Case Number: 160214

Whether the HSE was justified in its decision to refuse access to the applicant's medical records on the basis that section 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

On 20 November 2015 the applicant, through her solicitors, sought access to her GP medical records. In its decision of 11 January 2016, the HSE refused access to the records on the basis that section 37(3) of the FOI Act applied. In accordance with section 37(4) of the Act, the HSE offered the applicant an opportunity to nominate a health professional to access the records concerned on her behalf. The applicant sought an internal review on 5 February. The HSE's internal review decision of 24 February affirmed the original decision. The applicant's solicitors submitted an application for review to this Office on 11 May 2016.

During the course of this review, this Office wrote to the applicant, through her solicitors, and invited her to make a submission. However, a submission was not received.

In conducting this review, I have had regard 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 HSE to refuse access to the applicant's GP medical records was justified on the basis of sections 37(3) and 37(4) of the FOI Act. Given the content and context of the records, I will, as the HSE has done, treat the medical records as one record, as it would be misleading to consider parts in isolation from other records.

Preliminary Matters

Although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires 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 contents of the records is limited.

 

Analysis and Findings

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 FOI body, the applicant and the health professional having expertise in relation to the subject-matter of the record as the requester may specify. 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.

As noted above, no submission was received from the applicant. Consequently, I must base my decision in relation to whether disclosure of the information in records might be prejudicial to the applicant's physical or mental health, well-being or emotional condition, on the evidence provided by the HSE. The former Commissioner explained his approach to the operation of the section 37(3) (section 28(3) of the FOI Act 1997) in case number 99189- 'X and a Health Board' [published on www.oic.ie].

I have considered the evidence presented by the HSE in support of its case, and note that the applicant has not provided any evidence which might serve to refute the HSE's evidence. I do not consider that I can elaborate further on the HSE's reasons for applying this section of the Act, or describe in any detail the contents of the records to which section 37(3) has been applied. In these circumstances, I am satisfied that the available evidence supports the HSE's decision that granting the applicant access to her GP medical records might be prejudicial to physical or mental health, well-being or emotional condition, and that the HSE was justified in its reliance on section 37(3) of the FOI Act. Accordingly, I find that the applicant does not have a right of access to her GP medical records by virtue of section 37(3) of the FOI Act.

I am satisfied that the HSE was justified in refusing access to the applicant's GP medical records on the basis that sections 37(3) and 37(4) of the FOI Act apply, and I find accordingly.

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 that the applicant's GP medical records are exempt from release under sections 37(3) and section 37(4) of the FOI Act.

 

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