Whether the HSE was justified in its decision to refuse access to electrocardiograph recordings of the applicant's child's heartbeat prior to the child's birth

Conducted in accordance with section 22(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

In his original request of 5 November 2014, the applicant sought access to the electrocardiograph recordings of his deceased child's heartbeat. In its original decision of 14 November 2014, the HSE refused the request on the basis that the information sought was joint personal information of the baby and the mother and written consent from the mother would be required for the information to be released. In response to the applicant's internal review request, in which it was suggested that a redacted version of the record could be released, the HSE affirmed its original decision. The applicant submitted an application for review to this Office by letter dated 11 June 2015.

In conducting this review, I have had regard to the submissions of the applicant, to the submissions of the HSE, to the content of the record and to the provisions of the FOI Acts. I have decided to conclude the review by making a formal, binding decision.

Scope of Review

The review relates solely to whether the decision of the HSE to refuse access to the record sought was justified.

Preliminary Matters

Section 18
I should explain the approach to the granting of access to parts of records. Section 2 of the FOI Act defines "record" as including "anything that is a part or a copy" of a record. Section 18 of the FOI Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading.

Analysis and Findings

Section 37
Section 37(1) of the FOI Act provides that access to a record shall be refused if access would involve the disclosure of personal information. In a situation where a record or part of a record contains personal information relating to the requester, which is closely intertwined with personal information about another party (or parties), and where it is not feasible to separate the personal information from that relating to the other party (or parties), it can be described as joint personal information. Section 37(7) further provides for the refusal of a request where the body considers that access to the record would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to an individual other than the requester. The FOI Act defines the term "personal information" as information about an identifiable individual that either (a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual or (b) is held by an FOI body on the understanding that it would be treated by the body as confidential. The definition also contains a list of 14 specific types of information including information relating to the medical history of an individual.

The HSE refused access to the record on the basis that it is joint personal information. The record is the cardiotocography (CTG) trace showing the heartbeat of the applicant's child prior to birth. CTG is a form of monitoring used before or during childbirth. The CTG trace shows the foetal heartbeat and contractions of the uterus i.e information of the mother and the baby. I am satisfied that the information at issue is personal information.

The applicant suggested that a redacted version of the record be released showing only the foetal heartbeat. The HSE stated in its original decision that the CTG trace contains both the mother's and baby's information and must be read together to make sense. I have considered the contents generally of a CTG trace, and I understand that the foetal heartbeat can potentially be affected by the treatment or activity of the mother, such as administration of drugs and contractions. According to the HSE website, a National Maternity Healthcare Record (NMHCR) was developed in 2011. This is the patient file of the mother and one of the components is a "CTG Wallet" for storing the CTG trace printouts. I am satisfied that both the foetal heartbeat and contraction information are joint personal information of the mother and baby. I find that Section 37(7) applies.

In the circumstances of this case, where I have found that Section 37(7) applies to the information at issue, the question of providing the information in a redacted form does not arise. In any case, if the foetal heartbeat alone was to be considered for release, the question of whether the redacted record would be misleading would also have to be considered (section 18 of the FOI Act refers)

There are some circumstances, provided for at section 37(2), in which the exemptions at section 37(1) and/or 37(7) do not apply. I am satisfied that none of the circumstances identified at section 37(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. I note that the applicant was informed by the HSE that the written consent of the mother was required for the information to be released and that this has not been provided. I find that section 37(2) does not apply to the withheld information.

I turn now to section 37(5) which also provides for exceptions to the section 37(1) and 37(7) exemptions. I see no basis for finding that the grant of the request would benefit the individuals to whom the information relates and I am satisfied that section 37(5)(b) does not apply in this case.

Section 37(5)(a) - Public Interest
Section 37(5)(a) provides for access to the personal information of a third party where the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates. In relation to the question of where 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 itself recognises a public interest in ensuring the openness and accountability of public bodies, regarding how they conduct their business. The FOI Act further recognises the public interest in persons being able to exercise their rights under the FOI Act, although this alone would not be sufficient, in my view, to warrant the breach of an individual's right to privacy. On the other hand, the FOI Act also recognises a very strong public interest in protecting privacy rights - in both in the language of section 37 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. I find that, in the circumstances of this case, the right to privacy of the mother whose personal information is in the record outweighs the public interest in granting the applicant's request.

Section 37(8) - Access to the personal information of minors and deceased persons
Section 37(8) provides that, notwithstanding subsection (1), the Minister for Finance may provide by regulations for the grant of access where (a) "the individual to whom the record concerned relates belongs to a class specified in the regulations and the requester concerned is the parent or guardian of the individual" or (b)"the individual to whom the record relates is dead and the requester concerned is a member of a class specified in the regulations". The FOI Act 1997 (Section 28(6)) Regulations, 2009 (S.I. No. 387 of 2009), continued in force by section 54(2) and Schedule 5 of the FOI Act 2014, in turn, make provision for access to personal information of minors and deceased persons in certain circumstances.

In the particular circumstances of this case, as I have found above that the information at issue is the joint personal information of the baby and the mother, I am satisfied that there is no information to which the provisions of section 37(8) can be applied. This being the case, I am satisfied that it is not necessary for me to give detailed consideration to the application of section 37(8).

The HSE also informed this Office that the original record was of poor quality, and that, when photocopied, the copy was coming out blank. Having examined an extract of the record provided by the HSE, I agree that the quality of the extract is so poor as to make it impossible to discern any information. However, the quality of the record would only be an issue if it otherwise fell to be released under FOI.

In summary, I find that section 37(7) applies and that none of the exceptions under section 37 apply to the information.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the HSE to refuse the applicant's request.

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

Elizabeth Dolan
Senior Investigator