Case Number: 170198

Whether the HSE was justified in its decision to refuse access to the applicant's medical records on the basis that sections 37(3) and 37(4) 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 December 2016 the applicant requested access to her medical records held by a HSE Community Healthcare organisation. In its original decision the HSE granted access to most of the records and withheld access, in full and in part, to other records. The original decision was issued to the applicant in three letters; one letter issued on 30 January 2017, and two letters issued on 1 February 2017. However, it is not clear what exemption provisions of the FOI Act the original decision maker relied on, neither it is clear whether all of the records the subject of the request were identified by the decision maker.

The applicant applied for an internal review on 7 March 2017. In its internal review decision, the HSE stated that it had amended the original decision and that in so doing, it refused access to records numbered from 269-333 in the applicant's medical records, on the basis of section 30(1)(a) and section 37(3) of the FOI Act. 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. On 24 April 2017, this Office received an application for review from the applicant.

In her application, the applicant identified a number of records at issue, including records numbered from 238-262. Having examined that particular group of records (in fact, from 238-261), I note, from the schedule provided by the HSE to this Office, that those records were either created after the date of the applicant's FOI request to the HSE, or were previously released to the applicant. Accordingly, those records (238-261 inclusive) are not within the scope of this review.

During the course of the review, the Investigator established that the withheld records at issue concern those numbered from 262-333 of the applicant's medical records. The records are collectively referred to in the decision schedule as 'Psychology file'.

I consider that this review should now be brought to a close by the issue of a formal, binding decision. In conducting my review, I have had regard to submissions received from the applicant and the HSE 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.

Scope of Review

The HSE exempted the records at issue on the basis of section 30(1)(a) and section 37(3) of the FOI Act. However, having examined the records, I consider that the mandatory exemption at section 37(3) is the most appropriate exemption to examine given the extent of personal information that appears in the records.

Consequently, this review relates solely to whether the decision of the HSE to refuse access to the applicant's records, identified as 'Psychology file', 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 treat the records as one record, as it would be misleading and impracticable in this case 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.

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.

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.

In her submission, the applicant explained why she wanted access to the records. I see no reason to provide details of the applicant's reason in this decision, other than to note that the applicant said she should not be hindered in the pursuit of the objective of her stated reasons. However, 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. In this case, however, requests falling to be refused under section 37(3) are not subject to a public interest balancing test.

I must base my decision in relation to whether disclosure of the information in the records might be prejudicial to the applicant's physical or mental health, well-being or emotional condition, on the evidence provided by both the applicant and the HSE.

I have considered the evidence presented by the HSE in support of its view that section 37(3) should apply, and I note that the applicant has not provided any evidence which might serve to refute the HSE's evidence. I do not consider it appropriate here to elaborate on the HSE's reasons for applying this section of the Act, or to describe in any detail the contents of the records to which section 37(3) has been applied. The HSE informed this Office that in addition to considering the contents of the applicant's file, its decision makers consulted clinical staff who know the applicant. It is the opinion of professionals in the Psychology Service set out in a report provided to this Office that direct release of the records to the applicant could be detrimental to her emotional health and well-being. The HSE believes that it would be best if the records were released to a nominated health professional who could interpret the material involved. The HSE said that the applicant still attends its services. In these circumstances, I am satisfied that the HSE has justified its reliance on section 37(3) of the FOI Act.

I find that the HSE was justified in refusing access to the records on the basis that sections 37(3) and 37(4) of the FOI Act apply. The HSE's offer under section 37(4) to the record to a health professional, if requested by the applicant, remains.

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 records 262-333 are exempt from release under section 37(3) 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