Case Number: 160010

Whether the Hospital was justified in its decision to refuse access to some information in the applicant's medical records on the basis that sections 32(1)(b), 35(1)(a) and 37(3) of the FOI Act applied

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 FOI request of 10 September 2015, the applicant sought access to his medical records for the period [ ]. In its decision of 30 November 2015, the Hospital identified 130 pages of records as well as x-ray and blood results as relevant and granted access to all except pages 35-40, 53-55 and 127. Access to these ten pages was refused on the basis that sections 32(1)(b), 35(1)(a) and 37(3) applied. The applicant sought an internal review on 11 December 2015 in relation to pages 35-40 and 53-55 only. The Hospital's internal review decision of 4 January 2016 affirmed the original decision. The applicant submitted an application for review to this Office on 6 January 2016.

When this review was assigned to an Investigator, a submission was sought from the Hospital in support of the its position as is the normal review procedure. The Investigator also pointed out to the Hospital that, where access to information is refused on the basis that section 37(3) applies, the decision must include a notice in accordance with section 37(4). In response, the Hospital fully accepted that the provisions of section 37(4) should have been referred to in its decisions. It has now revised its position and is relying on sections 37(3) and 37(4) only as the basis of refusal. The applicant was also invited to make a submission but none was received.

In conducting this review, I have had regard to the submissions of the applicant, to the submissions of the Hospital, to the content of the records 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 Hospital to refuse access to pages 35 to 40 and 53 to 55 was justified on the basis of sections 37(3) and 37(4).

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.

Section 22
Section 22(12)(b) of the FOI Act provides that a decision to refuse to grant access to a record "shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified."

Section 25(3)
Although I am obliged to give reasons for my decision, Section 25(3) of the FOI Act requires the me to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the extent to which I can describe the content of the records or give detailed reasons for my decision is limited.

The release of a record under the FOI Act is understood, effectively, to be equivalent to its release to the world at large.
Analysis and Findings

As set out above, the revised position of the Hospital is that sections 37(3) and 37(4) apply to the pages of the medical records to which access has been refused.

Sections 37(3) and 37(4)
Section 37(3) of the FOI Act provides:

" Where an FOI request relates to
(a) a record of a medical or psychiatric nature relating to the requester concerned, or
(b) a record kept for the purposes of, or obtained in the course of the carrying out of, social work in relation to the requester,

and, in the opinion of the head concerned, disclosure of the information concerned to the requester might be prejudicial to his or her physical or mental health, well-being or emotional condition, the head may decide to refuse to grant the request."

Section 37(4) provides:

" Where, pursuant to subsection (3), a head refuses to grant an FOI request

(a) there shall be included in the notice under section 13 (1) in relation to the matter a statement to the effect that, if the requester requests the head to do so, the head will offer access to the record concerned, and keep it available for that purpose, in accordance with section 13 (3) to such health professional having expertise in relation to the subject-matter of the record as the requester may specify, and

(b) if the requester so requests the head, he or she shall offer access to the record to such health professional as aforesaid, and keep it available for that purpose, in accordance with section 13 (3)."

Section 13(3) provides for the records to be kept available for the purposes of access for a period of 4 weeks after the making of a decision.

The intention of section 37(4) would appear to be to ensure that information about possibly disturbing records may be given with the assistance of a health professional of the requester's choosing. The FOI Act does not appear to envisage any role for the Commissioner in relation to the making of arrangements between the Hospital, the applicant and the health professional having expertise in relation to the subject-matter of the record as the requester may speciy. I note that section 37 (9) of the FOI Act defines 'health professional' and that regulations made under that section (SI No 368 of 2001) prescribe classes of health professional.

Requests falling to be refused under section 37(3) are not subject to the public interest balancing test at section 37(5)(a) of the FOI Act.

The withheld records are of a psychiatric nature. While the Hospital's original and internal review decisions cited section 37(3), they did not refer as required to section 37(4). As far as I am aware, the applicant has not been informed of the option of access being made available in accordance with section 37(4). I note, however, that the applicant is represented by a solicitor. Having examined the records at issue and the submissions of the Hospital, I consider the provisions of section 37(3) to be relevant.

In the absence of relevant evidence from a psychiatrist or other appropriate health professional, I have to base my decision in relation to whether disclosure of the information in them might be prejudicial to the applicant's mental health, well-being or emotional condition on the only evidence available, that is, the evidence provided by the Hospital. As noted above, no submission was received from the applicant. The former Commissioner explained his approach to the operation of the section 28(3) provision (section 37(3) of the 2014 Act) in Case Number 99189- X and a Health Board [published on www.oic.ie]. I believe that, in this case, the Hospital has provided evidence to support the opinion that there is a real and tangible possibility that harm might be caused to the well-being of the requester as a result of unmediated access to the records in question.

I am satisfied that the Hospital is justified in refusing access to these records on the basis that section 37(3) of the FOI Act applies, and I find accordingly. However, under section 37(4) the Hospital must, at the applicant's request, offer access to the records to a health professional having expertise in the subject matter of the records.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the Hospital that the withheld pages are exempt from release under section 37(3) and I find that section 37(4) is engaged in relation to the offer of access to an appropriate health professional if requested by the applicant.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated by the applicant not later than four weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.

Elizabeth Dolan
Senior Investigator