Case Number: 160567

Whether the Service 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

The applicant sought access to all records relating to her, including her medical files, from the Service for the period 1985 to 25 August 2016. On 13 September 2016, the Service refused her request on the basis that section 37(3) of the FOI Act applied.

The applicant made an internal review request on 28 September 2016. The Service affirmed its original decision to refuse access to the records sought on the same grounds. The applicant applied to this Office for a review of the Service's decision on 18 December 2016.

While the Service relied on section 37(3) to refuse access to the records sought in its original decision and at internal review stage, in correspondence with this Office it indicated that it was relying on section 35(1) in its refusal of 22 records.

I also note that Ms Sandra Murdiff, Investigator, informed the applicant about the provisions of section 37(4) of the FOI Act and asked her if she would be satisfied with the records concerned being released to a relevant health professional. The applicant indicated that she would not be happy to settle the case on that basis.

Accordingly, I have decided to bring this review to a close by way of a formal binding decision.

In conducting this review, I have had regard to the submissions of the applicant, to the submissions of the Service and to the content of the records at issue.

Scope of Review

This review is solely concerned with whether the Service was justified in its decision to refuse access to the records sought on the basis of sections 35(1) and 37(3) of the FOI Act.

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 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.

Finally, it is relevant to note that this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.

Analysis and Findings

Sections 35 & 37
I am of the view that it is appropriate to treat the file in its entirety as a single entity, given that the contents of the file are of a medical/psychiatric nature and are necessarily interlinked. Having examined the records at issue and the submission of the Service, I consider the provisions of section 37(3) to be more relevant. I am not required to consider any other exemptions that the Service relied upon; however, for the sake of completeness I would like to make a few comments in this regard.

The Service initially relied on section 37(3) to refuse access to all of the records at issue. However, in a schedule submitted to this Office during the course of this review, it cited section 35(1) (confidential information) of the Act in its refusal to release records numbered 46, 51, 60, 93, 113, 124, 129, 131, 133, 135, 138, 140, 151, 153, 155, 176, 197, 201, 202, 204, 207 and 236 in the schedule. Under the heading "Basis of Refusal" in relation to each record it stated "3rd Party Information".

Accordingly, it was not clear whether the Service intended to rely on section 35 or on section 37(1), which provides for the refusal of personal information relating to third parties. I note that Ms Murdiff asked it to clarify which information it considered to have been submitted in confidence, or in the alternative, to clarify whether it considered the relevant records to contain the personal information of individuals other than staff of an FOI body. She also asked it to explain what public interest factors it had considered for and against release of the information concerned in either case. The Service's response did not address any of these queries and merely referred to section 35 in passing and stated that it had not contacted any of the third parties mentioned in the records, as it had refused to grant access.

Having examined the records concerned, I am of the view that these are clearly referrals between hospitals and health professionals relating to the applicant. In fact, they are variously described as "Hospital letter", "Specialist Letter" or "GP Referral Letter" in the schedule provided. On the face of it, I do not see any information which had been submitted in confidence or that comprised the personal information of third parties other than the applicant, as defined in section 2 of the FOI Act.

The Service has not explained its application of section 35 to the records concerned. Furthermore, it has not set out its basis for finding that the particular records at issue contain the personal information of third parties, other than staff or service providers of FOI bodies. Accordingly, I am of the view that it was not justified withholding records 46, 51, 60, 93, 113, 124, 129, 131, 133, 135, 138, 140, 151, 153, 155, 176, 197, 201, 202, 204, 207 and 236 on the basis of section 35(1) or 37(1).

While I do not consider that the Service has justified its refusal of the records listed above under sections 35 or 37(1), I am satisfied that they also fall to be considered along with the remainder of the records under the provisions of section 37(3) and (4) of the Act. There are a few references to third parties in various other parts of the file but, as explained above, I will consider the file as a single record under section 37(3) since it comprises the applicant's medical and related interactions with the Service and associated services over many years.

Sections 37(3) and 37(4)
Section 37(3) of the FOI Act provides that an FOI body may refuse to grant access to records of a medical or psychiatric nature relating to the requester where it considers that "disclosure of the information concerned to the requester might be prejudicial to his or her physical or mental health, well-being or emotional condition".

Section 37(4) provides that where access to a record has been refused under section 37(3),

"(a) there shall be included in the notice ... 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. 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.

Section 37(3)
In her submissions to this Office, the applicant has provided a lot of background information relating to her dealings with the Service. She stated that the Service had indicated that it would release the records to her in response to an earlier FOI request and did not do so. She also stated that the manner in which the Service has dealt with her FOI requests has caused her unnecessary stress. In essence, she is of the view that her physical or mental health would be at no risk if she was granted access to the files at issue, and believes that she would be at greater risk if the records were withheld.

I note that the applicant has made complaints to the Ombudsman and to the Data Protection Commissioner about the Service. I can understand her frustration at being refused access to her own medical records; however, section 37(3) is there to ensure that an applicant's mental health, well-being or emotional condition is not prejudiced by release of such records.

In arriving at a decision I must weigh up the applicant's assertions against the evidence provided by the Serviceto support its decision. The Service submitted a letter from a consultant psychiatrist who had previously dealt with the applicant. The consultant stated he was of the view that it would be detrimental to the applicant's mental health to grant release of and access to the records concerned.

The Commissioner considers that in a case where section 37(3) is relied upon to refuse direct access to a record, there must be evidence to support the opinion that there is a possibility of harm being caused to the general health, welfare and condition of the requester as a result of direct access to the record in question. I have given careful consideration to the evidence presented in this regard by the Service , and I note that the applicant has not provided any evidence which might be considered to refute the Service's evidence.

While I do not consider that I can elaborate further on the the Service's reasons for applying this section of the Act, in the circumstances of this case I am satisfied that the available evidence supports the Service's decision that granting the applicant access to her medical records might be prejudicial to her physical or mental health, well-being or emotional condition. Therefore, I find that the Service was justified in its decision to refuse direct access to the records concerned on the basis of section 37(3) of the FOI Act.

Section 37(4)
While the Service's original and internal review decisions cited section 37(3), it did not refer as required to section 37(4). In the Commissioner's view the intention of section 37(4) is to ensure that information about possibly disturbing records may be given with the assistance of a health professional of the requester's choosing.

I note that the applicant was unaware of section 37(4) until she spoke with Ms Murdiff. I also note that Ms Murdiff drew the Service's attention to its obligations under section 37(4) and asked if it was willing to offer access to records to such health professional having the relevant expertise. The Service responded by stating that the applicant had not requested that access be given to a relevant health professional and that this had not been offered to her.

It is important to note that section 37(4) applies automatically in any instance in which a public body relies on section 37(3). Accordingly, I am satisfied that the Service did not meet its obligations under section 37(4) of the Act, and I find accordingly. The Service must, therefore, at the applicant's request, offer access to the records to a health professional having expertise in the subject matter of the records concerned.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby vary the decision of the Service. I affirm the Service's decision to refuse access to the records at issue under section 37(3) of the Act. I also find that section 37(4) is engaged in relation to the offer of access to the records, if requested by the applicant, to such appropriate health professional having experience in the subject matter as the applicant may specify.

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

Elizabeth Dolan
Senior Investigator