Case 100151

The Commissioner found that the HSE is justified in its decision to refuse access to the records on the basis of section 28(1), section 28(6) and the 2009 Regulations. She affirmed the decision of the HSE.

Case Summary

Whether the HSE is justified in its decision to refuse access to the mental health records of the Applicant's deceased wife on the basis that the records are exempt from release under section 28(1) of the FOI Act and the request does not fall to be granted under the FOI Act 1997 (Section 28(6) Regulations) 2009 (S.I. No 387 of 2009) (the 2009 Regulations).

Date of Decision: 01.12.2010

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

Background:

On 25 March 2010, the Applicant's solicitor wrote to the HSE seeking access to the ''medical records'' of his client's deceased wife held by a day centre which she had attended. The HSE refused access to the records on the basis of section 28 of the FOI Act in its decision of 30 April 2010. The decision was upheld in the internal review of this decision of 8 June 2010.

The Applicant applied to my Office on 28 June 2010 for a review of the HSE's decision. I note that Ms Alison McCulloch, Investigator in my Office, wrote to the Applicant on 21 October 2010 setting out her preliminary views on the matter and that the Applicant responded on 1 November 2010. I note also that the attention of the Applicant was drawn to the Guidance Notes in relation to section 28(6) which had not been mentioned in the HSE's decision.

In conducting this review, I have had regard to the submissions of the Applicant (including those made to the HSE) as well as those of the HSE. I have also carefully examined the records provided to my Office by the HSE for the purposes of this review. I have considered the relevant provisions of the FOI Act, the 2009 Regulations and the relevant Guidance Notes published by the Minister for Finance.

Conducted in accordance with section 34(2) of the FOI Act by the Information Commissioner.

Scope of Review

This review is concerned solely with the question of whether the HSE is justified in its decision to refuse access to the medical records of the Applicant's deceased wife under section 28 of the FOI Act and the 2009 Regulations.

The records

The records comprise 16 pages created in the period from July 2008 following referral of the Applicant's wife to the mental health services. At the time she gave her marital status as 'separated' and nominated a contact person other than the Applicant. The notes record the patient's background and family situation and her accounts of experiences and perceptions. It is fair to say that some parts of the records contain sensitive information which the patient gave to the doctor. The notes also include the doctor's impressions as well as medication and appointment details. Throughout the records there are references to other individuals including the applicant, the children, family members and friends. Tragically, the applicant's wife died by suicide in early 2009.

HSE's Decision

The HSE refused access to the records under section 28(1) of the FOI Act. 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. The HSE made reference to section 28(6)(b) of the FOI Act which provides that the Minister for Finance may make regulations for access by specific categories of requester to the records of deceased persons. The relevant regulations (S.I. No. 387 of 2009), were made by the Minister on 23 September 2009, replacing the previous regulations (S.I. No. 47 of 1999). The HSE decided that the public interest "would not be best served" by the release of the records.

Applicant's Smissions

The Applicant's solicitor stated in his request that his client requires the records so that he can seek compensation under the Criminal Injuries Compensation Scheme and make ''proper representation" to the Criminal Injuries Compensation Tribunal in order to obtain the necessary resources to look after his children following the loss of his wife ''as a consequence of a violent act''. He contends that this was a consequence of her having witnessed a murder.

Submissions

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Findings

Preliminary Observations

Section 8(4) and the motivation of the applicant

In the normal course, the motivation of a requester in making an FOI request is not to be taken into account in determining the request. Section 8(4) of the FOI Act 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."

The prohibition on taking account of the motivation of a requester is not absolute in that it is subject to the provisions of the FOI Act, one of which is the provision at section 28(6) regarding access to records of a deceased person. The Regulations made under section 28(6) require that regard must be had to "all the circumstances" when a decision maker is considering whether the public interest would on balance be better served by granting the request of a spouse or next of kin It may well be reasonable, in considering the circumstances and the public interest balancing test to consider the reasons why the request was made in the first place. I deal with this further below.

Section 43 - disclosure of information in an exempt record

I should explain also that while I am required by section 34(10) of the FOI Act to give reasons for my decisions, this is subject to the requirement of section 43 that I take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. I also have 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 place some limitations on what I can say about the context of the records in the course of this decision. However, I do not believe that it would be in breach of section 43 if I was to refer to certain limited information about the circumstances and background to the case to which it is necessary to have regard in considering the circumstances and the public interest balancing test and having regard to the relevant Guidance Notes.

Analysis and Findings

Section 28(6)(b) and the 2009 Regulations

The 2009 Regulations provide 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 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 2009 regulations. The Guidance Notes are the "relevant guidelines" referred to in article 4(1)(b)(iii). They state, inter alia, that Applicants claiming status as the spouse of a deceased person are required to produce evidence of the relationship. The Guidance Notes under Category Three set out examples of appropriate evidence with respect to spouses as follows:

• " 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".

Ms McCulloch put it to the Applicant's solicitor that the records appeared to relate to a period in which the parties were separated. The Applicant provided an affidavit stating that he and the deceased "lived together as husband and wife apart from small periods of separation of a few weeks at a time".He accepted that they separated for a period of six months in January 2008 but said that the separation period ended in June 2008 and that they lived together until his wife's death in January 2009. The Applicant's solicitor also provided an affidavit from the adult daughter of his client and the deceased who said "throughout my childhood and up to the time of my mother's death, my parent's lived together as husband and wife. They separated occasionally for a few weeks on and off down through the years but always came back together again".

I accept that, while the separation is one of the circumstances which I have to consider, the Applicant potentially qualifies under Article 4(1)(b)(iii) of the 2009 Regulations as the spouse of the deceased. What I have to determine is whether, on balance, the public interest, including the public interest in the confidentiality of personal information would be better served by granting the request.

The Public Interest

The Guidance Notes 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."

Among the public interest factors in favour of releasing the records are the right of access to personal information of deceased persons to ensure that the information held by public bodies is accurate. Also there is a public interest in ensuring that patients are provided with the appropriate medical attention and care while being treated in the health services. The public interest factors in favour of withholding the records include the strong public interest in protecting sensitive personal information of deceased persons and the public interest in protecting the good name and character of deceased persons. The 2009 Regulations refer to "the public interest in the confidentiality of personal information".

The records at issue in this case are psychiatric records of an intrinsically private and sensitive nature. The Guidance Notes specify that 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. The Applicant's solicitor has said his client wants to bring an action to the Tribunal and requires his late wife's medical records in order to do so. My Office invited the Applicant to address the public interest test and his solicitor's response detailed the reasons for bringing the case to the Tribunal. The application form for the Scheme of Compensation for Personal Injuries Criminally Inflicted available on the tribunal's website, requires the applicant to sign a Certificate of Authority authorising:

(1) The Doctor(s) and the Hospital(s) which treated the deceased prior to death to furnish the Tribunal at their request with a report as to the Deceased injuries and treatment.

It seems that the Tribunal has the authority to obtain medical reports from the treating doctor and hospital of the deceased in order to process an application for compensation. When Ms McCulloch put this to the Applicant's solicitor he replied that in order for his client to make a proper representation, he will need to invest a considerable amount of money to obtain the necessary care reports and that his client requires his late wife's medical records in order to make a judgement as to whether or not his late wife died as a result of the trauma she suffered arising from witnessing a criminal act. I understand that the Tribunal does not charge Applicants for obtaining any medical reports required for its investigations. Therefore, it does not appear that the Applicant's case will necessarily be disadvantaged by his not having FOI access to his late wife's medical records in his claim for compensation.

I accept that the Applicant's motivation in this case is a relevant consideration in the context of section 28(6) and the 2009 Regulations insofar as facilitating his efforts to provide for his children can be taken to be a public interest argument in favour of granting the request. I have carefully considered the possibility that release of the records might lead to improved provision for the Applicant's children. However, the issue of the compensation application is not the sole factor which I must consider in relation to the public interest. Neither can it be presumed that an award of compensation would result from release of these records.

While I have sympathy for the Applicant's situation as regards his attempts to have his children cared for, it is not the case, as alleged by his solicitor that my Office is ''quite happy to give the records to the Criminal Injuries Tribunal but not to [him]." I note his view that he would be entitled to see the records if the Tribunal was to acquire them. However, this is not the same as release under FOI nor does it follow that the public interest in the confidentiality of the deceased's personal information is weakened by the fact that the Tribunal might make the records available to the applicant or his representative for the purposes of its deliberations. It is relevant to refer here to the significant difference between accessing records under the FOI Act and accessing records through court or tribunal proceedings. In the case of 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. Indeed, I have no jurisdiction under the FOI Act to impose any conditions or restrictions on the use of the information in the records by the applicant or his solicitor. The Applicant's solicitor also contended that he does not know the name of the psychiatrist who dealt with the deceased. It may well be that he can obtain this information from the HSE in the context of the application to the Tribunal, an inquiry on behalf of his client or otherwise. However, my decision is confined to whether the records should be released under FOI.

Having considered the matter very carefully, I am satisfied that having regard to the content of the records, to all the circumstances and to the relevant guidelines published by the Minister, the public interest, including the public interest in the confidentiality of personal information, would not on balance be better served by granting this request.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the decision of the HSE to refuse the request in accordance with section 28 of the FOI Act.

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 from the date on which notice of the decision was given to the person bringing the appeal.

Emily O'Reilly

Information Commissioner

01 December 2010