Whether the HSE was justified in its decision to refuse access to records relating to a deceased person who the applicant believed to be her grandmother under section 28 of the FOI Act

Conducted in accordance with section 34(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

 

Background

By letter dated 16 January 2014 the applicant submitted a request to the HSE for access to records relating to her grandmother, who had been an in-patient at St. Loman's Hospital, Mullingar (St. Loman's). In her letter, she provided some background information relating to her grandmother. In its decision of 5 November 2014, the HSE refused the request on the basis that no relevant records could be found.

The applicant sought an internal review of that decision and following review, the HSE varied its original decision. In a letter dated 13 March 2015, the HSE stated that St. Loman's held certain records relating to more than one person with the same name as the applicant's grandmother and that it was not possible, based on the information supplied by the applicant, to determine which of the records related to the applicant's grandmother and which related to third parties with the same name. On that basis, the HSE refused access to the records under section 28(1) of the Act on the ground that release of the records would involve the disclosure of personal information relating to third parties. On 30 March 2015 the applicant sought a review by this Office of the HSE's decision.

During the course of the review, the HSE confirmed that it had located five records relating to persons bearing the same name as the applicant's grandmother. Having examined the five records, and having regard to the information the applicant has provided both to the HSE and to this Office concerning her grandmother, I am satisfied that one of the records does not relate to the applicant's grandmother and that it is outside the scope of the applicant's request.

I note that Mr Benjamin O'Gorman of this Office informed the applicant of his view that the HSE was justified in refusing access to the four remaining records, and invited the applicant to make further comments if she disagreed with his view. The applicant emailed this Office with further information to substantiate her view that the records should be released. Accordingly, I now consider it appropriate to conclude this review by way of a formal binding decision. In conducting this review, I have had regard to the correspondence between the applicant and this Office, to correspondence between the applicant and the HSE and to correspondence between the HSE and this Office. I have also had regard to the contents of the records at issue.

In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997-2003 notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

Scope of the Review

This review is concerned solely with the question of whether the HSE was justified in its decision to refuse access to any or all of the four records it has identified as coming within the scope of the applicant's request on the basis that release would lead to the disclosure of personal information of third parties.

Analysis and Findings

Before I consider the exemption claimed by the HSE for refusing the request, it is important to note that while I am required by section 34(10) of the FOI Act to give reasons for decisions, this is subject to the requirement of section 43(3) that I take all reasonable precautions during the course of a review to prevent disclosure of information contained in an exempt record. These constraints mean that, in the present case, the extent of the reasons that I can give is limited, as is the description I am able to give of the information at issue.

Nevertheless, I can give a general description of the records. The four records relate to two separate women of the same name. In the case of the first woman, the two records comprise a copy of a death notification to the Department of Health and a copy of an entry in St. Loman's Admission Register. The two records relating to the second woman comprise a copy of an entry in St. Loman's Admission Register and an entry from a Register of Burials.

Given the nature of the records, I am satisfied that their disclosure would involve the disclosure of personal information relating to the two women. Section 28(1) of the FOI Act provides that personal information (including that relating to a deceased individual) shall not be disclosed to a third party. I find that section 28(1) applies to the records at issue. However, the protection provided by section 28(1) is not absolute and a number of other provisions within section 28 provide, in certain circumstances, for the release of personal information to a third party, including where the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the person to whom the information relates.

Furthermore, in the case of the personal information of a deceased person, section 28(6)(b) of the FOI Act and provides for the release of the records of a deceased person where the requester "is a member of a class specified" in regulations made by the Minister for Finance. The Minister has made regulations under section 28(6)(b), namely the Freedom of Information Act 1997 (Section 28(6)) Regulations 2009 (the Regulations). The Regulations provide that, notwithstanding section 28(1), a request shall be granted where the individual to whom the records relate is dead and the requester belongs to one of the classes specified. The specified classes include the spouse or the next of kin of the individual where, having regard to all the circumstances and to any relevant guidelines published by the Minister, the head considers that the public interest would, on balance, be better served by granting than by refusing the request. The Minister also published Guidance Notes for consideration by decision makers in applying the 2009 Regulations.

While the applicant has not specifically sought access to the records relating to her grandmother as the next of kin, I believe it appropriate to consider whether a right of access potentially exists under the Regulations. The published Guidance Notes provide that applicants seeking access to records as the next of kin would be required to produce evidence of their relationship to the deceased. In this case, the applicant has provided this Office with details of her knowledge of her grandmother's history, and with copies of what she considers to be the birth, marriage, and death certificates of her grandparents and a copy of her father's birth certificate.

In the case of one of the women, the personal information contained in the records matches the applicant's description of her grandmother's history, except in one very important respect. The applicant contends that her grandmother died in 1953 and has provided a copy of a death certificate in support of that contention. The date of death recorded on the records for the woman concerned is different. While it is possible that the applicant may have provided an incorrect death certificate, she is relying upon the certificate provided as evidence of her relationship with the woman concerned. Accordingly, I cannot find that the records concerned relate to the applicant's grandmother

In the case of the second woman, while the date of death contained in one of the relevant records corresponds with the date of death on the death certificate provided by the applicant, in all other respects the information contained in the records does not correspond with the applicant's description of her grandmother's history. Accordingly, I cannot find that the records concerned relate to the applicant's grandmother.

In summary, therefore, I have concluded that, regretfully, the applicant has provided insufficient information to definitively identify what records, if any, relate to her grandmother. As such, I find that a right of access in accordance with the Regulations does not exist. The only remaining issue to be considered, therefore, is whether a right of access exists in accordance with any of the other provisions within section 28 that provide for the release of personal information relating to a third party in certain circumstances.

In my view, section 28(5)(a) is the only such provision of potential application. That section provides for the release of personal information to a third party where the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the person to whom the information relates. In relation to the question of where the balance of the public interest lies, I have had regard to the judgment of the Supreme Court in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner[2011] IESC 26 [more commonly referred to as "the Rotunda Hospital case"]. In the Rotunda Hospital case, the Supreme Court drew a distinction between private interests and public interests. The comments of Fennelly J. indicate that a request made "by a private individual for a private purpose" is not a request "made in the public interest". Moreover, in the opinion of Macken J., the public interest would require "a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law".

The FOI Act recognises a very strong public interest in protecting privacy rights - in 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"). It is also worth noting that the right to privacy also has a Constitutional dimension as one of the unenumerated personal rights under the Constitution. 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. Furthermore, it should be noted that release of a record under FOI may be regarded as release to the world at large as records are released without any restriction as to how they may be used.

In this case, as it cannot be determined from the information available to this Office which of the records, if any, relates to the applicant's grandmother, I have not been made aware of any public interest in release that would outweigh, on balance, the public interest that the right to privacy of the individuals to whom the information relates should be upheld. Thus, I am satisfied that section 28(5)(a) does not apply. I find, therefore, that the HSE was justified in refusing access to the records at issue.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the decision of the HSE 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 from the date on which notice of the decision was given to the person bringing the appeal.

Stephen Rafferty,
Senior Investigator