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

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

Background

On 04 July 2013, the applicant made an FOI request to the HSE for the "full medical and financial records relating to my late mothers deceased cousin..."held by Connolly Hospital. The HSE's decision of 12 August 2013 refused access to the records under section 28 of the FOI Act. Following the applicant's internal review application of 30 August 2013, the HSE issued an internal review decision on 17 September 2013, upholding its earlier decision. On 25 September 2013, the applicant sought a review by this Office of the HSE's refusal to release the records.

In carrying out my review, I have had regard to copies of the records of relevance to the request (which were provided to this Office for the purposes of the Commissioner's review); to the correspondence between the HSE and the applicant as set out above; to details of various contacts between this Office and the HSE; and to details of various contacts between this Office and the applicant, particularly the letter sent to him by Ms Mary Byrne, Investigator, dated 06 February 2014 (referred to hereafter as "the preliminary views letter") and his reply dated 20 March 2014. I have had regard also to the provisions of the FOI Act and, in considering the public interest at section 28(5)(a), the judgment of the Supreme Court issued in July 2011 in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner.

Scope of the Review

The scope of this review is confined to assessing whether or not the HSE was justified in refusing to release the records of the applicant's late mother's deceased cousin (the deceased). Although the applicant makes comments in his submissions regarding the manner in which Connolly Hospital dealt with the deceased when she was admitted to the hospital, I note that such matters are not within the remit of this Office or this review.

Analysis and Findings

It is relevant to note, as a preliminary matter, that section 8(4) of the FOI Act does not allow this review to have regard to any reasons as to why the applicant is seeking the withheld records (although such reasons may be relevant to consideration of the public interest). Furthermore, it is relevant to note that section 43(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. Finally, it is relevant to be aware that the Courts have found that the release of a record under the FOI Act is akin to its release to the world at large.

Sections 28(1)
As outlined in the preliminary views letter, section 28(1) of the FOI Act provides, subject to other provisions of section 28, that a public body shall refuse a request for a record where granting it would involve the disclosure of personal information about an identifiable individual (including personal information relating to a deceased individual).

I find the information in the withheld records to be personal information within the provisions of section 28(1) of the FOI Act and that, accordingly, it is exempt from release under that provision.

Section 28(2)
There are some circumstances, provided for at section 28(2), in which the exemptions at section 28(1) do not apply. Having examined the withheld details, I am satisfied that none of the circumstances identified at section 28(2) arise in this case. That is to say, (a) that the third party information contained in the records does not relate solely to the applicant; (b) that the third parties have not consented to the release of their information; (c) that the information is not of a kind that is available to the general public; (d) that the information at issue does not belong to a class of information which would or might be made available to the general public; and (e) that the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual. No argument to the contrary has been made by the applicant, and I find that section 28(2) does not apply to the withheld records.

Section 28(5)
Section 28(5) provides that a record, which is otherwise exempt under section 28(1), may be released in certain limited circumstances. The effect of section 28(5)(a) is that a record, which has been found to be exempt under section 28(1), may be released if it can be demonstrated that "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".

In response to the preliminary views letter the applicant argued that the release of the records would cast a light on what happened to the deceased and that this should be brought to the attention of the State and the HSE. The applicant also said that there is a public interest in finding out why the deceased was admitted to Connolly Hospital and also whether she was fully assessed, not just physically but mentally, by a qualified doctor in the hospital.

In the judgment referred to earlier, the Supreme Court outlined the approach that the Commissioner should take when balancing the public interest in granting access to personal information with the public interest in upholding the right to privacy of the individual(s) to whom that information relates. Following the approach of the Supreme Court, a public interest ("a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law") must be distinguished from a private interest for the purpose of section 28(5)(a). The language of section 28 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy (which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution). Accordingly, when considering section 28(5)(a), privacy rights will 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.

The FOI Act itself recognises the public interest in ensuring the openness and accountability of public bodies in the performance of their functions. However, being aware of the content of the withheld records, in particular the inherently private nature of the deceased's medical records, I do not consider that their release would further serve the public interest to such an extent that a breach of the deceased's right to privacy is justified. Having regard to all the circumstances, I find that the withheld details should not be released further to section 28(5)(a) of the FOI Act.

It is also necessary to consider whether section 28(5)(b) is of relevance. The effect of section 28(5)(b) is that a record, which has been found to be exempt under section 28(1), may still be released if it can be demonstrated that the grant of the request would benefit the third party or parties whose personal information is also contained in the records. The applicant has not made any case that the release to him of the personal information of the third party would be of benefit to that third party, nor am I otherwise aware of any reason to think that this would be the case.

I find that no right of access arises further to the provisions of section 28(5)(b) of the FOI Act.

Section 28(6)(b)
Section 28(6)(b) of the FOI Act provides that the Minister for Finance (the Minister) may make regulations for access by specified 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 and include next of kin as one of the categories of requester to whom records of deceased persons may be released. During a telephone conversation with Ms Byrne on 06 February 2014, the applicant accepted that he is not the next of kin of the deceased in accordance with the relevant regulations. He contended in his reply to Ms Byrne dated 20 March 2014, that he was acting with the full support of the next of kin, a cousin of the deceased and that he should be regarded as the qualified person and next of kin.

In its internal review decision, the HSE considered the applicant's request for access to the records of the deceased under section 28(6), the regulations and the relevant guidelines published by the Minister. Be that as it may, and while the applicant has stated that he is acting with the support of the deceased's next of kin, it remains the case that he is not the next of kin himself so he is not in one of the categories of requester set out in the regulations. Therefore, I find that no right of access arises further to the provisions of section 28(6)(b) of the FOI Act.

In summary, therefore, I find that the HSE was justified in its reliance on section 28 of the FOI Act to refuse access to the records of the deceased.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the HSE's refusal of the records of the applicant's late mother's deceased cousin.

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.

Sean Garvey
Senior Investigator