Case Number: 170127

Whether the Hospital was justified in its decision to refuse access to the name(s) of person(s) listed as deceased from the Hospital on a certain date under section 37 of the FOI Act

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

Background

The applicant submitted a request to the Hospital on 27 September 2016 for access to the name(s) of person(s) listed as deceased from the Hospital on or about 10 January 2004 including, but not limited to, four specified conditions of death. On 5 October 2016, the Hospital refused the request on the ground that the information sought is personal information relating to a third party or third parties.

On 1 November 2016, the applicant sought an internal review of that decision. On 6 December 2016, the applicant notified this Office of the Hospital's failure to make a decision on his internal review request. Following correspondence between the Hospital, the applicant, and this Office, the Hospital wrote to the applicant on 25 January 2017 affirming its original decision to refuse his request. The applicant was dissatisfied with the Hospital's decision and on 16 March 2017 applied to this Office for a review of that decision.

I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out this review, I have had regard to the correspondence between the Hospital and the applicant. I have also had regard to the communications between this Office and both the applicant and the Hospital on the matter.

Scope of Review

This review is solely concerned with whether the Hospital was justified in its decision to refuse the applicant's request for access to the names of persons listed as deceased from the Hospital on or about 10 January 2004 including, but not limited to, four specified conditions of death under section 37 of the FOI Act.

Analysis and Findings

Section 37(1) of the FOI Act provides for the mandatory refusal of a request where the FOI body considers that access to the record sought would involve the disclosure of personal information relating to an individual or individuals other than the requester, including personal information relating to a deceased individual. Section 2 of the FOI Act defines the term "personal information" as information about an identifiable individual that would, in the ordinary course of events, be known only to the individual or his/her family or friends, or information about the individual that is held by a public body on the understanding that it would be treated as confidential. I am satisfied that the information sought, i.e. the names of deceased individuals, is clearly "personal information" as defined in the FOI Act. I find, therefore, that section 37(1) applies to the information at issue.

The effect of section 37(1) applying is that a record disclosing personal information relating to a third party or third parties cannot be released to another person, unless one of the other relevant provisions of section 37 applies, which I will deal with below.

Section 37(2) sets out certain circumstances in which section 37(1) does not apply. I am satisfied that none of those circumstances arise in this case. Section 37(5) of the FOI Act provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance, (a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or (b) the grant of the information would be to the benefit of the person to whom the information relates.

I am satisfied that the release of the information at issue would not be to the benefit of the individuals concerned and that section 37(5)(b) does not apply. In relation to paragraph (a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the right of privacy of the individuals to whom the information relates.

In relation to the issue of the public interest, it is important to have regard to the comments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner[2011] IESC 26 ("the Rotunda case"). It is noted that a public interest ("a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law") should be distinguished from a private interest.

The FOI Act itself recognises the public interest in ensuring the transparency and accountability of public bodies. On the other hand, however, the language of section 37 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy, which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution. Accordingly, when considering section 37(5)(a), privacy rights will 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.

It is not clear to me how the release of the names of individuals listed as deceased from the Hospital on a certain date would serve to enhance the transparency and accountability of the Hospital to any significant extent. On the other hand, the information sought by the applicant is particularly sensitive, as it concerns the release of medical details of deceased individuals. I am also cognisant of the fact that disclosure of a record under FOI is, in effect, disclosure to the world at large, as the Act places no restriction upon the uses to which information released under FOI may be put. I find, therefore, that the public interest in granting the applicant's request does not, on balance, outweigh the public interest in favour of protecting the privacy rights of the person or persons concerned. I therefore find that section 37(5)(a) does not apply in the circumstances.

For the avoidance of doubt, I should add that while the Minister for Public Expenditure and Reform has introduced regulations, pursuant to section 37(8), that provide for access to records of deceased persons by certain categories of requester, no evidence has been presented to me that the applicant is a member of any of those categories. The categories include personal representatives, persons on whom a function is conferred by law in relation to the deceased or his or her estate, and the spouse or the next of kin of the deceased. I find, therefore, that section 37(8) is of no relevance in this case.

In conclusion, therefore, I find that the Hospital was justified in refusing access to the information sought by the applicant under section 37(1) of the FOI Act.

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 in this case.

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.

Stephen Rafferty
Senior Investigator