Whether the HSE was justified in refusing the applicant's request for access to records relating to him on the basis of section 28(3) of the FOI Act

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

Background

On 23 July 2014, the applicant made a request for access to his medical records. The HSE refused access on 10 November 2014 on the basis of section 28(3) of the Act. On 21 November 2014, the applicant requested an internal review of this decision and on 1 December 2014 the HSE upheld its original decision. The applicant applied to this Office for a review of that decision on 26 April 2015.

I have now completed my review in accordance with section 34(2) of the FOI Act. In carrying out my review, I have had regard to the provisions of the FOI Act and to the submission made by the applicant. 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completed before the commencement of the 2014 Act shall continue and shall be completed as if the 1997 Act had not been repealed.

Scope of the Review

The scope of the review was related to whether or not the HSE was justified in refusing access to the applicant's medical records on the basis that to do so would have been prejudicial to the physical or mental health, well-being or emotional condition of the applicant.

Analysis and Findings

The HSE refused this request on the basis of section 28(3) of the Act. Section 28(3) provides for the refusal of a request for a "record of a medical or psychiatric nature relating to the requester concerned, or a record kept for the purposes of, or obtained in the course of the carrying out of, social work in relation to the requester" where, in the opinion of the head, release of the information therein "might be prejudicial to [the person's] ... physical or mental health, well-being or emotional condition."

The applicant had been advised that there were concerns around the effect that release of the records would have on his psychological, emotional or psychiatric well being. However, having reconsidered the matter, the HSE confirmed to this Office that the clinical team were withdrawing their previous objection to the release of the records to the applicant. As a result, the HSE is no longer relying on the section 28(3) exemption under the Act and there is consequently no need for me to make any findings on that claim for exemption. Rather, I will direct that a fresh decision making process be undertaken in relation to the applicant's records.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby annul the HSE's decision to refuse the request. I direct that the HSE undertakes a fresh decision making process in respect of the records and informs the applicant of the outcome in accordance with the requirements of the FOI Act. The effect of this is that the HSE is required to make a new, first instance, decision in accordance with the provisions 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 after notice of the decision was given to the person bringing the appeal.

Elizabeth Dolan
Senior Investigator