Whether the HSE is justified in its decision to refuse access to the medical records of the applicant's deceased father on the basis that the records are exempt from release under section 28(1) of the FOI Act.

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

Background

On 16 May 2011, the applicant wrote to the HSE seeking access to the ''medical records'' of his deceased parents "in relation to all their General Practitioners". Having received no decision in relation to his request, the applicant wrote to the HSE on 21 June 2011 to request an internal review. In its decision of 5 July 2011, the HSE granted access to the medical records of the applicant's late mother. However, in the same decision of 5 July 2011, the HSE refused access to the medical records of the applicant's late father under section 28(1) of the FOI Act on the ground that the applicant's late father had informed his G.P.of his wish to change his "next of kin" to another person.

The applicant applied to this Office on 26 October 2011 for a review of the HSE's decision. In accordance with section 34(7) of the FOI Act, Mr Sean Garvey, Senior Investigator, wrote to the applicant on 13 December 2011 setting out his outline opinion on the matter in an effort to settle the review informally. The applicant's wife subsequently rang Mr Garvey on 20 December 2011 and confirmed that the case should proceed to formal review. I note that Ms Rachel Dunn, Investigator, wrote to the applicant on 21 March 2012 setting out her preliminary views on the matter and that the applicant responded on 10 April 2012 with a detailed submission. I note also that the attention of the applicant was drawn, among other things, to the Guidance Notes in relation to section 28(6) which had not been mentioned in the HSE's decision. I consider that the review should now be brought to a close by the issue of a formal, binding decision.

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

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 father under section 28(1) of the FOI Act.

Preliminary Matters

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" relevant to the request 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.

Section 43 - disclosure of information in an exempt record

I should explain 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 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 contents of the records in the course of this decision. However, as this case falls to be considered, in my view, under section 28(6)(b) of the FOI Act, 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.

The Records

The records comprise general medical notes created since April 2007 by both NoWDOC and a G.P. in relation to the applicant's late father. In addition to the general medical notes, there are also records which were held by the G.P. relating to the wishes of the applicant's late father in relation to his "next of kin" - these include a record which contains the written instructions of the applicant's late father which specifically inform his G.P. of his wish to change his "next of kin" from the applicant to other person(s) and also a record which indicates that the applicant's late father informed his G.P. of his wish that a named person other than the applicant should be contacted if anything happened to him. I am satisfied from an examination of the records in question that they all contain "personal information" as defined in Section 2 of the FOI Act and they were created by, and/or provided to, the HSE on a confidential basis within the context of a doctor/patient relationship.

Analysis and Findings

The HSE relied on section 28(1) of the FOI Act to refuse access to the medical records of the applicant's late father. 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 based its decision on the fact that the requester's late father had "informed his GP of his wishes to change his next of kin to another family member".

Section 28

Section 28(1)
Section 28(1) provides that access to a record shall be refused if access would involve the disclosure of personal information (including personal information relating to a deceased individual). The effect of section 28(1) is that a record disclosing personal information of a third party cannot be released to another person unless one of the other relevant provisions of section 28 applies, in this case section 28(2), 28(5) or 28(6).

Section 28(2)
Section 28(2) provides that Section 28(1) does not apply in certain circumstances. Having examined the records in question I am satisfied that Section 28(2) is not relevant because the information contained in the records does not relate to the applicant, the deceased did not provide prior consent to the release of the records to the applicant, the information is not of a kind that is available to the general public nor does it belong to a class of information that might be made publicly available, and disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual.

Section 28(5)
Section 28(5) provides that a record containing the personal information of a third party may be released in certain limited circumstances. The exemption could be set aside if (a) on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld, or (b) the grant of the request would benefit the individual. I do not consider that release of the information would "benefit the individual" to whom it relates (i.e. the deceased) as envisaged by section 28(5)(b) of the FOI Act.

Turning to Section 28(5)(a), the applicant refers to The Governors and Guardians Rotunda Hospital v. Information Commissioner [2011] IESC 26 where the Supreme Court (Macken J.) drew distinctions between public and private interests. Among other things, the applicant argues that the release of the records would cast a light on how a public body fulfilled its duties in relation to his late father. He argues that this is both a public and a private interest that carries considerable weight and is recognised in law and he cites a number of Court judgements in support of this view. He refers, for example, to HSE v. McAnaspie [2011] IEHC 477 where he suggests that Birmingham J. made it clear that familial interests in how the deceased was cared for do not die with him.

In his submission to this Office, the applicant identified various public interests which, he considered, would be served by the release of the particular records to him, such as:

• the public interest in individuals being able to understand the reasons for courses of action taken by a public body;
• the public interest in members of the public having information relating to the welfare, quality of care and the level of security and dignity provided for older, more vulnerable members of society;
• the public interest in ensuring the accountability for the use of public funds; and
• the public interest in favour of release to ensure that information on deceased persons is accurate;

In so far as the interests cited relate to the private interests of the applicant, I will address those arguments in the context of my consideration of the applicability of section 28(6) of the Act. Weighing against release in the consideration of the public interest test in section 28(5)(a), on the other hand, is the very strong public interest in protecting privacy rights, which is reflected both in the language of section 28 and in the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with "THE RIGHT TO PRIVACY"). Privacy rights will therefore be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy. Section 28 expressly provides for the protection of personal information relating to deceased individuals. Medical records are of an inherently private nature. Accordingly, I am satisfied that the public interest in upholding the right to privacy of the applicant's late father outweighs, on balance, the public interest in granting the request in this case and I find, therefore, that section 28(5)(a) does not apply.

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

Section 28(6)(b) of the FOI Act 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, the Freedom of Information Act 1997 (Section 28(6) Regulations) 2009 (S.I. No 387 of 2009) were made by the Minister on 23 September 2009. 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" [my emphasis]. In making the 2009 Regulations, the Minister provided a stronger case for the release, in the public interest, of personal information relating to third parties to certain categories of requester.

Article 4(2) of the 2009 Regulations defines "next of kin" as the "person or persons standing nearest in blood relationship to the individual in accordance with section 71(2) of the Succession Act 1965." 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), and they describe "next of kin" (in accordance with the Succession Act 1965) as follows:

• child or children of the person to whom the records relate, then
• parents or surviving parent of the person to whom the record relates, then
• brothers and sisters of the person to whom the record relates, then
• nephews and nieces of the person to whom the record relates, then
• the person or persons who, at the date of death, stand nearest in blood relationship to the person to whom the record relates, then
• the Minister for Finance

Having considered the relevant provisions of the FOI Act, the 2009 Regulations and the associated Guidance Notes, I agree with Ms Dunn that, for the purposes of this review, the applicant qualifies as the deceased's "next of kin" regardless of any expressed wish by his late father to change this. Therefore, notwithstanding the HSE's refusal of his request under Section 28(1), I am of the opinion that the applicant's request for access to his late father's medical records also falls to be considered in accordance with the provisions of Section 28(6) of the FOI Act, the 2009 Regulations and the relevant Guidance Notes published by the Minister for Finance.

The Guidance Notes and the Circumstances which must be considered

Section 28(6) of the FOI Act and the associated 2009 Regulations provide for the release of personal information of deceased persons to next of kin under certain circumstances. The Guidance Notes specify that certain factors should be taken into consideration in determining whether the public interest would be better served by granting than by refusing the request, including:

The confidentiality of personal information as set out in Section 28(1)of the Act

Would the deceased have consented to the release of the records to the requester when living? If so, this would strengthen the case for deciding to release after death. If, however, the deceased had refused to release the records during his/her lifetime or had left written instructions in a will or other document that the records were not to be released, there would have to be compelling reasons for overturning the deceased's expressed wishes.

The nature of the relationship of the requester to the deceased and the circumstances of the relationship prior to the death of the deceased.

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......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.

Any other circumstances relevant to the request as set out by the requester.

The applicant's late father passed away in May 2011 at the age of 97. The applicant has indicated that he requires his late father's medical records as he is grieving and would like the information for closure and also for medical reasons he would like to know the details of his father's health and medical conditions. He also expressed a number of concerns regarding the treatment and care of his late father in the years immediately preceding his death, his late father's move to another home, and the "outside intrusions and influences" that came to bear on his late father in his final years.

When considering the applicability of the public interest test set out in Section 28(5)(a), I outlined a number of public interest factors for and against release of the records at issue in this case. In the context of the expressed wish of the applicant's late father to change his "next of kin" to another person, the applicant identified the following further factors as relevant to a consideration of the public interest:

• the public interest in individuals being able to vindicate their good name;
• the public interest in exposing errors, wrongdoing or unfairness; and
• the public interest in individuals against whom concerns or allegations have been raised knowing what the concerns or allegations are and being able to respond.

Under section 28(6), however, I must also have regard to all the circumstances and to the guidance notes published by the Minister. In my view, there are a number of key factors mitigating against release of the records in this case. Firstly, the records, being medical records, are of an inherently private nature. Secondly, the HSE holds a record containing the written instructions of the applicant's late father which specifically inform his G.P. of his wish to change his "next of kin" from the applicant to other person(s). Thirdly, the HSE also holds a record which indicates that the applicant's late father informed his G.P. of his wish that a named person other than the applicant should be contacted if anything happened to him. It should be noted that the G.P. subsequently informed the HSE of her opinion that the applicant's late father was of sound mind when he made the request. Having regard to the second and third of these factors, I am not satisfied that the applicant's late father would have agreed to the release of the records at issue while he was living.

Accordingly, having regard to all of the circumstances and to the Guidance Notes published by the Minister, I am of the opinion that the applicant has not shown that the public interest favours release of his late father's information. The FOI Act recognises a very strong public interest in protecting privacy rights. Having carefully considered the matter, I find that the public interest in protecting the privacy rights of the applicant's late father is sufficiently strong that the public interest would, on balance, be better served by refusing access in this particular case. Accordingly, I find that the HSE is justified in its reliance on section 28(1) of the FOI Act to refuse access to the records at issue.

Do Other Medical Records Exist?

During the course of the review, the applicant asked if there were any other medical records prior to 2007 which were held by the HSE in relation to his late father. The HSE confirmed to this Office that their FOI decision maker had contacted the GPs who are currently practicing in the areas where the applicant's late father had resided. These GPs, who had been identified by the requester in his original request, clarified that no records relating to the deceased were held either by them or in archive records relating to retired/deceased GPs who had practiced before them.  The HSE also checked their medical card database which confirmed that the applicant's late father was registered with the G.P. whose records are the subject of this decision.

Section 10(1)(a) of the FOI Act provides that access to a record may be refused if "the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken". In cases such as this, the role of the Commissioner is to decide whether the decision maker has had regard to all the relevant evidence and to assess the adequacy of the searches conducted by the public body in looking for relevant records. The evidence in "search" cases generally consists of the steps actually taken to search for the records along with miscellaneous other information about the records management practices of the public body insofar as those practices relate to the records in question. On the basis of the information provided, the Commissioner forms a view as to whether the decision maker was justified in coming to the decision that the records sought do not exist or cannot be found. It is not normally the Commissioner's function to search for records.

In implementing the terms of the FOI Act, the Commissioner is primarily concerned with ensuring public access to extant records in accordance with the provisions of the Act. The Act does not provide for a right of access to records which ought to exist. Therefore, the Commissioner does not have the authority to require a public body to create records where such records do not exist or are not held by it. It is also outside the remit of the Information Commissioner to adjudicate on how public bodies perform their functions generally.

Given my finding that all of the medical records of the applicant's late father are in any event exempt by virtue of section 28(1), there is no necessity to deal further with section 10(1)(a).

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.

Stephen Rafferty
Senior Investigator
3 July 2012