. whether disclosure of the information would , without just cause or excuse, lower the standing of the person in the eyes of right thinking persons or leave the person open to ridicule.
• The nature of the relationship of the requester to the deceased and the circumstances of the relationship prior to the death of the deceased. For example, if the requester is a spouse, issues such as whether the parties were living together, or had been separated or engaged in legal proceedings, and whether the relationship was amicable or acrimonious would be relevant. The claims of a cohabitating spouse would in most circumstances be stronger than those of a non-cohabitating spouse. In the case of a former spouse or former partner seeking access to records of the deceased, in the normal course, only records concerning the period of his or her marriage or relationship should be considered for release.
• The nature of the records to be released. If the record is inherently private, and of a very sensitive nature, then it is likely not to be released unless there are compelling reasons for so doing. Such reasons might include the release to a blood relative of records that show a hereditary medical condition. In relation to medical records, due regard should be had to the confidentiality of medical records in accordance with the Irish Medical Council Guide to Ethical Conduct and Behaviour. Records containing joint personal information of both the requester and the deceased might, subject to other considerations, fall to be released."

As noted by Ms. Campbell, the original request in this case was based on the applicant's status as the next of kin of the late Mr. X, who allegedly had been a partner of the late Ms. Y many years prior to her death. On appeal to this Office, however, the Applicant's solicitors have sought to base their client's entitlement to Ms. Y's medical records on the written consent of Ms. Y's alleged husband, Mr. Y.

I agree with Ms. Campbell that, even assuming that the relationships exist or existed as claimed, neither section 28(2)(b) nor article 4(1)(b)(iii) is applicable in this case. The Applicant is not seeking access to records relating to Mr. Y; therefore, Mr. Y's written consent is not relevant for the purposes of section 28(1) of the Act. If access to the late Ms. Y's records is sought under section 28(6)(b) on the basis of Mr. Y's status as her spouse, then Mr. Y must make his own FOI request in order to establish the required relationship under article 4(1)(b)(iii) of the regulations.

In any event, like Ms. Campbell, I consider that the public interest would not be better served by granting than by refusing the request. Under FOI, records are released without any restriction as to how they may be used and, in effect, FOI release is regarded as release to the world at large. The records at issue in this case are of an intrinsically private nature. The Applicant does not claim that she had any direct relationship with the late Ms. Y; rather, her request was initially based on the alleged relationship of her deceased relative with Ms. Y, a relationship which admittedly had ceased many years prior to the death of Ms. Y. The Applicant now seeks to base her request on the written consent of the husband of the late Ms. Y, but neither the alleged husband of Ms. Y nor the deceased relative of the Applicant is referred to as a spouse, partner, or next of kin in the medical records concerned. I do not think that I would be revealing exempt information in violation of section 43(3) of the FOI Act by observing that the medical records indicate that Ms. Y considered herself as having a closer personal relationship with other individuals than with any current or former spouse. I consider that the release of the medical records under FOI would not be appropriate in the circumstances.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the decision of the Hospital in this case.

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 an appeal must be initiated not later than eight weeks after notice of the decision was given to the person bringing the appeal.

Elizabeth Dolan

Senior Investigator

02 June 2010