Case Number: 160528

Whether the HSE was justified in its decision to refuse access to records, relating to the applicant under section 37(1) and section 37(8) of the FOI Act

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 January 2015, the applicant made a request under the FOI Act for access to medical records of his late mother. The records concern a period of six weeks during which the applicant's late mother was in a care home before she passed away in January 2015. In a letter dated 25 March 2015, the HSE refused access to the records on the basis of section 15(1)(g) of the FOI Act. The applicant states that he did not receive that letter. Following further correspondence, on 7 September 2016, the HSE accepted a request for an internal review from the applicant. On 25 November 2016, the HSE refused access to the records on the basis of section 37 of the Act. On 30 November 2016, this Office received an application from the applicant for a review of the decision of the HSE.

In conducting my review, I have had regard to the submissions of the HSE and the applicant, and to correspondence between the applicant, the HSE and this Office. I have also had regard to the content of the records at issue and to the provisions of the FOI Act. I consider that the review should now be brought to a close by the issue of a formal, binding decision.

Scope of Review

This review is solely concerned with whether the HSE was justified in deciding to refuse access to medical records of the applicant's late mother, held by a hospital, on the basis of sections 37(1) and 37(8) of the FOI Act.

Apparently, a separate FOI request was made to another hospital but any decision on that is not before me for review.

Preliminary Matters

I offer my condolences to the applicant in light of the circumstances which form the background to this request. However, I cannot take into account, or make any findings on, many of the issues raised by the applicant, since my remit under the FOI Act is relatively narrow.

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 and give a detailed analysis of some of the issues is limited.

In addition, section 13(4) of the Act requires that, subject to the Act, any reasons a requester gives for making a request shall be disregarded. This means that the applicant's motivation cannot be considered except insofar as this might be relevant to the consideration of public interest provisions.

When a record is released under the FOI Act, it effectively amounts to disclosure to the world at large, as the Act places no restrictions on the type or extent of the subsequent use to which a record may be put. This approach has been upheld by the Courts including in the recent decision of Mc Dermott J. in F.P. and the Information Commissioner [2014 No. 114 MCA]. Thus, the applicant's offer to restrict access to the records to himself, certain doctors and An Garda Síochána, does not change that position.

Analysis and Findings

In addition to the personal information relating to the applicant's deceased mother, there is a small amount of personal information in the records relating to individuals other than the applicant.

Section 37 - Personal information

Section 37(1)
Section 37(1) of the FOI Act provides that an FOI body shall refuse to grant a request if access to the record concerned would involve the disclosure of personal information relating to an individual other than the requester (including personal information relating to a deceased individual). The effect of section 37(1) is that a record disclosing personal information of a third party cannot be released to another person unless one of the other relevant provisions of section 37 applies - in this case section 37(2), or 37(8). Accordingly, I find that section 37(1) of the Act applies to information in a number of records.

Section 37(2)
Section 37(2) of the FOI Act sets out certain circumstances in which section 37(1) does 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.
Consequently, I find that section 37(2) does not apply to the information in the records at issue.

Section 37(8)(b) - Access to the personal information of deceased persons
A potential right of access to records of a deceased person arises under section 37(8) which provides that, notwithstanding section 37(1), the Minister may provide by regulations for the grant of a request where:
"(b) the individual to whom the record concerned relates is dead and the requester concerned is a member of a class specified in the regulations."

The relevant regulations are the Freedom of Information Act, 1997 (Section 28(6)) Regulations, 2009 (S.I. no. 387 of 2009). The regulations remain in force, notwithstanding the enactment of the FOI Act, 2014. I note that the FOI request was made before the coming into force of the Freedom of Information Act 2014 (Section 37(8)) Regulations 2016 (S.I. No. 218 of 2016) as amended by S.I. No. 558 of 2016. Article 4(1)(b)(iii) of the regulations provides that access shall be granted to personal information relating to a deceased person where the requester is:

"the spouse or the next of kin of the individual where in the opinion of the head, having regard to all the circumstances and to any relevant guidelines published by the Minister, the public interest, including the public interest in the confidentiality of personal information, would on balance be better served by granting than by refusing to grant the request."

The applicant is the son of the deceased and along with other siblings, would be the next of kin, in accordance with section 71(2) of the Succession Act, 1965. Therefore, the issue to be addressed is whether, having regard to all the circumstances, the public interest, including the public interest in the confidentiality of personal information, would on balance be better served by granting than by refusing to grant the request, having regard to all the circumstances and to any relevant guidelines published by the Minister.

In considering the public interest test, I note the judgment of the Supreme Court issued in July 2011 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 (available at www.oic.ie). In the judgment, the Supreme Court outlined the approach that the Commissioner should take when balancing the public interest in granting access to personal information with the public interest in upholding the right to privacy of the individual(s) to whom that information relates. Following the approach of the Supreme Court, 'a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law' must be distinguished from a private interest.

It should be noted that Macken J.'s comments in Rotunda referred to the public interest test contained in the confidentiality exemptions in the FOI Act, rather than the very specific test set out at article 4(1)(b)(iii) of the Regulations. It is plain from the contents of the Regulations, which refer to a consideration of "all the circumstances" of the case, as well as the matters specified in the guidelines, that such circumstances and matters, where relevant, cannot be excluded solely on the basis that they are not public interest factors. It is also plain from the Regulations that the Oireachtas has determined that certain categories of requester shall be granted access to the records of deceased persons provided certain requirements are met.

In his letter of application and in his submission, the applicant stated why he wanted access to the records and how he believed that release of the records would be in the public interest. He said that he has a vital personal medical interest and right to his mother's medical history. I will not recite further detail of the applicant's reasons here but I have taken them into consideration in this review.

The HSE made a submission in support of its decision. The HSE stated that the records are "inherently private". It also stated that it considered there is a very strong public interest in protecting the privacy of the deceased, and that release of the records could potentially "damage the dignity" of the deceased. It said that once records are released under FOI, the public body and other family members of the deceased have no control over how such records are used. It set out in some detail the history of its engagement with the applicant.

Guidance Notes have been published by the Minister for consideration by decision makers in applying the 2009 Regulations. The Guidance Notes specify certain factors to be taken into consideration in deciding if release is appropriate to such persons, including the following:
"Each case will have to be judged on its own merits. The decision maker will have to balance the public interest in the confidentiality of personal information against the public interest in the right of the requester to access the records. While section 13(4) requires that the decision maker shall disregard any reasons the requester gives for the request, in making a judgement in relation to the records of deceased persons, it is reasonable for a decision maker to inform him or herself as fully as possible of all the circumstances relevant to the request. In reaching this decision, the decision maker should take the following into consideration:

• The confidentiality of personal information as set out in section 37(1) of the Act.
• Would the deceased have consented to the release of the records to the requester when living? If so, this would strengthen the case for deciding to release after death...
• Would release damage the good name and character of the deceased?
• The nature of the relationship of the requester to the deceased and the circumstances of the relationship prior to the death of the deceased...
• The nature of the records to be released. If the record is inherently private, and of a very sensitive nature, then it is likely not to be released unless there are compelling reasons for so doing. Such reasons might include the release to a blood relative of records that show a hereditary condition. In relation to medical records, due regard should be had to the confidentiality of medical records in accordance with the Irish Medical Council Guide to Ethical Conduct and Behaviour. Records containing joint personal information of both the requester and the deceased might, subject to other considerations, fall to be released...
• Any other circumstances relevant to the request as set out by the requester. These should be taken into account by the decision maker in reaching a decision on the request."

With reference to the Guidelines as set out above, I am satisfied that the records at issue are confidential, inherently private and very sensitive. On the matter of confidentiality, the Guidance Notes suggest that in relation to medical records, due regard should be had to the confidentiality of medical records in accordance with the Irish Medical Council Guide to Ethical Conduct and Behaviour. It is noteworthy that this Guide itself acknowledges that there are circumstances where release may be appropriate. Indeed, it acknowledges that information may be disclosed with the individual's consent, and that this consent may extend to disclosure after death. The Guide also suggests that regard might be had to certain factors if it is unclear whether the patient consented to disclosure of information after their death, including how disclosure of the information might benefit or cause distress to the deceased's family or carers, the effect of disclosure on the reputation of the deceased and the purpose of the disclosure.

It is not possible to know what the deceased would have wished as regards release of her records. However, I note that the applicant was not the nominated family member or contact in the hospital records.

I have carefully considered the provisions of the regulations, the issues identified in the Guidance Notes and I have regard to the public interest in openness, transparency and accountability as regards the care and treatment of the deceased. As regards "all of the circumstances" to which I have had regard, it is important to note that I must, of necessity, be circumspect in describing or commenting on the factors involved since to do so would disclose information contained in exempt records. While it is regrettable that this decision does not include a more detailed analysis of the circumstances, I am constrained in what I can say having regard to the provisions of section 25(3) of the Act.

I am satisfied that in all the circumstances and having regard to the Guidelines, the public interest in the release of the withheld information in this instance does not, on balance, outweigh the public interest in protecting the public interest in the confidentiality of personal information.

As noted above, some of the records contain information relating to parties other than the applicant, his deceased mother and the staff of the hospital. For clarity, I must say here that I am satisfied that the information in question is personal information in relation to those individuals and that there is no overriding public interest in release of such information that would outweigh the privacy rights of the individuals.

Accordingly, I find that the HSE was justified in its decision to refuse access to the records, under section 37(1) and/or section 37(8) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the HSE to refuse access to records under section 37(1) and/or section 37(8) of the FOI Act.

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 not later than four weeks after notice of the decision was given to the person bringing the appeal.

Elizabeth Dolan
Senior Investigator